ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applicant made application for resolution of dispute under dispute resolution term within Victorian Catholic Education Multi Enterprise Agreement 2013 (the Agreement) – applicant is classified under the Agreement as Level ES 4 employee – applicant considered this to be one grade too low given his duties and demonstrated competencies and sought relief to be reclassified and paid the correct salary as per the Agreement Level ES5.1 – applicant submitted that changes to his role between 2010 and 2017 were significant and his role had grown beyond Level ES 4 – applicant further submitted that he was engaged in development and deployment of information technology strategy which was key feature of Level ES 5 – applicant also submitted that with reference to criterion within descriptors for Level ES 5 that role is featured with leadership and management of significant functional element of large school – respondent submitted that applicant was not undertaking the work of Level ES 5 and did not have management responsibility for its Information Communication and Technology (ICT) function – respondent further submitted that applicant managed day-to-day operational requirements of ICT function but did not have leadership and management responsibility – found work described by applicant was broadly consistent with competencies set out in General Work Description for Level ES 4 however those features of competency do not amount to level described within General Work Description for Level ES 5 – unable to make finding that applicant’s job was to ‘lead and manage a significant functional element’ – applicant did not demonstrate that work he was undertaking was aligned with judgement, independence and problem-solving descriptors of Level ES 5 – found circumstance of applicant’s supervision fits Level ES 5 descriptor but is probably circumstances arisen by default or lack of management rather than conscious decision making – found that applicant was not working at level expected of Supervision for Level ES 5 – nothing before Commission formally identifying respondent’s requirements in relation to qualifications and experience nor is there sufficient evidence that applicant is insufficiently qualified or experienced to be classified at Level ES 5 – no findings made in respect of this aspect of the descriptors therefore qualifications and experience are neutral consideration – found applicant is performing duties consistent with, and not significantly beyond, Level ES 4 defined ‘typical duties’ – unable to make finding that applicant is working at ES 5 level – application dismissed. Murphy v Mercy Education Limited t/a Sacred Heart College, Kyneton
August 14, 2017
ENTERPRISE AGREEMENTS – approval – ss.186, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission approved the SESLS Industrial P/L Employee Black Coal Mining Industry Enterprise Agreement 2017 – agreement provided for casual employment where there is no provision in award – three grounds of appeal: that the Commission erred in failing to afford the appellant procedural fairness; Commission erred in finding that the Agreement satisfied provisions in s.186 of the FW Act; Commission erred in being satisfied the Agreement met the Better Off Overall Test (BOOT) and therefore erred in approving the agreement – Full Bench found that no practical injustice arose and took into account that the appellant is a sophisticated organisation and therefore was not denied an opportunity to develop its argument of whether it should be heard – the appellant’s concern about the agreement was that it allowed for the employment of production and engineering employees on a casual basis, whereas the Black Coal Mining Industry Award 2010 does not – Full Bench found that the Commission did not err in its application of the BOOT or decision to approve the agreement – the agreement incorporates the award, and guarantees employees will receive 1% more remuneration they would receive under the award – although casual engagement of production and engineering employees is not permitted under the award, it is under the agreement and affords a 25% loading – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Lee C of 28 April 2017 [[2017] FWCA 2308] Re: SESLS Industrial P/L
August 11, 2017
The Fair Work Commission will hear 23 applicants covering unfair dismissal/employment disputes today. The full list is: QantasLink (Cook), Emirates Leisure Retail (Australia) Pty Ltd (Arulchelvam, Nguyen, Park), Command IT Pty Ltd (Briffa), Brisbane Container Terminals Pty Ltd (Carnegie), Real Pet Food Company (Kemp), Independence Australia (Legge), Epworth Foundation (Naicker), Victoria International Container Terminal Limited (Lunt, Niccoli), MECWA (Camilleri), Grandbridge Limited (Wiburd), Childcare Management Service Pty Ltd (Kaul), Peoplesmove Pty Ltd (Wright), Bluestone Mines Tasmania Joint Venture Pty Ltd (Goodsell), Broome Tourist Bureau (Linton), Iron Bay Pty Ltd (Seitz), Sydney Trains (Robinson), Amber Traffic Design Group Pty Ltd (Chadwick), Target Australia Pty Ltd (Drosd), Department of Human Services (O’Connell), National Australia Bank Pty Ltd (McAvaney).
August 10, 2017
An 18 application caseload won’t overtly trouble a crowded bench of Fair Work Commissioners today. The full list is: Australia Personnel Global Pty Ltd (Phuaprasert), Teys Australia Central Queensland Pty Ltd (Rodrigues), Churchill Management Pty Ltd (Athanates), QARC Pty Ltd (Tavita), Barcoo Retirement Village Incorporated (Hinds), SMW (Laidlaw), William Angliss Institute (Baker), Carter Holt Harvey Woodproducts Australia Pty Ltd (Akers), Pharmacy World Pty Ltd (Cook), Patrick Stevedores Holdings Pty Ltd (Martin), Zoological Parks and Gardens Board (Borg), New Horizons (Aust) Ltd (O’Connor), BlueScope Steel (AIS) Port Kembla (Antony), Sydney Trains (Robinson), San Churros (Richings), Miele Australia Pty Ltd (Weninger), On Site Fleet Wash Pty Ltd (Loxton), Viterra Operations Pty Ltd (Shearing).
August 10, 2017
TERMINATION OF EMPLOYMENT – performance – s.604 Fair Work Act 2009 – permission to appeal – Full bench – appellant was employed by CrimTrac since September 2013 and employment was terminated by respondent on 30 November 2016 following a performance improvement process – Commission at first instance found the process undertaken by respondent was thorough and fair and there was a valid reason for dismissal – appellant sought permission to appeal on 12 grounds – on related grounds, appellant contended that Commission erred in not properly considering the effect of CrimTrac’s merge with the Australian Crime Commission in July 2016 on his Performance Improvement Plan (PIP) – contended the PIP should have been modified and he was not properly informed of its ongoing application following the merger – that ‘close supervision’ should have been provided to him as required under the new Australian Crime Commission Enterprise Agreement 2011-2014 which replaced CrimTrac’s agreement – appellant raised issues with the Commission’s consideration of evidence, including that those reviewing the PIP were not subject matter experts – appellant alleged that he was denied opportunity for a support person – among other grounds, appellant alleged Commission did not properly interpret the concept of ‘valid reason’ as expounded in Rode and that respondent was ‘tardy’ in delivering documents which the Commission ordered to produce – Full Bench satisfied Commission had not erred in its assessment of the transfer of business and the application of the new agreement on the PIP – appellant had not raised his concerns with the respondent at the time, and that he bore some responsibility as an Executive Level employee for staying informed – not persuaded that Commission erred in consideration of any part of evidence – found appellant was not denied reasonable opportunity for support person – satisfied Commission set out relevant case law concerning valid reason and applied them correctly – satisfied that respondent complied with directions for production of documents – Full bench not satisfied findings by Commission were made in error – appellant had not identified any issue which raised matters of importance that would be sufficient to enliven public interest – findings of Commission in first instance were harmonious with other decisions of the Commission – permission to appeal refused. Appeal by Knight against decision of Kovacic DP of 5 May 2017 [[2017] FWC 2488] Re: Commonwealth of Australia (Australian Criminal Intelligence Commission)
August 10, 2017
ANTI-BULLYING – likely to continue – ss.604, 789 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed application for stop bullying order – appellant appealed decision – appellant requested appeal hearing be adjourned – request denied – appellant did not file submissions or attend appeal – Commission found at first instance appellant no longer employed by respondent at time of application – no foreseeable basis that appellant would be in workplace – no risk appellant would be bullied in future – Commission satisfied no basis to make stop bullying order – application had no reasonable prospects of success – exercised discretion to dismiss application – Full Bench considered whether Commission correctly applied and construed ss.789FC and 789FF FW Act in dismissing application – appellant submitted she had mental illness caused by employment with respondent – claimed resignation and Release Agreement signed when suffering from mental illness and on medical leave – claimed neither signature or resignation effective – respondent submitted Release Agreement evidenced appellant no longer in employment – submitted not a matter for Commission to consider the merits of how or why employment ended – submitted Commission followed established principles where employee no longer employed – Full Bench will grant permission to appeal if in public interest – Full Bench considered order to stop bullying may only be issued if future risk of bullying in workplace [Atkinson] – Full Bench found it was clear appellant’s employment ceased – no ongoing risk of bullying – Commission had regard to evidence and applied relevant principles – Full Bench not satisfied Commission erred in dismissing the application – not satisfied arguable case of error of any other ground of appeal – not satisfied matter attracts public interest or in public interest to grant permission to appeal – permission to appeal refused. Appeal by Lin against decision of Lee C of 2 June 2017 [[2017] FWC 2947] Re: Woolworths Limited P/L t/a Woolworths Limited
August 10, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as an underground diamond driller – dismissed after driving a light vehicle underground and striking the side of a drain causing damage to the vehicle – applicant left the scene of the accident and did not preserve the scene or immediately report the accident – whether dismissal harsh, unjust or unreasonable – applicant acknowledged that he failed to follow the correct incident management process – applicant previously given written warnings about work performance – Commission found previous warnings not directly related to the reason for dismissal – satisfied respondent had valid reason for dismissal – Commission found dismissal of applicant was not unfair, unjust or unreasonable – application dismissed. Edgar v SMS Operations P/L t/a Swick Mining Services
August 10, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent failed to file Form F3 or attend conciliation conference – applicant filed materials in support of application on 29 March 2017 – respondent did not file any materials – application decided based on material lodged – applicant commenced employment with respondent as an office manager on 1 July 2016 – applicant became aware that respondent would cease operations on 6 December 2016 – sought confirmation of employment status and payment of her salary – applicant submitted she was not paid for the month of December 2016 – did not receive any notice of dismissal – Commission examined whether applicant protected from unfair dismissal – not satisfied applicant completed minimum period of employment – found applicant not protected from unfair dismissal – application dismissed. Zhang v Enjoy Going P/L
