TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged 164 days late – application lodged 16 June 2017 – dismissal took effect 14 December 2016 – respondent objected to application – applicant had resigned – applicant made anti-bullying application to Commission in October 2016 – believed this application dealt with on going grievance with respondent – Commission considered if exceptional circumstances existed and reason for delay – found applicant’s mental illness, lack of knowledge about rights and misapprehension the anti-bullying application provided reason for delay – combination of factors reasonably seen as producing a situation out of the ordinary course, unusual, special or uncommon – Commission considered whether delay caused prejudice to respondent – respondent did not claim delay caused prejudice other than additional time and expense – found no evidence respondent would be unduly prejudiced – exceptional circumstances existed – extension of time granted – application returned to general unfair dismissal list for determination. Lin v Woolworths Limited
August 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with a dispute about payment of overtime for employees who do not get rostered days offs under MC Labour Services P/L (MC Labour) and the CFMEU (Victorian Construction and General Division) Labour Hire Industry Enterprise Agreement 2016-2018 (the Agreement) – MC Labour did not object to the application but said the applicant was not a bargaining representative for the Agreement, was not covered by the Agreement and no evidence the applicant had been appointed to represent employees under clause 10 of the Agreement – MC Labour claimed dispute resolution procedure at clause 10 of the Agreement not followed – applicant conceded it had not followed the procedure in a Mention on 1 August 2017 – parties agreed jurisdictional objection to be determined on the papers – AMWU v Berri P/L considered – Commission noted alleged dispute not submitted by employees or their representatives as mandated in Agreement and precondition for the dispute to be referred to the Disputes Panel and then to the Commission – Commission satisfied no present jurisdiction to deal with the alleged dispute – application dismissed. The Australian Workers’ Union v MC Labour Services P/L
August 14, 2017
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for orders that industrial action stop, not occur and not be organised – application directed at the respondent and applicant’s employees who were AMWU members, and who worked at Dandenong site – interim order made under s.420 of the FW Act on 26 July 2017 – applicant had not served employees – employees not covered by interim order – the respondent opposed the application but made no submissions – affected employees served with application, draft order and copy of interim order – Operations Manager gave evidence on behalf of the applicant – evidence not contested – AMWU delegate expressed concerns about new drug and alcohol policy – a number employees failed to work rostered overtime – Commission accepted evidence that 25 employees were absent without providing any reason or notice – found industrial action at the site – failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work – refusal to work overtime amounted to a ban, limitation or restriction on the performance of work by employees – industrial action was not authorised or agreed to by the applicant – not protected industrial action – found that industrial action was likely to continue – order that the industrial action stop, not occur and not be organised under s.418 of the FW Act. Visy Board P/L v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
August 14, 2017
CASE PROCEDURES – stay order – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – application for stay order in relation to an appeal against decision to allow an extension of time – in the time between the decision to extend and an appeal being lodged Commission issued directions for the determination of the unfair dismissal matter – ISS Facility Services sought a stay on proceedings relating to the determination of the application pending the determination of the appeal – Commission in applying Edghill v Kellow-Falkiner Motors assessed the preliminary merits of the appeal case – applied GlaxoSmithKline in respect of public interest test – Commission was not satisfied that an arguable case had been demonstrated – could not identify facts that raised issues of general application that could be said to attract the public interest – also considered the balance of convenience and was not satisfied in favour of granting a stay – stay application dismissed. Appeal by ISS Facility Services Australia Limited t/a ISS Facility Services against decision of Bissett C of 5 June 2017 [[2017] FWC 3045] Re: Baltas
August 14, 2017
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – s.217 Fair Work Act 2009 – application by the Construction, Forestry, Mining and Energy Union for variation of the CC Pty Ltd Enterprise Agreement 2012 with respect to the definition of redundancy in Agreement – 220 employees were made redundant due to Employer’s insolvency – definition of redundancy under Agreement excluded circumstances where employee’s employment is terminated because of insolvency or bankruptcy – definition of redundancy in Agreement not consistent with definition of redundancy in s.119(1) of FW Act or clause 14.2 of Black Coal Mining Industry Award 2010 (Award) – employees who were made redundant were not entitled to redundancy payments under the Agreement – Agreement also excludes the Award and operates in conjunction with National Employment Standards which resulted in entitlements of redundant employees where employer is made insolvent or bankrupt ambiguous or uncertain – Commission found that Agreement was ambiguous or uncertain – found that Agreement should be varied to include an identical definition of redundancy as found under the FW Act and Award – found variation appropriate to give effect to objectively ascertained mutual intention of the parties – Agreement varied with effect from 12 May 2017. CC Pty Ltd Enterprise Agreement 2012
August 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed 8 December 2016 following investigation into allegations of misconduct – misconduct referred to as ‘scavenging’ – applicant commenced employment with respondent as a weighbridge operator in November 2014 on a casual basis – on 14 November 2016 a machine operator reported a verbal altercation with the applicant – it was alleged in the operator’s compliant that the applicant had scavenged items stored onsite then removed them from site without authorisation – following the compliant respondent conducted an investigation into the allegations – on 23 November 2016 the applicant attended a meeting with representatives of the respondent – at conclusion of meeting applicant was suspended from duties on full pay to allow respondent complete an investigation – at further meeting on 29 November 2016 applicant was given show cause letter in relation to the allegations – on 8 December 2016 applicant was dismissed for misconduct with immediate effect – Commission found applicant had engaged in unauthorised removal of materials from the site, including electronic waste and scrap metal – applicant’s actions were unsafe and completely inappropriate – found respondent properly conducted the investigation and it was reasonable to discipline applicant for misconduct in breach of a lawful and reasonable policy – found applicant was not singled out or otherwise treated different for scavenging – Commission found applicant was notified of valid reason for dismissal before decision was made – satisfied applicant had a number of opportunities to respond to the allegations – applicant engaged in prohibited conduct which justified disciplinary action – found dismissal was not harsh, unjust or unreasonable – application dismissed. Adams v SUEZ Recycling & Recovery (No.1) P/L
August 14, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent argued dismissal was case of genuine redundancy – applicant held the position of ‘Relief Project Manager’ however had not been rostered to work since September 2016 – employed within one of the respondent’s ‘relief pools’, workgroups designed to backfill positions at various worksites during periods of employee absence – made redundant on 24 March 2017 as the result of a restructure that saw relief pools outsourced to an external labour hire company – Commission satisfied applicant’s job was no longer required to be performed by anyone – found no identified position within the respondent’s operation, or its associated entities’ enterprises where it would have been reasonable to redeploy applicant – satisfied the termination of the applicant’s employment was a case of genuine redundancy – however it would have been reasonable for the respondent to notify the applicant of the redundancy at an earlier date and commence exploring redeployment opportunities at that time – application dismissed. Hallam v Sodexo Remote Sites Australia P/L
August 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.54, 206, 739 Fair Work Act 2009 – dispute about proper application of clause concerning minimum hourly rates in B-d Farm Paris Creek P/L Employee Collective Workplace Agreement 2009 (Agreement) – clause stated minimum hourly rates specified would be adjusted by three per cent annually – whether under terms of Agreement the adjustment continued beyond nominal expiry date – Agreement expired three years ago – parties sought assistance of Commission under Agreement – doubt about capacity of Commission to make binding determination – parties requested Commission issue public assessment – applicant claimed annual adjustment only applied to nominal life of Agreement – claimed was inverse to object in s.171(a) for an enterprise agreement to continue to apply increases following nominal expiry where Act provides mechanism in s.206 to uphold safety net [Catalina Country Club] as ‘could confer an unreasonable windfall’ – respondent claimed three per cent annual adjustment should continue as long as Agreement remains in place – Commission considered Full Bench approach to construction of enterprise agreement [AMWU v Berri] – consideration involves ordinary and natural meaning of terms of clause read in context – no express or implied limit on application of clause – Agreement remains in operation under terms of s.54 of FW Act – all terms of Agreement remained enforceable and binding – Commission distinguished case from Catalina where wage adjustments were limited to nominal life – in Catalina issue about whether wage adjustments continued to apply was collateral to potential impact of agreement termination – Commission accepted bargaining for agreement generally involves wage outcomes for nominal life – each agreement must be considered on own terms to discern objective intention – given terms of agreement reasonable that full terms of agreement continue to apply until ceases to operate – wage adjustment not limited to nominal life – accepted s.206 applies and base rates in Agreement cannot be less than award – does not discern objective intention in Act or Agreement that s.206 means clause should not apply as agreed – clause continued to operate and apply – recommended applicant reconsider and calculate proper rates under Agreement – underpayment of entitlements should be rectified – parties commence to negotiate new agreement. B-d Farm Paris Creek P/L v Johnson
