TERMINATION OF EMPLOYMENT – extension of time – s.604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant’s matter has long history dating back to 2013 when she was dismissed by the respondent – appellant contested decision which was dismissed in December 2014 – appellant appealed decision to a Full Bench of the QIRC and the Industrial Court of Queensland – both applications were dismissed and the appellant subsequently exhausted her rights in the Queensland system in 2015 – on 28 June 2016 appellant lodged application in the Fair Work Commission in respect of alleged unlawful termination of employment – this application was 904 days out of time – Commission found no exceptional circumstances to warrant extension of time and declined to exercise discretion to extend – appellants permission to appeal listed on 11 July 2017 – Full Bench at the hearing granted permission for the appellant to be represented by counsel having regard to the complexity of the matter and to allow it to be dealt with more efficiently – Full Bench observed it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated – appellant contends the Deputy President erred in granting permission to the respondent to be represented by lawyers and in refusing to grant an extension of time for filing her application and in dismissing it – Full Bench considered House v The King – having regard to the grounds of appeal, submissions of the parties, circumstances of the matter, Full Bench found nothing to suggest there was an arguable case the DP’s decision was affected by error – Full Bench also noted under the Fair Work Act, an applicant can only bring one claim – permission to appeal refused. Appeal by Wanninayake against decision of Gooley DP of 15 may 2017 [[2017] FWC 2589] Re: Department of Natural Resources and Mines (DNRM)
September 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – several modern award clauses identified as ‘standard clauses’ to be redrafted as part of plain language project – Full Bench made provisional views regarding wording of these standard clauses – parties invited to comment and hearing was conducted – this decision finalises most outstanding issues regarding plain language redrafting of standard clauses – the redraft of termination of employment clause contested – issue arose as to whether part of clause is a type of provision that could be validly included in a modern award and whether such provision is necessary to achieve modern awards objective – Full Bench invited submissions on these issues – Full Bench decided to give further consideration to drafting of clauses relating to transfer to low paid job on redundancy and employee leaving during redundancy period – parties invited to make submissions and replies – matters will be resolved on the papers unless hearing requested – other finalised standard clauses set out in Attachment A of decision – finalised standard clauses to be incorporated into all exposure drafts in coming months – Full Bench confirmed that Group 4 awards set out preferred structure and order of clauses – clauses in exposure drafts Groups 1, 2 and 3 will be re-ordered to comply as closely as possible with structure applied to awards redrafted in plain language and Group 4 awards – some archaic and overly technical language will be replaced in accordance with plain language guidelines – revised exposure drafts to be published. 4 yearly review of modern awards – Plain language – standard clauses
September 14, 2017
CASE PROCEDURES – appeals – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision to dismiss unfair dismissal application where appellant not protected from unfair dismissal as minimum employment period not met – six grounds of appeal summarised by appellant – no apparent error in findings relating to minimum employment period – no arguable case of error in assumption that relevant provisions of FW Act are constitutionally valid – Full Bench could not see how rule in Jones v Dunkel would have had meaningful application in case where respondent did call evidence relating to relevant issues – even where adverse inference can be drawn, it remains at discretion of decision maker whether one should be drawn – no arguable case of error of kind described in House v The King on this issue – no appealable error in grant of permission for respondent to have legal representation – no basis for contention that finding as to credibility of witness was inconsistent with incontrovertibly established facts – no indication that reflection on possibility application might have been made out of time had any bearing on assessment of whether appellant had met minimum employment period – no apparent error in conclusion as to continuity of employment – Full Bench not persuaded of arguable case of error in first instance decision – no matters of importance or general application identified that would enliven public interest for permission to appeal to be granted – no manifest injustice – not in public interest to grant permission to appeal – permission to appeal refused. Appeal by Calleri against decision of Wilson C of 24 May 2017 [[2017] FWC 2702] Re: Swinburne University of Technology
September 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance dismissed unfair dismissal application – found appellant’s actions breached company policy – found valid reason for dismissal – On 25 July 2017 Full Bench granted permission to appeal – satisfied the appeal attracted the public interest – appeal upheld and decision at first instance quashed – Full Bench found the Commission at first instance was affected by an appealable error namely failure to consider question of proportionality of summary dismissal – application to be re-heard on the papers – in relation to the dismissal appellant submitted a number of mitigating factors should be taken into consideration including appellant’s personal circumstances, service and work history – that the taking of goods were authorised by the appellant’s direct supervisor and that it was common practice for a number other employees to take excess items of stock home – held based on the mitigating circumstances the appellant’s dismissal was harsh – appellant unfairly dismissed – question of compensation remitted for determination. Appeal by Johnson against decision and order of Hamilton DP of 1 June 2017 [[2017] FWC 2866 and PR593193] Re: Northwest Supermarkets P/L t/a Castlemaine IGA
September 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.130, 739 Fair Work Act 2009 – Full Bench – whether employee under the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015 (the Agreement) is entitled to accrue any leave of absence whilst receiving compensation payments – approach to interpretation of enterprise agreements set out in Golden Cockerel and modified in Berri – ambiguity in a provision must be identified before regard is had to surrounding circumstances – not satisfied that there is any ambiguity in the Agreement – not satisfied that the Agreement imposes a restriction on taking or accruing leave whilst in receipt of workers compensation – s.130 of the FW Act imposes a restriction on taking or accruing leave whilst receiving workers’ compensation – Full Bench required to determine whether employees permitted to take or accrue personal leave or annual leave whilst in receipt of workers compensation under FW Act s.130 pursuant to AC Act (Vic) and WIRC Act (Vic) – applying decision in Anglican Care satisfied that an employee is permitted to take or accrue annual leave whilst in receipt of workers’ compensation – however not satisfied that an employee is permitted to accrue personal leave whilst in receipt of workers’ compensation – held ESTA required to accrue employees’ annual leave entitlements for the periods in which they were in receipt of workers’ compensation pursuant to FW Act s.130(2). United Firefighters Union of Australia v Emergency Services Telecommunications Authority t/a ESTA
September 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – interpretation of Enterprise Agreement clause that ensured Agreement operation is compliant with relevant Federal and State codes of practice and guidelines for the building and construction industry – applicant sought determination that Agreement be implemented in manner complied with Federal Government Code for the Tendering and Performance of Building Work 2016 (the 2016 Code) – applicant is ‘code covered entity’ under 2016 code – significant proportion of applicant’s work is federally funded – may be excluded from eligibility to be awarded contracts on Federally funded building work if not compliant with 2016 Code – respondent objected on jurisdictional basis – Commission held there is jurisdiction to deal with dispute – applicant sought determinations requiring Agreement to be interpreted consistently with 2016 Code – Commission has power of private arbitration under Agreement – respondent submitted relief sought prohibited under Act – Commission construed Agreement on ordinary meaning of relevant words [Berri] – Commission found to extent Agreement can be read in way consistent and code compliant then should do so – number of provisions that are incapable of being construed as code compliant – considering ordinary meaning and relevant words clauses cannot be implemented in manner proposed by applicant as would be contrary to ordinary meaning – Commission unable to compel compliance with agreements – recommended CFMEU advise members to take steps to give effect to commitment they made to ensure Agreements are compliant with 2016 Code. Laing O’Rourke Australia Construction P/L t/a Laing O’Rourke v Construction, Forestry, Mining and Energy Union
September 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.385, 387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a Section Leader in respondent’s distribution centre – had worked for respondent for about 14 years – incident occurred at distribution centre on 17 March 2017 involving a forklift – applicant suspended from duties on 22 March 2017 – summarily dismissed on 5 April for serious misconduct involving his participation in a serious breach of safety incident and his responses to the employer’s investigation into that incident – applicant submitted incident did not justify summary dismissal – Commission considered s.387 of the Act – determined nature and severity of the misconduct did not provide a valid reason for summary dismissal – summary dismissal invoked where respondent was aware that applicant had performed work without restriction following the particular misconduct event – in these circumstances, respondent deprived of capacity to dismiss without notice – valid reason for dismissal with notice would have existed – inconsistent treatment of individuals who participated in and observed incident and absence of any consideration of penalty other than dismissal also relevant – held summary dismissal was unreasonable and unjust – applicant unfairly dismissed – applicant sought reinstatement – reinstatement not appropriate – limited compensation appropriate remedy – compensation of $6898 – order to be issued. Marangon v Queensland Property Investments P/L
September 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under the dispute resolution procedure set out in enterprise agreement – dispute related to hours of work and rosters during defined harvest season – Commission applied approach in Berri in construing the construction and meaning of terms in agreement – ordinary and natural meaning of provisions in agreement determined having regard to the context and purpose of the terms – found that roster arrangements and decision making process taken by respondent did not sit comfortably with the proper construction of terms of agreement – found that respondent should have selected other employees to be rostered on during a specific day in harvest season instead of applicant – parties encouraged to hold further discussions about the practical implementation of the decision prior to next harvest period. Shearing (The Maritime Union of Australia) v Viterra Operations P/L t/a Viterra
