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
September 14, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant covered by the Hyne Timber Tumbarumba Enterprise Agreement 2015 (Agreement) – jurisdictional objection raised on basis of genuine redundancy – Commission considered meaning of genuine redundancy – whether respondent complied with consultation obligations under the Agreement – meaning of major change – Commission satisfied respondent had obligation to consult under Agreement – held respondent did not comply with its consultation obligations – Commission satisfied redeployment would have been reasonable – dismissal not a case of genuine redundancy – Commission satisfied dismissal was harsh, unjust and unreasonable – held dismissal was unfair – remedy – reinstatement to applicant’s prior role inappropriate – parties directed to file additional material in relation to reappointment and compensation – order and directions issued. Cepile v Hyne Timber P/L
September 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – Application for unfair dismissal remedy – jurisdictional objection – whether applicant voluntarily resigned or dismissal at the initiative of the respondent – meaning of dismissed per s.386 FW Act – applicant claimed he had been dismissed by a text message which constituted a repudiation of his contract of employment – respondent claimed applicant had been given warnings about absenteeism and failure to notify of his absence – on balance of probabilities, Commission found applicant did not expressly resign from employment – respondent’s text message found not to constitute dismissal at its initiative – found applicant’s employment ended following his failure to attend for work beyond 16 January 2017 and failure to communicate concerns he had following receipt of text message – applicant unreasonably concluded he had been dismissed – no dismissal – jurisdictional objection upheld – application dismissed. Engelbrecht v BMI Group P/L t/a BCC Crushing
September 14, 2017
The Fair Work Commission unfair dismissal/labour dispute application list today includes: Wulguru Meat Market Pty Ltd (Tepania), Potinak P/L ATF Rainbow Motor Inn Unit (Deeb), Wilmar Sugar pty Ltd (Gallbraith), Coastal Broadcasters Pty Ltd (Wallace), Australia National Institute of Business (Jha), Community Based Support Inc (Bentley), MMG Australia Ltd (Harding), OzStaff Holdings Pty Ltd (Greer), Health Services Union-Victoria No.1 Branch (Sanli), Needlework Tours Pty Ltd (Olesen), Vitasoy Australia Products Pty Ltd (Barter), Starfix Pty Ltd ATFT OneAgency South Unit Trust (Dariol), Mt Arthur Coal Pty Limited (Folpp), The Reserve Bank of Australia (Steko), Australian Turf Club Ltd (Steele), Citizen Advocacy Western Sydney Inc (Fraser), South Sydney Junior Rugby League Club Ltd (He), Sydney Trains (Malik), Plaza Premium Lounge Australia Pty Ltd (Poh), Uniting (Fox), Robotic Automation Pty Ltd (Davis), Alsco Pty Ltd (Pawsey), LVMH Perfume and Cosmetics (Taylor), Silver Chain Group Limited (Michnik), TransGrid (Ali), MMG Australia Ltd (Harding), Securecorp Pty Ltd (Boyd, Brambilla, De-Ruiter), The Islamic Society of Victoria Inc (Abou-Eid), Oolong Aboriginal Corporation (Longbottom), Nestle Australia Limited (Booker), Australian Leisure and Hospitality Group Pty Ltd (Hadjifotis), Starfix Pty Ltd ATFT OneAgency South Unit Trust (Dariol), Chelsea Flooring Pty Ltd (McDonald), Navitas English Pty Ltd (Khayam), BHP Coal Pty Ltd (Hayes), Wilmar Sugar Pty LTd (Galbraith), Coal Services Pty Limited (Land), A and A Excavations (Cooper), Prosegur Australia Pty Limited (Kulas), The Arlberg Hotel (Innes), Architectural Project Specialist (Nicolaou), Bupa HI Pty Ltd (Williams), Scope (Vic) Ltd (Sekirski), State of Victoria (Department of Education & Training) (Freeman), Spotless Facility Services Pty Ltd (Issa), Northwest Supermarkets Pty Ltd (Johnson), Needlework Tours Pty Ltd (Olesen), The Local Shack Pty Ltd (Wright), Amber Aviation Academy Pty Ltd (Agarev), Barada Barna Aboriginal Corporation (Dargan, Roos), G8 Education Ltd (Buchanan), Nioa Nominees Pty Ltd (Primrose), TAB Staffing Pty Ltd (Smith), Coastal Broadcasters Pty Ltd (Wallace), One Key Resources Pty Ltd (Olive), ACT Government – Transport Canberra and City Services (Rodger), Nunga Mi: Minar Incorporated (Joy), Clare Castle Hotel (Will).
September 8, 2017
The Fair Work Commission will hear nineteen unfair dismissal/labour dispute applications today. The full list is: BlueScope Steel (AIS) Pty Ltd (Troiano), Illawarra Coal Holdings Pty Ltd (McLachlan), Walga Mining and Services Pty Ltd (Micheluzzi), JB Chung Enterprises Pty Ltd (Michailidis), Fawcett Plumbing Pty Ltd (Knight), Victory Church (Dailly), Superior Wood Pty Ltd (Lee), Brisbane Marine Pilots Pty Ltd (D’Alessandro), Giovenco Industries (Aust) Pty Ltd (Plummer), Pritchard-Gordon Racing Pty Ltd (Cunningham), Manningham City Council (Glenister), Visy Technology Systems Pty Ltd (Bender), Bluebird Horsham (Rowe), MVRC Junction Club (Ellikuttige), Jugiter Pty Ltd (Gavin), Causeway Holdings Pty Ltd (Wingate), Clarke Kann Lawyers (Layton), Westpac Banking Corporation (Mistry), Marisa Sinacori (Sinacori).
September 7, 2017
Twenty-three unfair dismissal/labour dispute applications are listed for hearing in the Fair Work Commission today. The full list is: Aboriginal Prisoners and Offenders Support Services (Buckskin), Cropping Solutions (Aust) Pty ltd (Roderick), Coles Supermarkets Australia Pty Ltd (Higgins), Anglo Coal (Moranbah North Management) Pty Ltd (Wilson), Skilltech Consulting Services Pty Ltd (Rulewski), Jones and Co Management Pty Ltd (McConnell-Imbriotis), City of Sydney RSL & Community Club Limited (Balgowan), Department of Health and Human Services (Morag), The Trustee for Chaukra Family Trust (Cirillo), Macedon Ranges Shire Council (Hawkey), USG Boral Building Products Pty Ltd (Palmer), Little Moreton Pty Ltd (Rayner), South Pacific Health Club Pty Ltd (Fordham), Grandbridge Limited (Wiburg), City of Darebin (Byrne), Roshana Pty Ltd ATF the C&J Trust & Burswood Care Pty Ltd ATF the Roshana Family Trust (Alahakoon), United Cinemas (Berginc), MMG Australia Ltd (Harding), Federation University Australia (Wong), Kaizen Hospitals (Malvern) Pty Ltd (Vyramuthu), Uniting (Fox), Illawarra Coal Holdings Pty Ltd (McLachlan).
September 1, 2017
The first day of spring brings 20 unfair dismissal/labour dispute applications before the Fair Work Commission. The full list is: PFD Food Services Pty Ltd (Buttar), Wyndham Central Secondary College (Bumpstead), Contact Accountants and Advisors Pty Ltd (De Alwis Seneviratne), Australia JW Trading Pty Ltd & H & Y Brother Investment & Development Pty Ltd (Guan), Macedon Ranges Shire Council (Hawkey), DP World Australia (Piggot), The Nuance Group (Australia) Pty Ltd (Wong), Amber Traffic Design Group Pty Ltd (Chadwick), My Pauls Beer and Wine (Bowen), Ausino West Pty Ltd ATF The Supercrane Unit Trust (Raschilla), Griffin Coal Mining Company Pty Ltd (King), Strata Plan 11104 (Kiely), Undamine Industries Unit Trust Pty Ltd (Trieve), Marisa Sinacori (Sinacori), Technosoft (Australia) Pty Ltd (Das), RR Lifestyle Support Limited (Gibson), Architectural Project Specialist (Nicolaou), Stegbar Pty Ltd (Staniland), Business Risks International Pty Limited (Baker), Ticar Boats Pty Ltd (Christensen).
September 1, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – remedy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant commenced working for respondent in February 2015 as filleter/general hand – promoted to Production Supervisor in September 2015 – employed under terms of Seafood Processing Award 2010 (the Award) – respondent raised objection to application on basis that applicant’s dismissal was genuine redundancy – claimed serious downturn in business so reducing operating costs was only option – respondent decided to reduce labour costs by making three non-production roles redundant – Commission satisfied that there were genuine business reasons associated with downturn in profitability and performance and that role of Production Supervisor no longer existed – held that redundancy not a sham – parties gave evidence about consultation – meeting commenced with parties speaking at cross-purposes – Commission satisfied that most of the meeting concerned missing stock and the restructure was a short conversation – Commission found decision to make applicant redundant was impulsive, insensitive, extreme and unwarranted – applicant heard nothing more about restructure until meeting on 2 June where he was handed a letter advising he was redundant, effective immediately – Commission held that respondent did not consult in any meaningful way and there was no consultation within meaning of clause 8 the Award – failed to meet statutory requirement of consultation and cannot be ‘genuine redundancy’ – Commission further held respondent did not take all reasonable steps to redeploy applicant – jurisdictional objection dismissed – whether dismissal harsh, unjust or unreasonable – Commission found there were genuine operational reasons for business restructure so there was valid reason for dismissal – held dismissal was harsh, unjust or unreasonable notwithstanding valid reason – nature of failure to consult and failure to give reasonable consideration to redeployment were sufficiently serious to deny applicant ‘fair go all round’ – application granted – Commission recommended Member Assisted Conciliation on question of remedy – if process not undertaken or not successful, Commission to make decision on remedy. Buttar v PFD Food Services P/L t/a PFD Food Services
