ENTERPRISE AGREEMENTS – approval – ss.180, 186, 188, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission approved the Lendlease Engineering P/L New South Wales Enterprise Agreement 2016 (Agreement) – permission granted for parties to be represented – appellant grounds of appeal were the Agreement contained a false and misleading representation; the Commission erred in finding Agreement complied with s.186(2)(a) and 188(c) of the Act and the respondent failed to take all reasonable steps to ensure relevant employees employed at the time covered by the proposed agreement were given copies of other material incorporated by reference in the proposed agreement during access period – Respondent submitted permission to appeal should be refused and appeal be dismissed – Full Bench did not agree with submissions provided by appellant [KCL Industries, Sparta mining, NTEU] – not satisfied permission to grant appeal was in the public interest [GlaxoSmithKline] – not satisfied there is an arguable case of error [House v The King] – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Roe C of 6 June 2017 [[2017] FWC 3080] Re: Lendlease Engineering P/L
August 31, 2017
CASE PROCEDURES – evidence – s.590 Fair Work Act 2009 – Full Bench – application for termination of agreement after its nominal expiry – previous order issued 9 June 2017 – on 15 July 2017 Ms Vickers sent a number of documents including an amended application for an order for the production of documents (15 July application) against Wesfarmers and its controlled entities including Coles – Coles characterised 15 July application as lacking a legitimate forensic purpose and Ms Vickers had no basis to advance the serious allegations that she had made against Coles – Full Bench inferred Ms Vickers intended to test adequacy of Coles response to previous order – application made too late for Commission’s consideration before 17 July hearing – Coles and Wesfarmers submitted application made too late – Ms Vickers further submitted Coles produced few relevant documents; the evidence demonstrated Coles not made reasonable effort to comply with order; no basis for any order for production upon Wesfarmers to be restricted as there may have been relevant documents held by Wesfarmers that did not reach the board level; Cole’s decision to limit scope of undertakings relating to the 2014 Agreement established Coles culpability; representatives of Coles could give ‘direct evidence’ about documents held by Coles and Wesfarmers – Coles submitted Ms Vickers had provided no reason for proposed expansion; no utility to include authorisation of any person; extension unwarranted and oppressive and further broadening amounted to a requirement for general discovery – Full Bench found decision to enter into and apply for the approval of 2014 Agreement was made internally within Coles – no documents pertaining to the authorisation or sanctioning of 2014 Agreement – declined to exercise discretion in favour of making the orders sought by Ms Vickers in respect of Wesfarmers – also declined to make orders for production directed to controlled entities – order sought in 15 July application not issued instead issued order for production attached to Full Bench’s decision – authorised officer of Coles Supermarkets Australia P/L and Bi-Lo P/L directed to file and serve on Ms Vickers an affidavit verifying compliance with attached order for production and the order for production issued on 9 June 2017. Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011
August 31, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394, 604 Fair Work Act 2009 – permission to appeal – Full Bench – in decision at first instance the Commission felt bound by the decision in Lunn – concluded appellant’s employment was not terminated at the initiative of employer and anti-avoidance provision in s.386(3) of FW Act did not apply – application dismissed – decision appealed on the basis that Commission erred in relying on decision in Lunn and erred in finding that the antiavoidance provision was not engaged – appellant submitted that Lunn wrongly focuses upon whether employment contract was terminated on employer’s initiative, rather than employment relationship – submitted that application of Lunn to provisions of FW Act incompatible – submitted that Commission erroneously approached s.386(3) of FW Act on basis that there could only be one substantial purpose for an employer entering into outer limit contracts and conclusions regarding anti-avoidance provision was not supported by evidence – Full Bench found that in first instance, Commission did not error in finding that avoidance was not a substantial purpose of using outer limit contracts – found in the public interest that permission to appeal be granted in relation to first ground of appeal and not second – permission to appeal granted – directions to be issued for the hearing and determination of the appeal. Appeal by Khayam against decision of Hunt C of 22 May 2017 [[2017] FWC 1524] Re: Navitas English P/L t/a Navitas English
August 31, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – in a Statement issued on 6 July 2016 [[2017] FWCFB 4495] it was proposed that the National Training Wage Schedule (the NTW Schedule) be standardised and removed from all awards except the Miscellaneous Award 2010 (Miscellaneous Award) and be incorporated by reference to the Miscellaneous Award – in a Statement issued on 23 February 2017 [[2017] FWCFB 1095] the Full Bench announced that the NTW Schedule of the Miscellaneous Award would be re-drafted in plain language – Full Bench made provisional view that NTW Schedule would be tailored to a particular modern award on request – Australian Manufacturing Workers’ Union (AMWU) and Construction, Forestry, Mining and Energy Union – Construction and General Division (CFMEU) subsequently applied to maintain award-specific schedules in a number of awards – in a decision issued on 9 June 2017 [[2017] FWCFB 3176] a reference term to the Miscellaneous Award was inserted into 94 modern awards – Full Bench confirmed that award-specific schedules will be maintained in nine modern awards – terms of the award-specific NTW Schedules to be dealt with after finalisation of plain language NTW Schedule in the Miscellaneous Award – draft determinations incorporating the reference term published 13 June 2017 – final determinations were issued and came into operation on 1 July 2017 – submissions received from several parties in response to plain language drafting of NTW Schedule – conference held 21 July 2017 to discuss outstanding issues – decision concerns finalisation of terms of plain language NTW Schedule – an updated NTW Schedule is set out in Attachment A of decision – parties were required to provide any comments on the draft by 18 August 2017 – a determination varying the schedule in the Miscellaneous Award will then be issued – draft schedules of the nine awardspecific NTW Schedules will be published in week commencing 21 August 2017 – submissions are invited to comment on the draft schedules by 4pm Friday on 8 September 2017 – reply submissions are invited by no later than 4pm on Friday 22 September 2017 – Full Bench to determine content of the awardspecific NTW Schedules and whether they should be included in the nine modern awards on the papers – any requests for oral hearing to be made by 4pm on Tuesday 25 September 2017 – submissions to be sent to [email protected]. 4 yearly review of modern awards – National Training Wage
August 30, 2017
Thirty-one unfair dismissal and labour dispute applications are scheduled for hearing by the Fair Work Commission today. The full list is: Geelong Window Solutions (Balcam), Australia JW Trading Pty Ltd & H & Y Investment & Development Pty Ltd (Guan), Buehler Aged Care Pty Ltd (Mercer), Churchill Management Pty Ltd (Athanates), Amtek Corporation Pty Ltd (Young), Holcim (Australia) Pty Ltd (Harland), Retirees WA (inc.) (Pereira), Lockin Pty Ltd (Ware), Premier Motor Service Pty Ltd (Tischler), The GEO Group Australia Pty Ltd (Patel, Reihana, Reilly), Spectrum Community Focus Limited (Valenzuela), Premier Youthworks (Rosberg), Hopgoods Bus Service P/L (Morale), Nunga Mi:Minar Incorporated (Joy), BizFine Pty Ltd (Pugh), Rio Tinto Coal (NSW) Pty Ltd (Murray (nee McCauley)), Linfox Australia Pty Ltd (Grey), Valoriza Water Australia Pty Ltd (Cooper), Evertwin Pty Ltd (Buchanan), Portugal Madeira Sydney Social & Cultural Sports Club Ltd (Croad), Winder Controls Australia Pty Ltd (Ghate), Cerebos (Australia) Limited (Ratcliffe), St Marys Area Community Development Project. inc. (SMACD) (Lees, Moore), Custom Bus (Sarmento), TB Hotels Pty Ltd (Hogan), Pathways Australia Pty Ltd (Hill), Knoxfield Medical Centre Pty Ltd (Logan), Diamond Logistics Pty Ltd (Luapo).
August 24, 2017
Another lightweight case load day for the Fair Work Commission. The eleven cases are: Dyno Nobel Asia Pacific Proprietary Limited (Weber), Department of Social Services (Larzabal), Australian Federal Police (O’Neill), VITS (Gorencic), Serco Australia Pty Ltd (Ramos), Geelong Window Solutions (Balcam), Clarke Kann Lawyers (Layton), Freshco Foods (Patel), Serco Australia Pty Ltd (Ramos), Anglican Community Services (Asher), Bidgerdii Community Health Service (VanDenBrink).
August 23, 2017
A union will be looking into safety records at a milk factory after a health and safety adviser claimed she was unfairly blamed for the company’s “poor” track record. The employee unsuccessfully brought personal grievance and constructive dismissal claims against South Canterbury-based Oceania Dairy Ltd, at a hearing in Timaru. Oceania Dairy produces milk powder for export to China for infant formula. Its factory is at Glenavy. New Zealand Dairy Workers Union national secretary Chris Flatt said the union would be following up with Oceania about the company’s health and safety records, but declined to comment further on the case. Moira Briscoe was employed as a health and safety adviser in March 2014. She experienced a breakdown in her relationship with her employer two years later when a new head of human resources was appointed. Briscoe alleged she was bullied and treated with a lack of respect between February 2016, when the new manager was appointed, and her resignation in July 2016. She complained of being unnecessarily moved and micro-managed, and said her performance appraisal was unfairly moderated, and Oceania failed to provide her with adequate information of key performance indicators. During that time period she also claimed general manager Roger Usmar said he wanted to “get rid” of her during a senior management meeting, something Usmar denied. Usmar acknowledged addressing Oceania’s “poor” health and safety record at length at a staff meeting, but told the authority he was not trying “to apportion blame” to Briscoe. He attended a meeting with Briscoe and the human resources manager in May to try to address some of Briscoe’s concerns. Briscoe resigned on July 15, and alleged the company had failed to investigate her bullying claims. Authority member James Crichton said in his judgement, released on August 3, he was not convinced Briscoe was treated disrespectfully. Her treatment around performance appraisals was the same as the rest of the staff, and the performance indicators she complained about were never implemented. When it came to allegations of micro-managing, the new human resources manager simply seemed to have a different style to her predecessor, Crichton said. “[She] was seeking a more detailed and focused relationship in respect to health and safety, particularly in the context of Oceania’s concern about health and safety failings within the business.” Usmar did not respond to requests for comment on Tuesday about the company’s health and safety situation. Crichton said the relationship between Briscoe and her new manager lasted only a few weeks, making it difficult to say the conduct was “repeated” and workplace bullying. “None of that seems to me inappropriate from a management perspective and again I say that even if it could be alleged that Ms Briscoe had suffered a disadvantage because she was now being managed whereas previously she was given a relatively free hand.” Briscoe said the company failed to look into her bullying allegations after she sent an email to the human resources manager outlining her concerns. However Crichton noted Briscoe never raised the matter again, and appeared to have had a “productive discussion” with the manager after the email was sent. There was no evidence of hurt or distress other than Briscoe going on sick leave immediately before her resignation. “There is simply no evidence before the authority of [the health and safety manager] doing anything in her relationship with Ms Briscoe other than trying to get the best possible outcomes for the wider Oceania staff.”
August 23, 2017
A mere twelve applications alleging unfair dismissal are listed for hearing in the Fair Work Commission today. The full list is: Hopgoods Bus Service P/L (Morale), The Trustee for the Chunys Trust (Humphreys), Meeke Engineering (Zhang), StarTrack Express Pty Ltd (Benson), Winya Furniture Pty Ltd (Santos), Whitehaven Coal Mining Limited (Eather), Bidgerdii Community Health Service (VanDenBrink), Bynoe Community Advancement Cooperative Society LTD (Douglas), University of Tasmania (O’Dowd), Bank Australia Limited (Raven), Hibiscus Chinese Takeaway and Cafe Food (Chan), McColls Transport Pty Ltd (Robson).
