TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by respondent as its Darwin Branch Supervisor – applicant claimed dismissal was unfair – respondent claimed the dismissal was for reason of genuine redundancy – parties agreed the applicant was covered by the Pest Control Industry Award 2010 – Commission considered reasoning of Federal Court in relation to ‘bona fide redundancy’ within the meaning of taxation legislation – confirmed requisite finding is available on the evidence – respondent no longer needed the Branch Supervisor position formerly held by applicant because of changes in operational requirements of its enterprise – respondent complied with consultation obligations under Award – applicant rejected possible alternative engagement possibilities – Commission satisfied applicant’s dismissal was for reason of genuine redundancy – applicant had not been unfairly dismissed within the meaning of s.385 of the Act – application must resultantly fail – merits of the unfair dismissal application unnecessary to consider – application dismissed. Law v Amalgamated Pest Control P/L t/a Amalgamated Pest Control
August 18, 2017
RIGHT OF ENTRY – dispute over right of entry – ss.484, 505 Fair Work Act 2009 – application to deal with a right of entry dispute – Construction, Forestry, Mining and Energy Union (CFMEU) requested to deal with a dispute with Laing O’Rourke Australia Construction (LORAC) by arbitration – LORAC is the occupier and controller of the premises on which a permit holder attempted to hold multiple discussions over several Right of Entry (ROE) dates with union member’s and potential union member’s mealtimes or other breaks while at the site – CFMEU submitted LORAC prevented permit holder from having discussions with employees on the site during their actual meal times – LORAC rejected the applicant’s assertion – submitted application should be dismissed – elected not to call any evidence – submitted CFMEU had not established ROE dates where discussions were hindered – Commission found permit holder to be a credible witness – Commission satisfied on the balance of probabilities permit holder sought to hold discussions with employees at the site during their actual meal times or other breaks and LORAC prevented the permit holder from doing so on some dates – LORAC contended Commission did not have jurisdiction to make order sought by the CFMEU as such an order would involve the exercise of judicial power – further directions to be issued – further decision about question of relief to be published in due course. Construction, Forestry, Mining and Energy Union v Laing O’Rourke Australia Construction P/L t/a Pacific Complete
August 18, 2017
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – s.739 Fair Work Act 2009 – applicant applied to Commission to deal with dispute under the Dematic P/L – Hume DC Enterprise Agreement 2015 (the Agreement) – employees affected by dispute were continuous shift workers engaged on a 12 hour ‘4 days on, 4 days off’ roster over a 8 week cycle – agreement provided a flat minimum hourly rate of pay for all rostered hours of work – three matters where in dispute – (1) whether the hourly rates under the Agreement apply to all hours worked by continuous shift workers on a ‘4 days on, 4 days off’ roster and compensate for ‘reasonable additional hours’; (2) the rate of pay for continuous night shift worked from 6:00pm Saturday to 6:00am Sunday; (3) whether employees were entitled to payment for public holidays on rostered days off before 1 August 2015 – AMWU v Berri applied with respect to interpretation of the Agreement – Commission found nothing ambiguous in any of the relevant Agreement terms – in matters (1) and (2) the Commission found that clause 11.5(b) makes clear that the minimum hourly rates under Schedule 2 apply to all hours worked in accordance with the ‘4 days on, 4 days off’ roster, including reasonable additional hours and shift loadings – exception is where the Saturday night shift is worked as overtime, in which case, hours worked in excess or outside set roster are paid double time in accordance with Clause 15.3 – in matter (3) Commission found Clause 16.1 provided that entitlement to payment for public holidays on rostered days off under the Agreement only applies from 1 August 2015 – employees who may have been entitled to public holiday on rostered days off prior to 1 August 2015 under the Award or previous agreement may seek remedy through the courts. Grech v Dematic P/L
August 18, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – appeal by BlueScope Steel Limited (BlueScope) against decision of Commission – originating dispute concerned BlueScope’s proposal to use employees of external labour hire contractor to meet short-term spike in orders – in first instance Commission decided it cannot be satisfied that use of contractors was in accordance with cl.13 of BlueScope Steel Western Port Enterprise Agreement 2014-2017 (Agreement) – BlueScope submitted three grounds for appeal – first, no restriction in cl.13 of Agreement on capacity to use contractors – second, if cl.13 interprets a restriction, it is invalid and of no use – ss.172(1), 253(1)(a) of FW Act – third, Commission erred in construction of cl.13.1.1 in two respects – permission to appeal sought – original decision wrong and caused substantial injustice – AWU submitted conclusion in paragraph [18] of original decision correct – submitted original decision was not attended by enough doubt to warrant grant of appeal – submitted appeal should be dismissed as no appealable error demonstrated – Full Bench considered cl. 13 of Agreement – NTEU v La Trobe University and Reeves v MaxiTRANS cited – Full Bench accepted that cl.13 of the Agreement did not contain restriction on use of contractors – agreed that Commission erred in the two respects identified – permission to appeal granted – appeal upheld – originating decision quashed – dispute referred back to Commissioner for resolution in accordance with appeal decision. Appeal by BlueScope Steel Limited t/a BlueScope against decision of Ryan C of 5 May 2017 [[2017] FWC 2260] Re: The Australian Workers’ Union
August 18, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 186, 604 Fair Work Act 2009 – permission to appeal – Full Bench – decision at first instance approved the Concrete Constructions Enterprise Agreement 2017 (Agreement) – appellant standing challenged by employer – appellant not a party to Agreement – appellant’s rules permitted it to enrol employees covered by the Agreement – sufficient to confer standing on appellant – appellant’s grounds – Commission could not have been properly satisfied Agreement genuinely agreed to – Agreement not genuinely agreed to because employer had not taken all reasonable steps to explain the Agreement terms and their effect to relevant employees and Commission erred in finding Agreement passed the BOOT – appellant identified three shortcomings in the BOOT – Full Bench found revised form F17 supported conclusion Agreement genuinely agreed to, including explaining terms to relevant employees – employer proposed new undertakings addressing BOOT shortcomings after Agreement approved in response to appellant claims – appeal cannot be deflected by the offer of further undertakings – s.191 of FW Act provides an undertaking is a term of agreement if Commission approves agreement after accepting undertaking – undertaking accepted after agreement approved has no legal effect – appellant identified three shortfalls under the Agreement compared to the Award, even taking into account higher base rates of pay – Full Bench accepted the appellant’s submission the Agreement did not pass the BOOT – permission to appeal granted with respect only to appellant’s third appeal ground – appeal upheld – decision in first instance quashed – application to approve Agreement referred to Commission for re-determination. Appeal by Construction, Forestry, Mining and Energy Union against decision of Gregory C of 24 April 2017 [[2017] FWC 2262] Re: Concrete Constructions (WA) P/L
August 18, 2017
ENTERPRISE AGREEMENTS – genuinely agree – ss.185, 188, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Deputy President dismissed the application for the approval of the JBU Enterprise Agreement 2016 – the Agreement had earlier been approved in a decision of the Commission issued on 18 November 2016 [[2016] FWCA 8209]; see also [[2016] FWC 7936] – that decision was the subject of an appeal by United Voice – in a decision issued on 14 February 2017, a Full Bench of the Commission quashed the decision to approve the Agreement, and referred the application to the Deputy President for redetermination [[2017] FWCFB 871] – grounds for appeal included the Deputy President erred by finding the work undertaken by employees who made the Proposed Agreement was not work the Proposed Agreement would, if approved, cover; and the finding regarding coverage did not support a finding that the Proposed Agreement was genuinely agreed to – the Deputy President proceeded on the basis that s.188 of the FW Act was premised on the proposition there had to be genuine agreement on the part of employees who were covered by the agreement at the time it was made – Full Bench did not consider the decision at first instance was attended by sufficient doubt such as to require the grant of permission to appeal in the public interest or to justify the grant of permission on a discretionary basis – permission to appeal refused. Appeal by Broadspectrum Limited t/a Broadspectrum against decision of Kovacic DP of 31 March 2017 [[2017] FWC 1818] Re: United Voice
August 18, 2017
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application for unfair dismissal remedy – costs application – in a decision issued on 22 May 2017 the Commission found the dismissal of the applicant to have been unfair [[2017] FWC 2022] – in a further decision and order issued on 16 June 2017 the respondent was ordered to pay compensation [[2017] FWC 2980] – the applicant, through his solicitors, has now made an application for the respondent to pay his legal costs and disbursements in the amount of $4,738.37 as well as personal costs accrued in pursuing his application in the amount of $447.18 – s.611(1) of the FW Act establishes a general rule that parties in proceedings before the Commission must bear their own costs – s.400A provides an additional power to award costs in respect of unfair dismissal remedy applications if ‘the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter’ – the applicant submitted four grounds that the respondent caused the costs claimed to be incurred, being that: it acted unreasonably in dismissing the applicant unfairly; it pursued the applicant postdismissal by threatening him with various legal actions in retaliation of his claim; it deferred and delayed proceedings without providing substantiation of commitments; and it failed to attempt to resolve or settle the matter in a bona fide manner – Commission found the first three grounds for the award of costs advanced did not satisfy the jurisdictional prerequisites for the award of costs under either s.400A(1) or s.611(2) – found the fourth ground had greater merit – after the conciliation there was an agreement in principle for the matter to settle – during the three day cooling off period the respondent sent an email to the conciliator stating it would not agree with the agreement and that it had a matter before the Magistrates Court against the applicant for alleged fraud and costs – as a consequence of this email the settlement reached at the conciliation did not proceed – Commission found the reference in the email to legal proceedings for fraud was an ‘outright falsehood’ – Commission considered the email constituted an unreasonable act on the part of the respondent in connection with the conduct and continuation of the applicant’s unfair dismissal application – the email caused the matter not to settle and the applicant had to continue to prosecute his claim – this caused him to incur costs, including legal costs and personal expenses associated with bringing the claim and attending at court – Commission satisfied that the jurisdictional prerequisite for the order of costs in s.400A(1) met – satisfied Commission should exercise discretion in favour of the grant of an award for costs – total amount of costs which will be awarded in applicant’s favour were $2683.08. Garang v Byron Bay Superfoods P/L
August 18, 2017
ENTERPRISE AGREEMENTS – better off overall test – ss.185, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal by the CFMEU against a decision to approve the Levent Painting Enterprise Agreement 2017 – CFMEU contend agreement approved in error – does not pass BOOT – Levent consented to orders being made to grant permission to appeal, uphold appeal and quash decision – Full Bench not satisfied that an appeal can be upheld by consent without demonstration of error – Full Bench accept the agreement does not pass the BOOT – permission to appeal granted – appeal upheld – decision quashed – Levent to discontinue application within 14 days. Appeal by the Construction, Forestry, Mining and Energy Union against decision of Wilson C of 26 April 2017 [[2017] FWCA 2234] Re: Levent Painting P/L t/a Levent Altintas
