ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with a dispute under Insurance Australia Group Enterprise Agreement 2012 (Agreement) – applicant was employed since 25 August 2008 until resignation on 16 February 2016 – dispute concerned applicant’s request for over seven years’ pro-rata long service leave, to be paid with termination payment – request was denied by employer as applicant failed to satisfy conditions under the dispute resolution procedure of Agreement – application to deal with dispute filed on 16 March 2017, a year after applicant’s employment was terminated and at a time where Agreement ceased to operate – subsequently procedure for resolving workplace issues under Agreement was no longer in operation and could not be used – as she was not an employee at the time of filing the application, she was also not covered by the new 2016 Agreement – Commission found that it did not have jurisdiction to deal with application – application dismissed. Taylor v WFI / IAG Group t/a WFI Insurance Limited. Insurance Australia Group Services P/L and Insurance manufacturers of Australia P/L
August 10, 2017
INDUSTRIAL ACTION – order against industrial action – ss.413, 418, 420, 596 Fair Work Act 2009 – application for an order that industrial action by employees or employers stop – application sought order specifically against the relevant employees and Union delegate (Mr Standish) of Transport Workers’ Union of Australia (TWU) – parties granted permission to be represented by lawyers or paid agents – evidence established the TWU and relevant employees had organised and taken various forms of protected industrial action since January 2017 – pattern and nature of taking protected industrial action escalated from July 2017 including a proposal from Mr Standish to engage the services of a contractor to run the employer’s South Australian operation sent by email – applicant claimed this demonstrated an ulterior motive and purpose for the taking of industrial action, that being a proposed business venture for it to enter into labour hire or contracting arrangement with Mr Standish that would result in the employer terminating the employment of the relevant employees – Commission noted Mr Standish’s email was prima facie directly contrary to reaching an agreement – Commission determined it would not be contrary to the public interest to make and Interim Order broadly in the terms of the final Order sought by the employer – Interim Order issued accordingly [PR594847], to operate until application determined. Prosegur Australia P/L t/a Prosegur v Transport Workers’ Union of Australia and another
August 10, 2017
GENERAL PROTECTIONS – extension of time – representative error – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged five days late – applicant’s explanation for delay was an error made by legal representative with respect to failing to insert the [email protected] email address in the original filing email – applicant submitted she was entitled to rely upon her legal representative’s expertise to ensure compliance with the FW Act – Nulty considered – late lodgement of an application due to representative error may be grounds for an extension of time [Clark v Ringwood Private Hospital] – actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable – Commission satisfied that applicant was not to blame for the delayed lodgment of her application – found exceptional circumstances exist – extension of time granted. Kemp v Real Pet Food Company t/a VIP Petfoods (Aust.) P/L
August 10, 2017
CASE PROCEDURES – evidence – production of documents – s.365 Fair Work Act 2009 – at first instance applicants made application under s.365 FW Act to deal with general protections applications involving dismissal in accordance with Part 3-1 FW Act – applicants alleged respondent contravened s.351 FW Act because their employment was terminated because of “national extraction or social origin” – five Orders pursuant to s.590(2)(c) were issued upon request of two applicants in relation to substantive matter – respondent objected to Orders issued – respondent submitted Native Title Documents were produced for Federal Court proceedings and matter was resolved without Native Title Documents being formally received into evidence – respondent submitted documents produced for purposes of litigation are subject to implied undertaking and are not to be disclosed without leave of the Court – respondent submitted some documents were irrelevant to proceedings as task of Commission is to assess decision maker’s genuinely held beliefs about inherent requirements of role not whether in fact applicants met inherent requirements of role – respondent also submitted compliance with Order to produce native title documents was oppressive given exposure to civil contempt and large amount of material – respondent further submitted parties to substantive matter had not yet filed/served evidence or submissions therefore ordering documents would be premature and unnecessary – accepted matter did not require Commission to decide matter in dispute, namely whether applicants were or are members of Barada Barna Nation – Commission found matter requires determination about decision maker’s genuinely held beliefs concerning inherent requirements of role before termination and whether dismissals were unlawful under any anti-discrimination law – found it was too early to determine whether such material may be relevant when nature of applicants’ case had not yet crystallised – held better course was for parties to file material in support of their respective cases and after having seen the material the Commission will be in a better position to determine what documents should be subject of an Order if any – held Orders were premature – Orders revoked. Roos and Ors v Winnaa P/L
August 10, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for alleged bullying of colleague – applicant allegedly approached colleagues, requested they join a union and behaved aggressively when colleagues declined – applicant allegedly told one colleague he would isolate him and another colleague he would find a way to have his employment terminated if they did not join union – applicant gave evidence that he had conversations with colleagues about joining a union but he did not pressure them in any way and the exchanges were not heated – colleague made complaint about applicant’s behaviour – respondent conducted preliminary investigation but matter did not resolve – commissioned external investigation which found allegation to be substantiated – applicant’s employment terminated for reason of bullying under definition of the FW Act – whether dismissal harsh, unjust or unreasonable – Commission satisfied on the balance of probabilities from evidence that respondent had valid reason for dismissal – no procedural flaws – no other matters – applicant not unfairly dismissed – application dismissed. King v The Trustee for Bartlett Family Trust t/a Concept Wire Industries
August 10, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant alleged she was unfairly dismissed by the respondent – submitted question to be determined was whether cessation of employment was objectively the probable result of conduct – claimed her employment did not end with each engagement and although no guarantee of follow-up engagement, employment did not end until brought to an end by either party giving notice – respondent claimed applicant was not dismissed within the meaning of s.386 FW Act – submitted applicant’s contract of employment ended due to the effluxion of time – whether applicant’s employment terminated at respondent’s own initiative – Lunn applied – Commission found applicant was employed under a series of sessional engagement agreements which had a specific beginning and end – found contracts offered to applicant were for non-ongoing employment and for defined terms – application for unfair dismissal without jurisdiction – application dismissed. Tran v Online Education Services P/L t/a Swinburne Online
August 10, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – s.36 Acts Interpretation Act 2901 – application to deal with contraventions involving dismissal – whether s.36 of the Acts Interpretation Act 1901 (Cth) applied – due to public holiday in Queensland application lodged one day out of time – Commission satisfied application was made within time – no extension required – noted if application of s.36 of the Acts Interpretation Act incorrect Commission needed to consider whether exceptional circumstances existed [Nulty] – reason for delay by applicant included representative error – respondent argued date of lodgement actually 7 June 2017 – Commission satisfied original application lodged on 2 May 2017 contained sufficient information – found delay did not prejudice respondent – held s.36 of the Acts Interpretation Act applied – if not, Commission satisfied exceptional circumstances existed – extension of time granted – application referred for conciliation. Springfield v Hegele Logistics Australia P/L
August 10, 2017
INDUSTRIAL ACTION – order against industrial action – interim order – ss.418, 420 Fair Work Act 2009 – application for orders that industrial action stop, not occur and not be organised – application directed at AMWU and applicant’s employees who were AMWU members, or eligible to be members, and who worked at Dandenong site – applicant had not served employees – AMWU opposed application but needed further instructions – applicant suggested interim orders be made in circumstances – Operations Manager gave evidence that after AMWU delegate expressed concerns about new drug and alcohol policy, employees failed to work rostered overtime – as far as practicable, Commission must determine application for order to stop or prevent industrial action within two days after application is made – if Commission is unable to determine application within two days, it must make interim order – Commission adopted approach to making interim orders expressed in [Fredon] – it is a condition precedent for making interim order that Commission concludes it is unable to determine application in two days – requirements of procedural fairness apply – Commission must deal with unprotected industrial action expeditiously – consideration must be given to whether making interim order would be contrary to public interest – Commission found it was unable to fairly determine application within two days – satisfied that procedural fairness was likely to be denied if matter were determined before employees had been served with application, in circumstances where respondent had not obtained adequate instructions from its delegates or affected members – requirement that Commission deal with unprotected industrial action expeditiously does not displace obligation to afford procedural fairness entirely – Commission satisfied it would not be contrary to public interest to make interim order pending determination of substantive application – interim order issued and hearing listed. Visy Board P/L v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
