GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day late – applicant employed as Apprentice Plumber – claimed he was terminated for exercising a workplace right – claimed the delay in filing his application was due solely to an error by his legal representative – whether exceptional circumstances existed – Nulty considered – Perry and Robinson considered – Commission accepted applicant was blameless for delay in his application – satisfied applicant’s circumstances were exceptional – application for an extension of time was granted. Duffy v Glen McPherson Services P/L t/a Glen McPherson Services Plumbing
August 31, 2017
ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – applicant made three applications for protected action ballot orders in relation to certain employees of the respondent – application opposed on grounds relating to form and nature of questions – respondent submitted any resulting action to parts of the questions could not be industrial action as defined by FW Act – found that while some communications may be industrial action does not mean that all communications will fall within the definition [Laing] – found that parts of question that involved stoppage of work for a period of time within which certain things must be done may amount to industrial action [Nillimbik] – found that parts of the question that go to wearing of campaign clothing and/or badges or a refusal to wear certain clothing may constitute industrial action [Mornington] – satisfied that three distinct applications for protected industrial action were made – satisfied the applicant was genuinely trying to reach agreement – questions in protected action ballot orders to be amended in accordance with decision – protected action ballot orders will be made. Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire
August 31, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – reasons for determination issued 11 August 2017 – dispute in relation to one employee and agreement provision about supplementary labour – limited evidence before Commission – union’s case raised an issue about company’s approach to an employee not be considered by the company for redeployment when the project in which he was engaged completed – Commission did not accept employee given special treatment by union based on his position as union delegate – appeared to be some lack of appetite to meaningfully reconsider redeployment of particular employee – company failed to provide information to union by agreed date – timing and circumstances of company’s provision of certain information was not conducive to productive discussions concerning employee – Company contended situation in relation to employee was a genuine redundancy – company would be well-advised to consult clause 58 (consultation) of Agreement in future – Commission anticipated further proceedings (appeal, adverse action or unfair dismissal) – noted consideration might be given to discussion of a range of potential redeployment options on upcoming projects concerning this and other employees – proceedings concluded. CFMEU v Fulton Hogan Construction P/L
August 31, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – s.773 Fair Work Act 2009 – application to deal with unlawful termination dispute – lack of clarity about entity which relevantly employed applicant – ABN provided by applicant and respondent the same – respondent’s representative confirmed unit trust employed applicant – Commission’s internal research indicated discrepancies with matters concerning ABN numbers including location of respondent – Australian Business Register search for ABN provided entity as The Trustee for Allan Engineering Unit Trust with main business location in Victoria – website appearing to be associated with respondent’s enterprise lists different ABN – possible jurisdictional issues discussed with respondent, who sought legal advice and did not press objections to application – Commission lacked clarity but satisfied that in absence of anything from either party as to jurisdictional appropriateness, certificate could be issued – certificate issued. Williams v The Allan Engineering Unit Trust t/a Allan Engineering P/L
August 31, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – application lodged 22 days after dismissal took effect, that is, application was 1 day out of time – applicant submitted reason for delay was representative error – applicant engaged union official for advice and to lodge application on applicant’s behalf – union official miscalculated the number of days of when the dismissal took effect – letter of termination inferred dismissal took effect on 9 June when in fact dismissal took effect on 8 June – Union official relied on date in letter of termination – Commission considered whether exceptional circumstances existed to warrant an extension of time – found letter of termination inadvertently contributed to representative error – found applicant did not contribute to act or omission to the representative error – satisfied exceptional circumstances exist to warrant extension of time – application for extension of time granted – application will proceed to hearing on the merits unless resolved between the parties – order will be issued. Aunger v Vinpac International P/L
August 31, 2017
CASE PROCEDURES – representation – ss.394, 596 Fair Work Act 2009 – Application for unfair dismissal remedy – applicant and respondent sought permission to be represented by paid agents pursuant to s.596 of the FW Act – neither party objected to the other being represented – Commission not satisfied that the matter was unduly complex – not satisfied that parties would be unable to represent themselves effectively – Commission satisfied that unnecessary formality would be created by the granting of permission – Commission not satisfied that denying permission would lead to a situation of unfairness for either party – permission for representation denied. Guillemain v Woolworths Ltd t/a Melbourne Liquor Distribution Centre
August 31, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant summarily dismissed – respondent alleged applicant had made fraudulent workers’ compensation claim – Commission satisfied that respondent carried out thorough and considered process in dealing with the applicant – Commission also satisfied that the decision to terminate employment was ‘sound defensible and well founded’ – respondent had a valid reason for dismissal – no considerations in s.387 lead to the conclusion that the dismissal was unfair – application dismissed. Willmot v BlueScope Steel Limited
August 31, 2017
CASE PROCEDURES – stay order – ss.604, 606 Fair Work Act 2009 – appeal – appellant sought stay of decision in unfair dismissal matter which found respondent’s annual rate of earnings was less than high income threshold – Commission satisfied there is an arguable case with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal that the Commissioner did not have regard to all material facts – when assessing respondent’s earnings and considering car allowance, Commissioner failed to take into account payments appellant had made in relation to petrol and tolls – Commission satisfied the balance of convenience favoured granting stay – stay would place temporary pause on requirements for preparation of materials for determination of jurisdictional objections and merits of unfair dismissal application while appellant seeks permission to appeal and Commission deals firstly with that application and then the appeal proper, should permission be granted – Commission decision of 7 August 2017 and directions issued in relation to unfair dismissal matter on 10 August 2017 stayed. Appeal by Sam Technology Engineers P/L against decision of Ryan C of 7 August 2017 [[2017] FWC 3228] Re: Bernadou
