ENTERPRISE BARGAINING – protected action ballot – ss.437, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission determined to make protected action ballot order (PABO) – controversy regarding form of ballot actions – out of ten actions at first instance determined to include six – determined not to include certain actions in PABO as actions did not fall within ambit of industrial action – both parties applications for permission to appeal heard together – Mornington Peninsula Shire Council (Council) advanced there were multiple errors of law in particular issues of construction – contended certain actions were framed as periodic or indefinite interruptions or stoppages to work in order to take the described action – contended definition of industrial action should be read down to prevent widening of its scope – submitted All Hallows’ School should be applied – ASU contended, amongst other issues, that there was requirement to consider whether or not action described, had potential to be industrial action and whether stoppage of work could be conditioned by doing a particular act – contended certain actions were within definition of industrial action – Full Bench considered certain actions properly described as industrial action – rejected some of Council’s submissions as action’s described activity had a delineating effect – found first instance construction of two of the actions did not describe the nature of any industrial action – did not accept ASU’s submission – Full Bench granted permission to appeal to Council – Council demonstrated arguable case of appellable error and raised important issues regarding construction of legislative scheme regulating PABO applications – also granted ASU permission to appeal because raised interesting questions about kind of action described in protected action ballot question which was capable of falling within description of nature of proposed industrial action – Council’s appeal upheld in part and orders varied – ASU’s appeal dismissed. Appeal by Mornington Peninsula Shire Council against decision and orders of Bissett C of 14 August 2017 [[2017] FWC 4184], [PR595300] and [PR595296] Re: Australian Services Union; Cross appeal by Australian Services Union
September 28, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision concerning dispute arising under enterprise agreement – dispute concerned application of redundancy under clause 23 of the Farstad (Indian Pacific) P/L (Integrated Ratings, Cooks and Caterers) Offshore Oil and Gas Enterprise Agreement 2015 (the Agreement) – decision at first instance dealt with meaning and interpretation of clause 23 – appellant challenged decision on a number of grounds – permission to appeal not contested – Full Bench proceeded on basis that appellant had right of appeal – whether decision under appeal was demonstrated to be incorrect – appellant submitted that the Deputy President erred in answering the questions put to her for determination by not dealing with or ‘failing to find’ on certain matters – Full Bench considered appellant’s approach misconceived – found that the questions were open-ended and that error could not be demonstrated in the Deputy President’s generalised answer to them – found that parties did not call for resolution of any specifically identified issue in dispute – found that the parties did not provide the Deputy President with factual background of dispute so as to permit proper determination of how clause 23 should apply in contemplated retrenchment of appellant’s employees – Full Bench observed that appellate intervention is not justified where the parties to the proceedings to date have failed to clearly identify the issues in dispute – Full Bench rejected each appeal ground – not satisfied that appealable error was demonstrated – appeal dismissed – as decision is unlikely to resolve matter to finality, the dispute proceedings in C2017/1574 are referred back to the Deputy President for further mediation, conciliation or arbitration as necessary. Appeal by Farstad Shipping (Indian Pacific) P/L against decision of Binet DP of 19 May 2017 [[2017] FWC 2650] Re: Maritime Union of Australia
September 28, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with dispute arising under the QR National Coal and Regional Freight Support Enterprise Agreement 2010 (2010 Agreement) and the Aurizon Staff Enterprise Agreement 2014 (2014 Agreement) – jurisdictional objection – whether application could be made under 2010 Agreement – whether Commission could deal with dispute under 2014 Agreement about classification at a date prior to commencement of that Agreement – whether employee could continue to pursue dispute under dispute settlement procedure after employment has ceased – Commission satisfied no jurisdiction to deal with application to the extent it was made pursuant to 2010 Agreement [Streeter applied] – held it was clear dispute continued under the 2014 Agreement – application to be considered as one made under 2014 Agreement – an employee who commenced to deal with a dispute while employed is not precluded from continuing to progress that matter if it remains unresolved notwithstanding they may have ceased to be employed [Jajoo] – Commission satisfied it has jurisdiction to deal with application – matter to be listed for further directions. Pearce v Aurizon Operations Limited
September 28, 2017
CASE PROCEDURES – apprehension of bias – ss.394, 400, 604 Fair Work Act 2009 – appeal against decision and order of Commission made on 20 July 2017 – stay order sought for whole of decision and order pending appeal – application for stay order dismissed – appellant requested recusal of Member from presiding over Full Bench due to apprehended bias – application to recuse determined on papers – appellant alleged apprehended bias arose from paragraph [5] of stay decision – submitted conclusion expressed at [5] of stay decision would give rise to genuine concerns about decision maker’s ability to bring an impartial mind to hearing matter – submitted failure to afford appellant procedural fairness and natural justice – submitted matters raised in stay decision were not put to parties during stay and not debated in arguendo – relevant principles set out in Kirby v Centro Properties Limited (No 2) – elaborated on in Minister for Immigration v Jia Legeng – appellant submitted only first two of three elements in Legeng necessary to establish reasonable apprehension of bias – Laws v Australian Broadcasting Tribunal cited – Bench rejected appellant submissions – held that express reference to s.400 FW Act during stay application not necessary and did not amount to denial of procedural fairness – noted that stay application is interlocutory and views expressed were preliminary in nature with no conclusion made – noted that [6] of stay decision referred to ‘preliminary assessment’ – noted that [5] stated ‘without the opportunity to undertake a thorough analysis of the case material’ – not satisfied that fair-minded lay observer might reasonably apprehend that Member might not bring an impartial mind to resolution of matter – application to recuse refused – application for permission to appeal to be heard by Full Bench as constituted. Appeal by Reliable Petroleum P/L against decision of Hampton C of 20 July 2017 [[2017] FWC 3552] Re: Murray
September 28, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged on 8 August 2017 – respondent raised jurisdictional objection on 22 August 2017 on the basis the application was lodged out of time – both parties advised the extension of time issue would be considered at telephone conference on 8 September 2017 – both parties agreed dismissal was on 17 July 2017 – applicant consulted AMWU representative – AMWU industrial officer prepared and lodged a claim on behalf of the applicant and lodged application one day late – Nulty considered – Commission noted application made one day outside 21 day time limit and a general protections application can only be pursued if time limit is extended – satisfied representative error – applicant appropriately followed up claim and provided credible explanation for entire period of delay – merits of application regarded as a neutral factor – extension of time granted and application referred for conciliation – order reflecting this decision to be issued. Michailidis v JB Chung Enterprises P/L t/a Rapid Tune Greensborough
September 28, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – small family-run business – differing accounts as to conversations between applicant and owner’s son leading up to cessation of employment – Commission made factual findings on balance of probabilities that determined outcome of case – satisfied no communications between applicant and respondent constituted express termination of employment – no action by respondent either intended to end employment or had probable result of bringing employment relationship to an end [Barkla] – applicant’s employment was not terminated at respondent’s initiative – not a case in which applicant was forced to resign because of respondent’s conduct – found applicant was not dismissed within meaning of s.386 – application dismissed. Cooper v A and A Excavations & Landscapes P/L
September 28, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed by Coles Express petrol station – applicant dismissed on the basis of acting dishonestly by claiming she put fuel in her car to test the fuel pump and encouraging a co-worker to take fuel – applicant claimed other employees have stolen in the past and have not been dismissed and she was treated differently because she was a member of the Sikh religion – Commission considered whether dismissal was harsh, unjust or unreasonable – found valid reason for dismissal related to applicant’s conduct – found applicant acted dishonestly when she took fuel without paying, claimed to have forgotten to pay for fuel and encouraged coworker to take fuel – found no evidence that religion or culture influenced applicant’s dismissal – dismissal was not harsh, unjust or unreasonable – application dismissed. Garg v Eureka Operations P/L t/a Coles Express Brandon Park
September 28, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as office administrator on casual basis three days per week from 10 May 2011 until dismissal on 31 May 2017 – respondent asserted dismissal genuine redundancy – applicant contended redundancy a sham and dismissal harsh, unjust and unreasonable – application dealt with by determinative conference – Commission to determine whether respondent no longer required applicant’s job to be performed by anyone due to change in operational requirements – applicant offered full-time role within showroom but declined – Commission considered compliance with consultation obligations under clause 8 of Clerks – Private Sector Award 2010 – satisfied respondent complied with obligations – Commission considered if reasonable for the applicant to be redeployed within respondent’s enterprise – satisfied not reasonable for applicant to be redeployed – found dismissal was a case of genuine redundancy – application dismissed. Staniland v Stegbar P/L
