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
August 18, 2017
RIGHT OF ENTRY – application for permit – ss.512, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision in relation to application for right of entry permit of union official – applied for right of entry permit under s.512 FW Act – application refused as Commission not satisfied official was ‘fit and proper person’ – ABCC granted leave to file submissions – CFMEU grounds of appeal included Commission acted on wrong principle, erred in findings of fact, took into account irrelevant or extraneous considerations, denied appellant procedural fairness, mistook findings and failed to take into account relevant considerations – Full Bench not satisfied that Commission considered irrelevant matters – Commission’s treatment of material before it was consistent with well-established principles it was required to and did apply – Full Bench not satisfied that Commission denied procedural fairness – not satisfied there was jurisdictional error – not satisfied Commission acted on a wrong principle, took into account irrelevant or extraneous considerations or came to any conclusion about the Federal Court proceedings currently underway – Full Bench satisfied Commission gave each matter proper, genuine and realistic consideration and appropriate weight – held that examination of appeal grounds of CFMEU failed to demonstrate error on part of Commission – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against decision of O’Callaghan SDP of 8 March 2017 [[2017] FWC 1227] Re: Fair Work Commission
August 18, 2017
ENTERPRISE AGREEMENTS – workplace determination – s.266 Fair Work Act 2009 – Full Bench – industrial action related workplace determination – whether aspects of the submissions and evidentiary material filed in this matter by the Commonwealth of Australia represented by the Department of Immigration and Border Protection (DIBP) and the Community and Public Sector Union (CPSU) are protected by Parliamentary privilege under the Parliamentary Privileges Act 1987 (Cth) (the PP Act) and whether the material can be received by the Commission – Full Bench considered all of the disputed material came within the definition of ‘proceedings in Parliament’ as set out in s.16(2) of the PP Act – Full Bench further considered the Budget documents which DIBP sought to tender were protected by privilege and therefore incapable of being received by the Commission – as to the other material which is disputed on the grounds of Parliamentary privilege, the Full Bench considered it would be caught by Parliamentary privilege should any party seek to rely on it in a way that entails the tender or receipt by the Commission or the questioning, making of submissions or comment on those documents for any of the purposes set out in 16(3) of the PP Act – given the potential implications of this decision for the material which the parties seek to rely on in the substantive matter, the Full Bench intend to list the matter for mention and directions/conference before Kovacic DP in the week commencing 21 August 2017 to discuss the parties’ views regarding the implications of the decision for their respective submissions and evidentiary material and the dates currently set down to hear the matter. Commonwealth of Australia represented by the Department of Immigration and Border Protection v CPSU, the Community and Public Sector Union
August 18, 2017
RIGHT OF ENTRY – application for permit – conditions – s.512 Fair Work Act 2009 – application by Victorian Branch of the AMWU for a right of entry permit for an official – official had been with AMWU since mid-1990s – official had been involved in two disputes that have led to penalties being imposed on him for breaches of industrial law in 2007-2008 – considered MUA decision of Full Court of Federal Court of Australia re ‘fit and proper person’ – also CEPU decision of Hatcher VP – in 2007 official contravened s.38 of the Building and Construction Industry Improvement Act 2005 (the BCII Act) by engaging in unlawful industrial action – ordered to pay a penalty of $1,500 – in 2008 official contravened s.44 of the BCII Act and was penalised $5000 – in 2014 official contravened ss.417(1), 421(1) and 346 – concerns about adequate first aid facilities and workers were directed to cease work as there was an immediate threat to their health and safety – work stoppages over the period 27-31 March 2014 – found directions to employees to cease work was not properly made under Occupational Health and Safety Act 2004, as no immediate threat to health and safety of any person – in relation to 2007-2008 incidents Commission satisfied official unlikely to behave in the same way again – in relation to 2014 dispute Commission satisfied official thought he was acting lawfully at the time – Commission concerned official does not understand interaction between industrial and occupational health and safety laws – inclined to find official a fit and proper person if Commission imposed condition on permit that official receive training of such interaction – Commission invited AMWU and ABCC to consider suitable condition to be imposed on permit. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) – Victorian Branch
August 18, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applicant lodged application for the Commission to deal with a dispute arising out of Ensign Australia P/L Onshore Drilling Employees Enterprise Agreement 2014 (the Agreement) over one year after his employment terminated – Ensign objected to application on grounds that applicant was no longer employed and no longer covered by the Agreement – dispute involved the applicant’s entitlement to Field Service Leave for the period he was engaged on modified duties – Commission in applying Goonyella found that it did not have the jurisdiction to deal with the matter as applicant no longer ‘an employee’ within the ordinary meaning of the word – application dismissed. Markham v Ensign Drilling Australia t/a Ensign Energy Services
