TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for unfair dismissal remedy filed on 15 December 2016 – on 27 December 2016 Managing Director of respondent emailed Commission asserting that applicant’s employment had not been terminated and instead had been directed to relocate back to China due to decision by respondent’s parent company to close Western Australian operations – sought clarification as to whether respondent required to file response to application – Commission confirmed on two occasions that respondent required to file Form F3 response – respondent and applicant participated in a telephone conciliation on 23 January 2017 which did not resolve – following conciliation respondent indicated it would send Form F3 response within seven days – failed to do so – on 17 January 2017, Ms Yi Zhang (second applicant) filed an application for unfair dismissal remedy – applicant and Ms Yi Zhang requested to have both applications joined and heard together – no response received from respondent in relation to applications – applications listed for conciliation conference on 23 February 2017 – both applicants attended the conference – respondent did not appear and could not be contacted by telephone – on 21 March 2017 the applications listed for hearing on 18 April 2017 for determination – hearing date vacated and applications decided on the papers – applicant asserted in her Form F2 that she began working for respondent on 19 March 2014 – however applicant’s Outline of Submissions indicated that applicant signed employment contract on 1 July 2016 – applicant given notice of dismissal on 1 December 2016 – Commission not satisfied that applicant started employment with respondent on 19 March 2014 – found applicant’s service with respondent was insufficient to meet the minimum employment period – found applicant not protected from unfair dismissal – application dismissed. Zhang v Enjoy Going P/L
August 10, 2017
CASE PROCEDURES – appeals – appeal against Statement – extension of time – s.604 Fair Work Act 2009 – Full Bench – applicant sought permission to appeal against Statement issued on 2 February 2015 – application to extend time to lodge appeal – appellant contended in originating dispute that BHP Coal Saraj Mine had utilised a number of labour hire employees but had not paid them in accordance with clause 10.2.4 of BHP Coal P/L Enterprise Agreement 2004 (2004 Agreement) – at first instance Commission held no jurisdiction to deal with dispute or grant relief sought – rule 56 Fair Work Commission Rules 2013 considered – whether interests of justice favour an extension of time for lodging appeal – Full Bench not satisfied with explanation of delay in lodging appeal – whether grounds of appeal would be upheld if time extended – Commission’s powers of appeal only exercisable if error is on the part of primary decision maker [Coal & Allied] – no right to appeal, only with the permission of tribunal – whether Commission at first instance was correct in that concluding it did not have jurisdiction to deal with dispute – respondent contended Statement not a decision for purposes of s.604 FW Act but an expression of opinion resulting from conference – Full Bench rejected characterisation – held that Statement decides question of jurisdiction – appellant identified alleged errors in Statement – Full Bench considered each matter identified and held that none raised an arguable case of error warranting correction on appeal – held Commission was correct in first instance to conclude there was no jurisdiction – stated 2004 Agreement ceased to exist when replaced by 2007 Agreement which was later replaced by 2012 Agreement – concluded dispute could not be dealt with under 2012 Agreement as there was no equivalent term to clause 10.2.4 of 2004 Agreement – not persuaded respondent would suffer prejudice if time to lodge appeal extended – concluded appeal had little or no prospect of success – not persuaded it was in interests of justice to extend time to file appeal – application to extend time dismissed. Appeal by Streeter against Statement of Deputy President Asbury of 2 February 2015 Re: BHP Coal P/L
August 10, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400 Fair Work Act 2009 – permission to appeal – Full Bench – Commission at first instance dismissed unfair dismissal application – found that applicant’s actions breached company policy – found valid reason for dismissal – s.400 test stringent but task of assessing public interest discretionary [GlaxoSmithKline] – rarely appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, as appeal cannot succeed in the absence of appealable error [Wan] – error made by a Commission member is not necessarily a sufficient basis to grant permission to appeal [GlaxoSmithKline] – not necessary to conduct detailed examination of grounds for appeal to determine grant of permission to appeal [MTGI v Johnston] – appellant contended that Commission erred in finding that conduct justified summary termination, erred in failing to take into account that there existed a common practice and other employees had engaged in the same practice, and erred in failing to give adequate consideration to lack of procedural fairness and lack of policy refresher training; appellant’s length of service, work history, personal circumstances and honesty regarding behaviour – Full Bench held that Commission erred by not considering whether summary dismissal of applicant for breach of policy was warranted – held that Commission had considered the common practice of the employees – held that personal circumstances, service and work history of appellant were all taken into account at first instance – held that appellant made arguable case that proportionality of summary dismissal to conduct was not considered – Full Bench satisfied that appeal attracted public interest – permission to appeal granted – directions to be issued separately. Appeal by Johnson against decision of Hamilton DP [2017] FWC 2866 Re: Northwest Supermarkets P/L t/a Castlemaine IGA
August 10, 2017
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – Full Bench – application for termination of an enterprise agreement after its nominal expiry date – on 5 July 2016 Ms Vickers made an application to Commission for the termination of the Coles Supermarkets Australia Pty Limited and Bi-Lo Pty Limited Retail Agreement 2011 – directions issued on 19 May 2017 which required Ms Vickers to file and serve her evidentiary material and an outline of submissions on or before 27 July 2017, and any party opposing her application (which included Coles, the SDA and the AWU) to file their evidence and submissions on or before 14 September 2017 – on 26 July 2017, a day before she was due to file her evidence and submissions, Ms Vickers sent correspondence to the Commission advising she was unable to comply with the direction upon her in that respect and requested an extension of time until 31 August 2017 – she identified a number of reasons for her incapacity to comply with the direction to file her evidence, including the data required to be produced by Coles was not sent to her until 3/4 July 2017, that Dr Truslove (who is preparing an expert’s report in support of her case) had spent until 17 July 2017 ‘reconciling it [the data] into a format fit for use’, and that he had then sought clarification from Coles’ lawyers about ‘discrepancies he had identified’ to which he had not received a response until 19 July 2017 – consequence of being granted the five week extension of time was that hearing dates set in October 2017 would have to be vacated because the equivalent extension of time would need to be granted to those parties opposing her application – Full Bench considered it appropriate to grant the extension of time sought by Ms Vickers – current hearing dates to be vacated and new hearing dates set – Full Bench considered that Ms Vickers, as a self-represented litigant, should be given the fullest opportunity to advance her case – new directions issued. Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011
August 10, 2017
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
