A lightweight day faces the Fair Work Commissioners allocated unfair dismissal and labour dispute applications. The full list includes: SSX Services Pty Ltd (Jewell), Hardman Real Estate Geelong Pty Ltd (Mason), Buehler Aged Care Pty Ltd (Mercer), The Trustee for South West Transit Group Unit Trust (Nieuwpoort), R.O.B Australia Pty Ltd (Chapman-Stone), Canterbury – Hurlstone Park RSL Club Ltd (Lee), Menzies International (Australia) Pty Ltd (Napier), PFD Food Services Pty Ltd (Buttar), Streamline Plumbing (Simounds), Personal Tutors Pty Ltd (Poyton), Regis Aged Care (Jones), Dynaton Sales & Hire Pty Ltd (O’Brien), Carlton and United Breweries Pty Ltd (Donovan), City of Sydney RSL & Community Club Limited (Balgowan).
August 21, 2017
The Fair Work Commission has thirty four unfair dismissal/labour dispute cases to hear today. The full list is: Australian Personnel Global Pty Ltd (Hussein, Mohammadi), Teys Australia (Rezaie), Hiddlestone Electrics Pty Ltd (Colreavy), Target Australia Pty Ltd (Drosd), Cobham Aviation Services Australia (Urquhart), City Of Kalgoorlie Boulder (Sivapalan), Hume Masterpanel Pty Ltd (Jefferd), Tasmanian Water and Sewerage Corporation Pty Ltd (Bodel), Relationship Australia Tasmania (Bromfield), Murray Street Early Learning Centre (Goonatilake), Roy Morgan Research Ltd (Ellis), Frankston City Council (Grinter), Bass Coast Health (Notley), Linehaul 21 Pty Ltd (Chester, Welsh), Aegis Care Group (Kassa), City of Canning (Birkbeck), Superior Wood Pty Ltd (Lee), Bazel Holdings Pty Limited (Wiseman), Star Track Express Pty Ltd (Benson), McGrath Sales Pty Limited (Leahy), GSP Print Pty Ltd (Thornberry), Visy (Smith), MA Administration Services (Vasquez-Schlitter), Rail Corporation NSW (Duraisamy), Craig Mansor (Whalan), Kimberly-Clark Australia Pty Ltd (Collins), Mills-Thoms Mechanical Repairs Pty Ltd (Williams), CB Debt Consultancy Pty Limited (Peace).
August 18, 2017
The Fair Work Commission is scheduled to hear 22 unfair dismissal/labour dispute applications today. The full list is: Bowens (Darmanin), La Sagra Pty Ltd (Fato), Blackwood Ridge Nursery (Graymore), Letcon Precast Systems Pty Ltd (Reddick), Voice Logic Pty Ltd (Reiri), Coles Supermarkets Australia Pty Ltd (Edwards), Knoxfield Medical Centre Pty Ltd (Logan), Linfox Armaguard Pty Ltd (Anderson), Lumlan and Associates Services (Levalds), Infosys Technologies Pty Limited (Sriram), Bake Life Pty Ltd (Wales), Tursa Employment and Training Limited (Rodgers), Mt Arthur Coal Pty Limited (Folpp), Brotherhood of St Laurence (Noisette), Clare Castle Hotel (Will), Bell & Brunt Jewellers (Egel), Streamline Plumbing (Simounds), The Dieri Aboriginal Corporation (Dodd), Churchill Management Pty Ltd (Athanates), Impression Solutions (Australia) Pty Ltd (Briffa), Queensland Symphony Orchestra Pty Ltd (Wenn), Norther Plant Hire (Vernon).
August 18, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant resigned from his employment with respondent on 2 December 2015 – on 2 November 2016 applicant made an application for unfair dismissal – respondent objected to application on the grounds that it was filed outside the statutory time limit – objection upheld and application was dismissed – applicant appealed – Commission considered if exceptional circumstances existed and reason for delay – application should have been made by 23 December 2015 for it to be within time – application not made for a further 11 months and 7 days – main reasons for delay relied upon by the applicant were the actions of his lawyers, psychological illness and matters associated with a workers’ compensation claim – Commission examined the advice of applicant’s lawyer – advice about potential general protections non-dismissal applications and potential unfair dismissal applications – found no basis to conclude lawyer deliberately withheld information from applicant about any application that could be made – Commission examined medical opinions provided about applicant – found nothing in the evidence of applicant’s treating doctors that suggests he was not capable of pursuing an application for unfair dismissal during the period of December 2015 to November 2016 – found the applicant’s workers’ compensation claim did not explain his failure to make an application for unfair dismissal – Commission did not accept that legal advice provided an acceptable reason for the delay – applicant did not instruct any lawyer to make an application – no error made by any lawyer – not satisfied that the applicant was misdirected by any lawyer – not satisfied that the applicant was not able to research, understand or complete an application before 2 November 2016 as a result of his medical condition – not satisfied that the time the applicant spent on preparing a workers’ compensation claim was a substantive reason for the delay in making unfair dismissal application – not satisfied the applicant’s personal matters including the birth of his first child and his mother’s deteriorating health explained the delay – found matters raised by applicant do not collectively explain the totality of the period of delay – not satisfied that exceptional circumstances existed – extension of time refused – application dismissed. Costelloe v Origin Energy Ltd t/a Origin Energy
August 18, 2017
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
