TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant terminated for misconduct in relation to two incidents involving a co-worker – applicant submitted that there were procedural defects in respondent’s investigation of the incidents – further submitted that having regard to his length of service, personal and economic situation, and seriousness of allegations, the dismissal was harsh, unjust and unreasonable – respondent submitted that applicant’s behaviour was an inappropriate interaction in the workplace, threatening and upsetting to his co-worker, a breach of relevant enterprise agreement, a breach of Code of Conduct and Working Together Policy and inconsistent with workplace health and safety obligations – Commission found that applicant’s conduct in period leading up to and including his being stood down would meet definition of bullying as set out in s.789FD of FW Act – applicant submitted that his actions did not represent a risk to health and safety, but even if it did so it was minimal – found the impact that applicant’s conduct had on co-worker was sufficient to be satisfied it represented a risk to co-worker – found combination of conduct, continued denial of allegations during investigation and respondent’s findings that allegations were made out – conduct was a repetition of similar earlier conduct despite existence of earlier warning and training – found respondent had valid reason to dismiss applicant – satisfied respondent did give due weight to range of issues including applicant’s length of service – found there was valid reason for termination and that process followed was not procedurally flawed – not satisfied considerations under s.387(h) outweigh other considerations – found dismissal was not harsh, unjust or unreasonable – application dismissed. Braughton v Coca-Cola Amatil Limited t/a Coca-Cola Amatil
July 21, 2017
ANTI-BULLYING – bullied at work – repeated behaviour – reasonable management action – s.789FC Fair Work Act 2009 – application for an order to stop bullying – team leader and employer objected to application on basis that there was no repeated unreasonable behaviour, no risk to health and safety, and that in any event, the circumstances represented reasonable management action carried out in reasonable manner – Commission found circumstances involved two strong personalities who both have a genuine commitment to their work – no reason to doubt that applicant believed he had been bullied by being singled out and treated differently from other employees – this of itself not sufficient to establish he had been ‘bullied at work’ in context of legislative framework – Mac v Bank of Queensland Limited and ors considered – Commission satisfied team leader’s actions did not form any part of pattern of repeated unreasonable behaviour – unable to conclude team leader’s behaviour was unreasonable in the circumstances – team leader’s approach in dealing with team members was likely different from predecessors’ – this may have created concern among some employees but was not enough to constitute workplace bullying – Commission held there was no repeated unreasonable behaviour towards applicant in a way that can be said that he had been bullied at work – application dismissed. Krnjic
July 21, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed since 1996 as a truck driver – dismissed after driving a B-Triple vehicle on a route that was not approved for such vehicles – vehicle regularly exceeded speed limit for B-Triple vehicles – Commission found that driving B-Triple vehicle on nonapproved route at an excessive speed a significant breach of the Heavy Vehicle National Law and obligations of applicant’s contract of employment – conduct risked safety of applicant and other road users – Commission found applicant’s conduct a valid reason to terminate his employment – not persuaded termination was harsh, unjust or unreasonable – application dismissed. McIntyre v Qube Logistics (SA) P/L
July 21, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – applicant employed across varying roles at sugar cane mills – applicant owned personal sugar cane harvesting business – respondent issued notice that annual leave would not be granted during crushing season – applicant granted paid carer’s leave for wife’s pregnancy complications – applicant then granted three weeks annual leave – applicant claimed hours on paid carer’s leave spent caring for wife and out of hours harvesting personal cane – respondent believed applicant should not have cut cane during paid carer’s leave – employment suspended – at meeting respondent informed applicant employment would not be terminated if he complied with certain conditions such as submitting timesheets of working hours in own business – applicant did not agree – said this was an attempt to force him to resign as it was unworkable and invaded privacy – employment terminated on basis of serious misconduct – applicant alleged three separate incidents of discrimination against him from respondent – Commission found harvesting out of hours while on carer’s leave not valid reason for dismissal – nature of carer’s leave different from sick leave – where activities outside applicant’s ordinary hours of work and adequate care arranged then not employer’s concern – Commission found applicant’s unreasonable refusal to provide information that respondent reasonably and lawfully requested in the employment conditions valid reason for dismissal – dismissal not harsh, unjust, unreasonable or discriminatory – Commission noted respondent should consider appropriate payment during stand down period – application dismissed. Munro v Wilmar Australia P/L
July 18, 2017
Whilst forty-four unfair dismissal/labour dispute applications are due to be heard today by Fair Work Commissioners, twenty emanate from a single employee. The full list is: Tangentyere Council Aboriginal Corporation (Newchurch), Warrnambool Cheese and Butter Factory Company Holdings Limited (Brody), SMS Operations Pty Ltd (Edgar), Catholic Education Diocese of Bathurst (Churchland), Leeton Preschool Association Inc. (Norman), BGL Operations Pty Ltd (Tran), Wilson Services Company Pty Ltd (Marshall), Whitehaven Coal Mining Limited (Warren), Architectural Project Specialist (Nicolaou), Life Without Barriers (Ezea), ACT Government – Transport Canberra and City Services (Thomas), Stegbar Pty Ltd (Staniland), A and A Excavations (Cooper), Awabakal Local Aboriginal Land Council (Towers), Ron Finemore Transport Services Pty Ltd (Beale, Campbell, Catto, Curypko, D’Aloisio, Dimech, Galati, Gordon, Hennessey, Henshaw, Hine, Hooper, Lewer Marshall, Munro, Pavlovic, Powles, Smilevski, Smith), Solene Investments (Aus) Pty Ltd (Diaz), Beecham Motors Pty Ltd (Leivers), Austral Masonry (Kenny-Bakic), Cairns Community Legal Centre Inc (De Bonis), Outback Adventures Camping Stores (Whitehead), Sanpoint Pty Ltd (Arevalo), Australian Submarine Corporation Pty Ltd (Dean), Millennium Services Group Ltd (Hannemann), Community Caring Pty Ltd (Dignon, Morris).
July 14, 2017
Twenty one applicants are lined up today to pursue a mix of unfair dismissal and labour contract disputes in the Fair Work Commission. The full list is: Cancer Patients Assistance Society of New South Wales (Pritchard), Colin Joss & Co Pty Limited (Bennett), Visy Board Proprietary Limited (Kennedy), Lynch Manufacturing NSW Pty Ltd (Maciel), JDP Formwork Pty Ltd (Kvackovski), Scribal Group Pty Ltd (Lindley), nib health fund ltd (Smith), PPK Mining Equipment Pty Ltd (Barnden), Islamic Society of Victoria (Abou-Eid), SWAT Building Systems Pty Ltd (Fleming), Keycorp (Dixon), Clariant Australia Pty Ltd (Paterson), On Site Fleet Wash Pty Ltd (Loxton), Australia Post (Sambastian), Toyota Finance Australia Limited (Parker), Royal Flying Doctor Service of Australia (Wieland), UGL Operations and Maintenance Pty Ltd (Saxon), Unisys (Abbey), DP World Melbourne (Borg), Northwest Supermarkets Pty Ltd (Johnson), Faraz Demehri (Ligonis).
July 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision dealt with Real Estate Industry Award 2010 (Award) as part of conduct of 4 yearly review of modern awards – exposure draft published on 18 December 2015 – further exposure draft published on 29 April 2016 – number of issues in contest identified in submissions made by interested parties and referred to Full Bench for determination – interested parties included Registered Real Estate Salesperson’ Association of South Australia (RRESSA), Real Estate Employers’ Federation, Queensland Real Estate Industrial Organisation of Employers, Real Estate Employees’ Federation of Western Australia, Real Estate Institute of Victoria, Real Estate Employers’ Federation South Australia and Northern Territory, and Australian Property Services Association (APSA) – RRESAA proposed to increase minimum award wages as employees under Award did not have access to minimum rates adjustments prior to making of Award to recognise value of their work – Full Bench satisfied in principle that there were work value grounds to increase minimum rate in Award for Property Sales Representatives – Full Bench provisionally determined to grant increase claimed by RRESSA to minimum Award rate for Property Sales Representatives – RRESAA proposed to amend Minimum Income Threshold Amount (MITA) for commission-only employment – Full Bench provisionally determined to set MITA for entry into commission-only employment arrangements at 25% of minimum Award rate for salespersons classifications – further provisionally determined to insert provision into Award that where commission-only salesperson ceases to be employed on basis of failure to meet MITA in 12 month period should not be prevented from subsequently being engaged on commission-only arrangement provided salesperson meets MITA at future point – any assessment should be undertaken over further three year period commencing no earlier than the point at which employee ceased to be commission-only employee – parties generally agreed with Full Bench proposal to amend minimum commission only rate so that commission-only employees are entitled to 31.5% of employer’s gross commission – RRESSA proposed to delete clauses which provided for commission-only agreements to allow for annual leave, personal carers’ leave or any other entitlement under NES to be paid in advance – Full Bench provisionally determined to amend Award to make clear that employees must be paid for leave at minimum of base rate of pay prescribed for employee’s classification under Award – RRESSA also proposed to insert new clause prohibiting written agreements from containing provisions for debiting any amount relating to vendor advertising and marketing expenses or long service leave entitlements from commission, bonus or incentive entitlements – Full Bench did not intend to grant this claim – Full Bench also not persuaded to grant APSA proposal to insert new clause to provide where employee engaged on commission-only basis and does not in each six month period of employment earn equivalent of Award wage, then employee be required to pay employee difference between Award wage and commission earnings – further exposure draft of Award to be released to assist parties discuss outstanding issues – in event agreement not reached between parties, conference to be convened before Asbury DP. 4 yearly review of modern awards – Real Estate Industry Award 2010
July 14, 2017
ENTERPRISE AGREEMENTS – employee organisation coverage – ss.176, 201, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission noted that the Unity Water Industry Field/Outdoor Employees (Operations and Maintenance – Non-Trade) Enterprise Agreement No 1 (the Agreement) covered the Construction Forestry Mining and Energy Union (CFMEU) – appeal by Northern SEQ Distributor – Retailor Authority t/a Unitywater (Unitywater) and Australian Workers’ Union (AWU) – at first instance Commission determined that Mr Grocott was eligible to be a member of the CFMEU and Agreement covered CFMEU based Mr Grocott’s job – subject of appeal was whether primary purpose of Mr Grocott’s employment was to operate an excavator rather than be a Crew Member – Unitywater submitted primary purpose of Mr Grocott’s employment needed to be determined – further submitted that in focusing on Mr Grocott’s work as an excavator driver the Commissioner erroneously focused on an aspect of his work in isolation – AWU submitted as the CFMEU was not entitled to represent the industrial interests of Mr Grocott the notice given by the CFMEU under s.183 was void and had no effect – contended that question to be determined was whether it was able to represent his industrial interests in relation to work that will be performed under the Agreement – further submitted the assessment of how work was to be performed or arranged was required – CFMEU submitted permission to appeal should not be granted because matter in dispute did not rise any higher than the interests of the parties – further submitted there was no error in determining what was the primary purpose of Mr Grocott’s employment – posited AWU did not have the requisite standing to appeal – Full Bench satisfied AWU had sufficient interest to be characterised as a person aggrieved by first instance decision and it has rights that co-exist with CFMEU – not satisfied Commissioner’s Position Description conclusions manifested any error – not satisfied that the Commissioner erred in concluding that the job description did not determine the primary purpose for which Mr Grocott was employed – not satisfied the Commissioner erred in the factual findings he made – not satisfied the Commissioner erred in observing his decision would have limited consequences – not satisfied it is in the public interest to grant permission to appeal – not persuaded there are other considerations which warrant permission to appeal be granted – held Decision turns on its own facts and does not raise any issue of importance or general application, its relevance is limited to particular factual matrix before the Commission – the manner in which parties chose to have matter determined limited evidentiary material before Commission – held Commissioner correctly stated and applied applicable test in relation to whether an employee organisation is entitled to represent industrial interest of particular employee and reached the correct conclusion – there was neither sufficient doubt to warrant decision reconsideration nor substantial injustice – permission to appeal refused. Appeal by Northern SEQ Distributor-Retailer Authority against decision of Roe C of 20 January 2017 [[2017] FWCA 454] Re: Construction, Forestry, Mining and Energy Union
