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).
August 14, 2017
CASE PROCEDURES – natural justice – procedural fairness – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – CFMEU appealed the decision approving the Pyramid Group Enterprise Agreement 2017 (Agreement) – after agreement was lodged the CFMEU contacted Commission expressing concerns over the agreement and sought access to the Form F16 and Form F17 and copy of notice of representational rights – the Agreement was approved without the CFMEU being heard – administrative error – the Full Bench in applying Ron Southon held that the public interest in the open administration of justice required that the CFMEU be given access to the forms – denial of procedural fairness – appeal upheld – respondent to discontinue agreement application. Appeal by Construction, Forestry, Mining and Energy Union against decision of Williams C of 28 March 2017 [[2017] FWCA 1734] Re: Pyramid Constructions (WA) P/L and Ors t/a Pyramid Group Australia
August 14, 2017
REGISTERED ORGANISATIONS – representation rights – State representation order – s.137F Fair Work (Registered Organisations) Act 2009 – Full Bench – joint application by Mount Isa Mines Limited, the Australian Workers’ Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for order reflecting State representation order in respect of employees of Mount Isa Mines Limited – order sought by applicants replicated effect of State representation order made by Queensland Industrial Relations Commission on 12 September 1995 – order to be known as the ‘Mount Isa Mines Lease Representation Order 2017′ – application made because from 1 January 2017, the Australian Workers’ Union of Employees, Queensland (AWUQ) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland (AMWUQ) were no longer transitionally recognised as registered organisations in the federal industrial relations system – applicants submitted granting application would maintain status quo in respect of delineation of coverage between the two applicant unions, being the federal counterparts of the AWUQ and AMWUQ – application was served on various union bodies – directions that details of any opposition to application should be set out in a position paper and filed – no position papers received – Full Bench considered legislative requirements to have been met – order issued in terms sought by applicants. Mount Isa Mines Limited and Ors
August 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – on 23 February 2017 the Penalty Rates Full Bench issued a decision dealing with the weekend and public holiday penalty rates, and some related matters, in a number of awards in the Hospitality and Retail sectors (the Penalty Rates decision) [[2017] FWCFB 1001] – on 5 June 2017 the Full Bench issued the Penalty Rates – Transitional Arrangements decision [[2017] FWCFB 3001] which dealt with the implementation of the Penalty Rates decision including the determination of various transitional arrangements – Chapter 8 of the Transitional Arrangements decision set out a list of award specific matters that remained outstanding – parties were directed to make submissions by Friday, 28 July 2017 – applications to vary were received from four organisations – Clubs Award – application by Clubs Australia to merge the Registered and Licensed Clubs Award 2010 and Hospitality Industry (General) Award 2010 has been allocated a new matter number (AM2017/39) and will be referred to the Full Bench constituted to deal with a claim by Clubs Australia in relation to public holidays – Hair and Beauty Award – application seeking to vary penalty rates in the Hair and Beauty Industry Award 2010 has been allocated a new matter number (AM2017/40) and will be referred to a Full Bench (Catanzariti VP, Asbury DP and Lee C) for hearing and determination – Pharmacy Award – in a submission filed on 1 August 2017 the Pharmacy Guild of Australia stated that it is not pressing any claim to vary these penalty rates – Restaurant Award – application to vary the Restaurant Industry Award 2010 seeking to vary Sunday penalty rates for all full-time and parttime employees and for Level 3 to 6 casual employees has been allocated a new matter number (AM2017/42) and will be referred to a Full Bench (Hatcher VP, Catanzariti VP and Lee C) – Retail Award – application by the Australian Retailers Association to vary clause 30.3(c) of the General Retail Industry Award 2010 in respect of the Sunday rate applicable to shiftworkers and claim by Shop, Distributive and Allied Employees Association in respect of Saturday and late night rates for casual employees have been allocated a new matter number (AM2017/43) and will be referred to a Full Bench in due course. 4 yearly review of modern awards – Penalty rates
August 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant was dismissed by respondent for serious misconduct in relation to falsified medical certificate in intent to claim sick leave – appellant acknowledged altering certificate but not for the purpose of claiming sick leave – that it was submitted in error – Commission at first instance rejected appellant’s argument and found dismissal was not harsh, unjust or unreasonable – appellant submitted various grounds of appeal relating to significant errors of fact and interpretation in decision – appellant contended Commission erred in finding she had provided an altered medical certificate for purpose of claiming sick leave and in finding there was a valid reason for dismissal – appellant claimed she amended certificate in 2015 to make it clear to the Bali surgery the amendment she required from them and to practise her PDF document editing skills – evidence contrasted with respondent’s technical evidence stating certificate in question was amended in 2016 – appellant then accepted she amended it in 2016 which she claimed was consistent with her evidence of using it for professional training development – claimed effect of medication and stress led her to submit amended certificate by accident – Full Bench noted decision in first instance found appellant did not submit certificate by mistake – found appellant changed her argument upon respondent’s evidence that certificate was last edited in 2016 – appeal process is for purpose of correcting error, not opportunity for unsuccessful parties to recast their case – found decision in first instance accepted respondent’s reasons for the dismissal as valid – among other grounds for appeal, appellant argued there was no basis for respondent to require appellant to submit medical certificate under enterprise agreement – Full Bench rejected argument and found respondent was not prevented from asking appellant to provide an improved certificate – appellant contended Commission erred in interpretation of evidence from several witness – Full Bench found no substance to claim – appellant contended Commission misrepresented her need to upgrade her PDF editing skills and respondent had ulterior motive in wanting to remove appellant – Full Bench found no error in Commission’s decision regarding such matters – appellant made complaints against her support person and that she was not effectively represented by her counsel in proceedings – Full Bench found no arguable case of error on part of the Commission in regard to these matters – Full Bench not satisfied appellant demonstrated arguable case to the required standard of proof – decision at first instance harmonious with previous decisions – appellant presented an argument which differed before the Commission in first instance works against public interest to re-enliven the case – permission to appeal refused. Appeal by Bluzer against decision of Cribb C of 19 May 2017 [[2017] FWC 2536] Re: Monash University
