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 – determined at first instance that agreement does not require payment of shift loading in addition to public holiday penalties to employees working on a public holiday – Full Bench satisfied appeal raises important issues of general application – attracts public interest – permission to appeal granted – whether at principles relevant to construction of enterprise agreements correctly applied at first instance – whether construction of agreement correct – well established principles distilled and summarised in Golden Cockerel and reformulated in Berri – decision in Berri released after first instance decision in present matter – reformulation of principles in Berri does not change approach to task of construing agreement – apparent Deputy President did not have regard to purpose of relevant provisions in agreement in construing wording as clear and unambiguous – did not have regard for text of agreement viewed as a whole – conclusion reached by Deputy President not correct – meaning clear when disputed provisions are read in context of agreement as a whole and having regard to purpose of provisions – decision at first instance quashed – appeal upheld – Full Bench found employees entitled to afternoon or night shift allowances for ordinary hours worked on public holidays – obligation to pay shift loading in addition to public holiday penalties arises. Appeal by Construction, Forestry, Mining and Energy Union against decision of Dean DP of 24 May 2017 [[2017] FWC 1763] Re: Endeavour Coal P/L t/a Appin Mine
September 14, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – decision at first instance found appellant had not been dismissed within meaning of s.386(1) of FW Act – appellant lodged appeal application 2 minutes out of time – Full Bench found minimal length of delay and lack of prejudice to respondent outweighed the lack of an explanation for delay – extension of time granted – appellant raised 15 grounds of appeal emphasising that he had been bullied at work over a long period and that he had suffered from mental illness at time he resigned – appellant submitted he had not been given a proper opportunity to present evidence relating to his mental illness – Full Bench found no evidence that Commission at first instance did not have regard to all the material filed and afford it the appropriate weight – found no evidence that respondent was aware of appellant’s mental health issues – found appellant made a conscious decision to resign – not satisfied that grounds of appeal raised an arguable case of error – no case made out that Commission’s conclusion in first instance was unreasonable, manifested by any injustice or counter-intuitive – permission to appeal refused. Appeal by Moore against decision of Platt C of 22 June 2017 [[2017] FWC 3380] Re: Newspot Holdings P/L t/a Newspot Motors
September 14, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision declining to extend time to appellant to file general protections dismissal application – application lodged beyond 21 day time limit – Commissioner at first instance held no exceptional circumstances warranting grant of extension of time – Full Bench held Commissioner directly addressed question of whether appellant had a reasonable opportunity to become aware of dismissal – permission to appeal refused – Full Bench held appeal does not raise issue of legal principle – decision not attended by sufficient doubt to warrant reconsideration – not in the public interest to grant permission to appeal. Appeal by Foyster against the decision of Ryan C of 23 June 2017 [[2017] FWC 1905] Re: Bunnings Group P/L
September 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – in July 2016 it was proposed that National Training Wage Schedule (NTW Schedule) be standardised and removed from all awards except Miscellaneous Award 2010 (Miscellaneous Award) and that NTW Schedule be incorporated into other awards by reference to Miscellaneous Award – in February 2017 Full Bench expressed provisional view that where parties requested that NTW Schedule be tailored to particular modern award, this would occur – in June 2017 Full Bench outlined that terms of award-specific NTW Schedules be inserted into modern awards where applications have been made to maintain award-specific schedules – further noted that where schedules were tailored to each award, schedules would be consistent with final plain language NTW Schedule – in August 2017 Full Bench finalised NTW Schedule to be inserted into Miscellaneous Award – parties invited to comment on proposed NTW Schedule – no comments received – award-specific schedules prepared based on finalised NTW Schedule and parties’ draft schedules – Ai Group noted potentially relevant qualifications included in standard NTW Schedule that have been excluded in AMWU draft schedule – AMWU invited to file submissions in response to Ai Group – AMWU’s submissions in reply of 7 April 2017 proposed inclusion of Civil Construction and Metal and Engineering Technical Traineeships AQF III in Building and Construction General On-site Award 2010 – CFMEU invited to file submissions on matters raised by AMWU – interested parties invited to file submissions on award-specific schedules – replies to follow. 4 yearly review of modern awards – National Training Wage
September 14, 2017
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
