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
September 14, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent small business – submitted applicant was dismissed because he had committed fraud – applicant did not deny what he was accused of – He submitted this was not the reason he was terminated – Commission considered whether employer held belief at time of dismissal based on reasonable grounds – Commission found application dismissed on basis other then what was stated at the time of dismissal – not satisfied respondent demonstrated it complied with the Code – Byrne and Frew considered – Commission found dismissal was not unfair but unreasonable given the absence of natural justice – applicant did not seek reinstatement – Sprigg adopted to calculate compensation – Commission found remuneration loss was no more than two weeks from the date applicant was dismissed – Commission held compensation not appropriate given circumstances. Humphreys v The Trustee for the Chunys Trust t/a Home Giraffe
September 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment with respondent on 24 May 2001 and at the time of termination was working as Process Specialist – respondent conducts underground mine – an explosion occurred at the smelting facility at the site – alleged misconduct in failing to evacuate and conducting inspection of furnace following a serious incident in smelter building – direction from supervisor given not to evacuate – not unreasonable to stay and conduct inspection of explosion, but the manner in which inspection was conducted was unsafe and beyond the instruction given – employment terminated on 31 March 2017 – Commission found there was a valid reason for dismissal by failing to adhere to policies and procedures, however, on balance, the dismissal was harsh in circumstances – Commission found reinstatement was not appropriate due to loss of trust and confidence – Commission considered projected remuneration applicant would have received based on anticipated period of employment to be $99,406 – 30% deduction for contingences – 30% deduction for misconduct – deduction of notice payment – applicant awarded $47,676 in compensation. Johnson v BHP Billiton Olympic Dam Corporation P/L
September 14, 2017
TERMINATION OF EMPLOYMENT – valid reason – misconduct – remedy – ss.387, 392, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by respondent since November 2011 as Warehouse Supervisor – applicant also operated trucking business which respondent utilised on regular basis until recently – applicant sustained back/hip injury in July 2016 and was absent from work until 25 August 2016 – returned to work with limited hours and restricted duties – resumed fulltime hours in December 2016 remaining on restricted duties – on 27 April 2017 applicant called into meeting and asked whether he had played golf on annual leave on 27 September 2016 – applicant confirmed he did – at meeting following morning applicant given show cause letter stating concerns applicant’s golf playing put himself at risk of aggravating his existing injury and affected his return to work plan – applicant responded on 3 May 2017 declining playing modified golf impacted on physical recovery – employment terminated on 4 May 2017 by email on grounds of serious misconduct on basis he deliberately and wilfully breached his return to work obligations by playing golf – whether valid reason for dismissal – Commission not satisfied valid reason as indication any medical advice or opinion sought about whether playing golf as applicant described would conflict with physical limitations and return to work plan – Commission not satisfied evidence supports respondent’s contentions applicant deliberately concealed fact he played golf and acted dishonestly – Commission held applicant unfairly dismissed and dismissal was harsh and unreasonable – applicant not seeking reinstatement – Commission of the view reinstatement not appropriate remedy in all the circumstances – applicant unable to obtain other employment – paid five weeks’ notice – Sprigg considered – Commission not satisfied that misconduct warranted reduction in amount of compensation ordered – considered applicant’s receipt of additional workers’ compensation payments – applicant to provide Commission further information in relation to workers’ compensation payments since dismissal – quantum to be decided at later date. Moody v C.T. Freight P/L
September 14, 2017
RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – primary decision published 8 August 2017 and parties given opportunity to file submissions – applicant sought two orders – order requiring respondent to allow permit holders of the applicant to hold discussions with members and potential members under s.484 of the FW Act while they are on an actual break – order requiring respondent to provide a notice outlining respondent’s obligations – whether Commission would be exercising judicial power or arbitral power – whether an application invites use of judicial power depends on circumstances [Re Geelong Grammar School] – Commission must not confer rights on a permit holder that are additional to or are inconsistent with rights afforded under the FW Act [Police and Nurses Credit Society] – ascertainment of legal rights and obligations is classically a judicial function [CFMEU v BHPB] – in primary decision, Commission found permit holder of applicant was seeking to hold discussions with employees on four occasions and respondent prevented him from doing so – Commission noted first order did not seek to create any new rights or obligations – found first order essentially a restatement of provisions of FW Act which did not establish exercise of judicial power was being sought – found second order would assist to reduce right of entry disputes – satisfied making of orders would involve exercise of arbitral power, not judicial power – draft orders, effective for 12 months, given to parties – parties directed to file submissions by 1 September 2017. Construction, Forestry, Mining and Energy Union v Laing O’Rourke Australia Construction P/L t/a Pacific Complete
