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
August 18, 2017
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – applicant claimed he was dismissed from his employment with the respondent on 10 March 2017 – respondent identified the following jurisdictional objections: dismissal was a case of genuine redundancy, respondent is a small business and applicant earned more than the high income threshold – a hearing was conducted to determine the jurisdictional objection about high income threshold – considered the treatment of superannuation, the car allowance and other allowances – whilst the contract of employment provided that the salary of $125,000 was inclusive of superannuation this was not the case – Commission found that the $20,000 car allowance should be split into an amount of $8,000 for business use and an amount of $12,000 for personal use – the $12,000 became part of annual wages – Commission found that $780 for private telephone usage and $750 for private laptop usage formed part of total earnings – total earnings of applicant amounted to $138,500 – found amount to be below the high income threshold of $138,900 – application subject to further proceedings as directed by the Commission. Bernadou v Sam Technology Engineers P/L
August 17, 2017
Twenty-five unfair dismissal/labour contract disputes are listed for hearing today in the Fair Work Commission. The full list is: Pets Wonderland (Ford), Kronos Group Pty Ltd (Johnstone), Anthony Costello Automotive (Hunter), Springmount Services Pty Ltd (Amexcua Rangel), Alfies Towing (Collins), Prosegur Australia Pty Limited (Kelly), Boral Australia (Wallace), Superior Wood Pty Ltd (Lee), Undamine Industries Unit Trust Pty Ltd (Trieve), Reflex Fencing Pty Ltd (Pearce), La Sagra Pty Ltd (Fato), Centrecom (Gargano), Sam Technology Engineers Pty Ltd (Bernadou), Toll Transport Pty Ltd (Barton), Superpop Group Pty Ltd (Escobar), Macedon Ranges Shire Council (Hawkey), Rolin Design Pty Ltd (Duffy), University of Western Australia (Meath), Thompson Healthcare Pty Ltd (Adamopoulos), Fat Prophets Pty Ltd (Parkes), The High Gate Group (Heydon), Rentokill Initial Pty Ltd (Young), Pathways Australia Pty Ltd (Hill), Geelong Window Solutions (Balcam), Vinpac International Pty Ltd (Aunger).
August 16, 2017
76 unfair dismissal/labour dispute cases are listed for hearing. 34 emanate from a single employer. The full list is: Victory Church (Dailly), Groote Eylandt Mining Company Pty Ltd (Law), Ryco Hydraulics Pty Ltd (Featherstone), Bowens (Darmanin), Woolworths Limited (Lin), Murray Street Early Learning Centre (Goonatilake), LTT Victoria Group Pty Ltd (Tooze), RMIT University (Farrell), BHP Billiton Iron Ore Pty Ltd (Foster), Lynch Admin Services Pty Ltd (Maciel), Catholic Education office Bathurst (O’Keefe), Whitehaven Coal Mining Limited (Warren), Regis Aged Care Pty Ltd (Wang), Tweed River Agricultural Society Ltd (Stranger), The Allan Engineering Unit Trust (Williams), Valcore Fit-Outs Pty Ltd (Zaccaria), Aurrum Pty Ltd (Hoppenbrouwer), Hopgoods Bus Service P/L (Morale), Peregrine Corporation (Murray), PFD Food Services Pty Ltd (Buttar), Blue Care – Uniting Church (Dalton), Mardo Australia Pty Ltd Parent Company Kresta Holdings Limited (Durre, Lorde), ComLink Limited (Graham), Horan & Bird Energy Pty Ltd (Gaunt), Holcim (Australia) Pty Ltd (Harland), MEGT (Australia) Ltd (Hart), Australia Postal Corporation (Bird), Stanwell Corporation Limited (Clegg), Australian Electoral Commission (Inglis), Little Moreton Pty Ltd (Rayner), Swinburne University of Technology (Calleri), Linfox Australia Pty Ltd (Au, Avram, Bailey, Broughton, Buble, Bui, Camilleri, Chau, Cusato, D’Andrea, Dang, Dogu, Garcia, Haycock, Hitchcock, Humay, Huynh, Ilicic, King, Livori, Morrow, Murphy, Nguyen, Paull, Peterson, Pisano, Sefou, Sikaleski, Smith, Speed, Tam, Taylor, Tran, Whitney), Tronox Management Group Limited (Shivlani), Building & Industrial Cleaning Services Pty Limited (Intelisano), Domino’s Pizza Enterprises Ltd (Mannapati), Woolworths Limited (Choi), Kingmill Pty Ltd (Padayachy), Work n Holiday Pty Ltd (Pirie), South Oakleigh Club (Gillmore), Roy Morgan Research Ltd (Ellis).
August 15, 2017
A lightweight case load faces the Fair Work Commission today. The full list is: Potinak P/L ATF Rainbow Motor Inn Unit (Deeb), Serco Immigration Services (Collins), The Friendlies Discount Pharmacy (Weiland), ALDI Foods Pty Ltd (Joyner), Darling Downs and West Moreton Primary Health Network & Lacey (Mayne), CT Freight Pty Ltd (Moody), Parade Holdings (Malatesta), Portugal Madeira Sydney Social & Cultural Sports Club Ltd (Croad), Fat Prophets Pty Ltd (Parkes), TNT Australia Pty Ltd (Johnson), Charles Sturt University (Wedgwood), Regis Aged Care Pty Ltd (Wang), A&J Container Services (Smith), Run For It Pty Ltd (Constantinidis), Awabakal Local Aboriginal Land Council (Towers), PPK Mining Equipment Pty Ltd (Barnden), South West Freight Pty Ltd (Duncan), Caltex Jurien Bay (Cockburn), Prosegur Australia Pty Limited (Marie), Electrocity Pty Ltd (Lavender), Floorit Floating Floors Pty Ltd (Owen), Rail Commissioner (Williams).
