MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision concerned several proposed variations to Road Transport and Distribution Award 2010 (Road Transport Award) and Road Transport (Long Distance Operations) Award 2010 (Long Distance Award) – Transport Workers’ Union of Australia (TWU) and Australian Industry Group (Ai Group) (the applicants) filed proposed variations – TWU proposed three variations to Road Transport Award and three to Long Distance Award – Ai Group proposed three variations to Road Transport Award – TWU proposed inserting definition of ‘driver’ in Road Transport Award – Full Bench not persuaded that variation necessary and no evidence presented to demonstrate that lack of definition led to difficulties for employers and employees – TWU also proposed variation to definition of ‘road transport and distribution industry’ with insertion of new subclause (j) – Full Bench considered there was arguable case that some provisions of Road Transport Award be modified in its application to group of employees and proposed to convene conference of interested parties to explore issues further – TWU proposed to insert new subclause 27.8 of Road Transport Award relating to overtime – Full Bench saw merit to require that employee who works temporarily under Road Transport Award should have hours of work performed under the other award to count towards ordinary hours of work under Road Transport Award, but did not think there was sufficient evidence to demonstrate that proposed variation was necessary to meet modern awards objective, did not consider proposed amendment be made – TWU filed draft determination seeking to replace current clause 13.5(a)(iii) in Long Distance Award in relation to Fatigue Management Plans (FMP) – Full Bench considered that effect of proposal was merely that a copy of relevant FMP for that journey be provided to driver and considered that the proposed variation be made with slight alteration to the wording – TWU filed further two draft determinations seeking to give effect to its proposal to insert new pickup and drop-off allowance into Long Distance Award – argued that drivers were not being properly compensated for multiple pickups and drop-offs and that these pickups and drop-offs cannot be considered as part of long distance operation, so should attract additional remuneration – Full Bench did not consider that proposed variations should be made without thorough reassessment of schedules and operations and declined to make proposed variations – Ai Group proposed variations to meal allowance provisions of Road Transport Award – Full Bench not persuaded that change was justified – agreed with TWU that a case has not been made for what was effectively a removal of meal allowance for certain employees – Ai Group further proposed variation to higher duties provisions of Road Transport Award – Full Bench not persuaded that current higher duties clause failed to strike fair and relevant balance between needs of employers and employees – declined to make proposed variation – in conclusion, Full Bench varied Road Transport Award with addition of new subclause added to definition of ‘road transport and distribution industry’ and convened conference of interested parties to discuss further modifications to Road Transport Award for accommodation of particular features of vehicle relocation work – also approved addition to end of clause 13.5(a)(iii) of Road Transport Award – no other variations to awards were made. 4 yearly review of modern awards – Road Transport and Distribution Award 2010 and Road Transport (Long Distance Operations) Award 2010
July 14, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 186, 604 Fair Work Act 2009 – appeal – Full Bench – CFMEU appealed Commission decision to approve Enterprise Agreement – CFMEU grounds of appeal were that Commission erred in being satisfied that respondent met the relevant pre-approval steps – that the Agreement was genuinely agreed to – that the Agreement met the Better Off Overall Test (BOOT) – that the Agreement did not contain any unlawful terms – Full Bench required to grant permission to appeal if satisfied in the public interest to do so – GlaxoSmithKline considered – Full Bench found Commission erred in being satisfied the Agreement met the BOOT – for other grounds of appeal permission to appeal not granted – CFMEU submitted the Commission could not have been satisfied Agreement met BOOT as wages rates in Agreement included the all-purpose allowance payable under Mining Industry Award (Award) meant rates in Agreement were lower than in the Award – respondent submitted the BOOT is not a line by line comparison – further submitted there were a number of other favourable terms in Agreement in comparison to Award including other allowances – Full Bench considered Armacell Australia – considered whether there were other beneficial terms that may offset diminution of rates of pay by absorption of industry allowance into wages – Full Bench found slight increases in allowances in Agreement did not balance out loss of industry allowance in Award as allowances in Agreement only applied to specific functions – found Agreement incapable of passing BOOT because failure of jurisdictional prerequisite for approval – permission to appeal granted – appeal upheld – decision quashed – matter remitted for redetermination. Appeal by Construction, Forestry, Mining and Energy Union against decision of Gregory C of 17 January 2017 [[2017] FWCA 325] Re: TR Construction Services P/L
July 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – Commission at first instance dismissed unfair dismissal application – found serious misconduct – found that despite circumstances and possibility of procedural unfairness applicant’s prospects of providing a satisfactory explanation were not likely and would make no difference to outcome of matter – appellant was selfrepresented – permission to appear granted to respondent representative due to complexity of matter – appellant advanced numerous grounds for appeal including specific errors and significant errors of fact – s.400 test stringent but task of assessing public interest discretionary [Coal & Allied] – rarely appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, an appeal cannot succeed in the absence of appealable error [Wan] – an error made by a Commission member is not necessarily a sufficient basis to grant permission to appeal [GlaxoSmithKline] – not necessary to conduct a detailed examination of grounds for appeal to determine the grant of permission to appeal [MTGI v Johnston] – Full Bench satisfied that appellant did not demonstrate arguable case of appealable error – could not detect any significant error of fact or error of law – not persuaded that public interest is enlivened by appellant’s dissatisfaction with an outcome where there is no arguable case of appealable error – permission to appeal refused. Appeal by Strauss against decision of Drake SDP of 17 March 2017 [[2017] FWC 1574] Re: Patrick Projects P/L
July 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – various employer and union bodies made applications to vary provisions concerning casual employment and part-time employment in a number of modern awards – applications were heard together – applications in two broad categories – first, there were applications which sought the variation of a broad number of modern awards in a standardised way – these applications were given the nomenclature ‘common claims’ – second were applications directed to specific modern awards – common claims – the Australian Council of Trade Unions (ACTU) common claim consisted of three elements – first the ACTU sought a model casual conversion clause to be placed in 88 modern awards which did not already contain such a clause, as well as in 17 modern awards which do currently contain such a clause, and further that the existing casual conversion clauses in 5 other modern awards be altered so that casual employees meeting specified criteria would be deemed to have become permanent employees after an identified period – the second element was a standard provision for modern awards to require a standard daily minimum engagement period of 4 hours for all casual and part-time employees – the third element was a model clause which prohibited employers from engaging and re-engaging casual employees to avoid award obligations, required consultation with current casual and/or part-time employees about increasing their hours of work prior to engaging new employees, and required that casual employees upon engagement be informed of their classification and rate of pay – the Australian Manufacturing Workers’ Union (AMWU) claimed two variations to the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (VMRSR Award), the Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award) and the Food, Beverage and Tobacco Manufacturing Award 2010 (Food and Beverage Award) – the first would vary the existing casual conversion clauses to a ‘deeming’ model of conversion – the second would vary the current minimum engagement provisions for casual and part-time employees so that the minimum period would be four hours, or three hours by written agreement between the employer and the employee – the Australian Industry Group (Ai Group) sought a variation to the existing casual conversion clauses in 21 modern awards to remove the requirement upon employers to notify eligible casual employees of their right to request to convert to permanent employment – the Recruitment & Consulting Services Association Australia & New Zealand (RCSA) similarly sought to have the notification requirement in the existing casual conversion clauses in 20 modern awards removed – in relation to the casual conversion element of the ACTU claim, the Full Bench decided it was necessary that modern awards contain a provision where casual employees may elect to convert to full-time or part-time employment, subject to specified criteria and restrictions – the Full Bench accepted the proposition advanced by the ACTU that the unrestricted use of casual employment without the safeguard of a casual conversion clause may operate to undermine the fairness and relevance of the safety net – a draft model casual conversion provision with qualifying period of 12 calendar months was developed for 85 modern awards which do not currently contain a provision of this nature – interested parties provided with an opportunity to make further submissions about the terms of this proposed model provision to be filed be filed on or before 2 August 2017 – the Full Bench did not consider that the ACTU established a case to vary the casual conversion clauses in any existing modern award – not satisfied that the modern awards objective requires the grant of the other two elements of the ACTU claim – in relation to the AMWU claim, the Full Bench did not accept that it was necessary to alter the existing casual conversion clauses to a ‘deeming’ model in order to meet the modern awards objective – the Full Bench did grant the AMWU claim to vary the casual minimum engagement provisions in the four named awards – considered that a facilitative provision with a minimum ‘floor’ of a 3 hour minimum engagement was necessary to achieve the modern awards objective in this respect – the claim advanced by the Ai Group and the RCSA to remove the notification requirement upon employers in existing casual conversion clauses was rejected – specific award claims – hospitality awards – claims were advanced by employer organisations for more flexible part-time employment provisions in the Hospitality Industry (General) Award 2010 (Hospitality Award) and the Registered and Licensed Clubs Award 2010 (Clubs Award) – United Voice made a claim for overtime penalty rates in the Hospitality Award, the Clubs Award and the Restaurant Industry Award 2010 (Restaurants Award) to apply to casual employees where they have worked in excess of 38 hours per week or 10 hours per day – United Voice also advanced a further claim that the minimum daily engagement period for casual employees in each of the 3 hospitality awards should be increased from 2 hours to 3 hours, and that the daily maximum ordinary hours for full-time and part-time employees under each award should be equalised at 10 hours – evidence demonstrated that the current part-time provision in the Hospitality Award was close to being a dead letter because it did not provide a workable model for the regulation of part-time employment in the sector covered by that award – the Full Bench reached the same conclusion about the current part-time provision in the Clubs Award – clear that greater flexibility in the rostering of hours is necessary for the part-time provisions in these 2 awards to become relevant – the Full Bench propose to vary the 2 awards to provide for part-time employment provisions which allow the employer greater flexibility in the rostering of the working hours of part-time employees, but require working hours to be allocated only in the periods which the employee had indicated he or she is available to work – provisional view that there was a strong basis for the parttime employment clause in the Restaurants Award to be altered in the same way as for the Hospitality Award and the Clubs Award – interested parties invited to make further submissions and, if necessary, adduce evidence in relation to this proposition – in relation to United Voice’s overtime claim, the Full Bench was satisfied that a fair and relevant minimum safety net for casual employees covered by the 3 awards requires that casual employees receive the benefit of overtime penalty rates for all time worked in excess of 12 hours in a day or 38 hours per week – SCHCDSI Award and Aged Care Award – Australian Business Industrial, the New South Wales Business Chamber and Jobs Australia sought that the current part-time employment provision in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award) be varied to allow greater flexibility in the way in which the hours of work for part-time employees were fixed – claim was primarily advanced in the context of the development and implementation by the Australian Government of the National Disability Insurance Scheme (NDIS) – Full Bench not satisfied at this time that the new part-time employment provision proposed by employer organisations for the SCHCDSI Award was necessary to achieve the modern awards objective – held that the current provision as applied in practice were reasonably flexible – the conclusions reached are made at a time when the NDIS is still a long way from full implementation – issues raised by the claim may require further review if, after the NDIS has been fully implemented, a different picture emerges – Retail, Fast Food and Hair and Beauty Awards – the Shop, Distributive and Allied Employees’ Association (SDA) sought variations to the General Retail Industry Award 2010 (Retail Award), the Fast Food Industry Award 2010 (Fast Food Award), and the Hair and Beauty Industry Award 2010 (Hair and Beauty Award) to apply overtime penalty rates to casual employees who work in excess of ordinary hours in a day or a week – the Ai Group also sought that the Fast Food Award be varied to allow an employer and a casual employee to agree to a daily engagement of less than the minimum of 3 hours currently required – the Full Bench concluded that it was necessary to vary the awards to provide for overtime penalty rates to apply to casuals in order to meet the modern awards objective – the proposed Ai Group variation was rejected – Horticulture, Pastoral and Wine Industry Awards – the AWU advanced a claim to vary the Horticulture Award 2010 (Horticulture Award) to ‘clarify’ that casuals employees under the award were entitled to overtime penalty rates – necessary to achieve the modern awards objective of a fair and relevant safety net for a modern award which prescribes overtime penalty rates for weekly employees to also prescribe them to casual employees – the Full Bench considered that the ordinary hours of casual employees should be no more than 12 hours per day, and that overtime penalty rates should be payable for work performed in excess of 12 hours – the National Farmers’ Federation (NFF) sought a variation to the Pastoral Award 2010 to reduce the minimum period of engagement from 3 hours to 2 hours for part-time and casual dairy operators – the Full Bench were not satisfied that it was necessary to reduce the minimum engagement period for casual and part-time dairy operators however the NFF’s evidence did demonstrate that the 3 hour minimum engagement period might inhibit the employment of school students – the Full Bench will therefore reduce the minimum engagement period to 2 hours for junior employees who are school students – the South Australian Wine Industry Association (SAWIA) sought a variation to the Wine Industry Award 2010 to reduce the minimum period of engagement of casual employees from 4 to 2 hours of work – evidence advanced identified the problem that unexpected weather events could cause the abandonment of grape pruning and harvesting work well before 4 hours’ work had been completed and this meant that winery operators could become cautious about when to call in their casual workforce to carry out pruning or harvesting work – the Full Bench considered that the identified problem should be resolved by a reduction to the minimum engagement period from 4 hours to 2 hours in circumstances where a weather event not expected at the start of a pruning or harvesting shift prevents the completion of 4 hours’ work – Road Transport Awards – the Australian Public Transport Industrial Association (APTIA) sought a modification of the 2 hour minimum engagement period for the transportation of school children in the Passenger Vehicle Transportation Award 2010 (Bus Award) so that the employer and employee could agree upon a lesser period of engagement in specified circumstances – the APTIA claim was rejected – the Transport Workers’ Union of Australia (TWU) also sought a variation to clarify that the existing provision required a minimum payment of 2 hours’ pay for each separate engagement in a day – the Full Bench considered that a modified version of the variation sought by the TWU would resolve any interpretational issue – the Ai Group made a claim to introduce a provision in the Road Transport (Long Distance Operations) Award 2010 (Long Distance Award) to enable employees to be employed on a part-time basis – the Full Bench accepted that there may be limited opportunities for the introduction of part-time employment in the long distance sector – such part-time work opportunities may be attractive to older drivers who wish to wind down the amount of driving hours they perform in a week, or to potential drivers who wish to work for only a few days in the week because they have other family, employment or study commitments – while the demand for such work is likely to be limited, the Full Bench saw no reason in principle why it should not be facilitated by an appropriate parttime employment provision being placed in the Long Distance Award – Building and Construction Awards – a significant issue had arisen concerning the calculation of the quantum of the casual hourly rate in the Building and Construction General On-site Award 2010 (Building Award) – the controversy was whether the casual loading should be calculated by reference to the hourly rate payable to Daily Hire employees (which includes a ‘follow the job’ loading) or by reference to the hourly rate payable to Weekly Hire employees (that does not include the ‘follow the job’ loading) – proposals to resolve this issue were advanced by the Master Builders’ Association (MBA), the Housing Industry Association (HIA) and the Construction, Forestry, Mining and Energy Union (CFMEU) – the Full Bench accepted that the Building Award did not state with clarity the method by which casual hourly rates were to be calculated – considered that the issue concerning the calculation of the casual hourly rate should be resolved in accordance with the approach proposed by the MBA – as another Full Bench is dealing with a range of substantive issues concerning the Building Award the Full Bench will defer from making a final variation to the Building Award until that issue has been finalised – the Joinery and Building Trades Award 2010 (Joinery Award) provided for a minimum daily engagement period of 7.6 hours – the HIA, the MBA and the Ai Group have all proposed that the minimum engagement period be reduced to 4 hours – no evidence that the current provision was not meeting the modern awards objective – the claim was rejected – Black Coal Mining Industry Award – the Ai Group proposed as a matter of principle that the Black Coal Mining Industry Award 2010 (Black Coal Award) be varied to remove a current restriction upon the employment of casuals other than in staff classifications, so that casuals might be engaged across all classifications of the award, including production and engineering classifications – the Full Bench could not be satisfied that simply introducing casual employment on an across-the-board basis without any restrictions or qualifications to address the safety-critical nature of the industry and the current prevalence of full-time employment would be consistent with the objective – the Ai Group application was rejected – the Full Bench invited employers in the industry to make a further application and mount a case supported by industry evidence to address the identified issues – Rail Industry Award – the Rail, Tram and Bus Union (RTBU) sought a variation to the Rail Industry Award 2010 (Rail Industry Award) to clarify that the casual loading of 25% be paid when overtime and penalty rates were also applicable – the award variations proposed by the RTBU and the rail employers involved the casual loading and the penalty rates being separately calculated by reference to, and then separately added to, the base ordinary rate – the Full Bench considered that this was the correct approach and the Rail Industry Award should be varied on that basis – Legal Services Award – a group of 21 law firms (Law Firms) sought a variation to the Legal Services Award 2010 (Legal Services Award) to reduce the minimum daily payment for casual employees from 4 hours to 3 hours – the Full Bench was not satisfied that the existing 4 hour minimum casual engagement was inconsistent with the achievement of the modern awards objective – the Law Firms’ proposal was rejected – next steps – the Full Bench made directions regarding the resolution of claims in relation to these matters – the directions can be found in chapter 13 of the decision. 4 yearly review of modern awards – Casual employment and Part-time employment
July 14, 2017
RIGHT OF ENTRY – misuse of system – ss.480, 505, 508 Fair Work Act 2009 – on 24 December 2015, the Commission made findings (the First Decision) in relation to an application by the applicant under s.508 of the FW Act that certain CFMEU officials had misused their rights of entry [[2015] FWC 6889] – on 7 March 2016, the Commission issued a Decision (the Second Decision) in relation to the s.508 application in which the Commission held that it was appropriate to suspend and, in some instances, revoke the entry permits of certain CFMEU officials [[2016] FWC 811] – Orders giving effect to the Second Decision were issued on 16 March 2016 – the Orders prescribed time periods in which certain CFMEU officials were banned from being issued entry permits – CFMEU lodged an appeal against the Second Decision and sought a stay of several of the Orders in the Second Decision – on 18 March 2016, a stay of the Orders (excluding the Orders made in relation to Mr Kera and Mr Parker) and the Second Decision was granted [[2016] FWC 1692], the First Decision was not affected by the stay order and was not challenged on appeal – on 27 May 2016, a Full Bench heard the appeal and issued a Decision in which the Full Bench upheld the appeal, quashed the Second Decision (save for the part which affected Mr Kera and Mr Parker) and quashed Orders of 16 March 2016 [[2016] FWCFB 3241] – the matter and question of what orders, if any, should be made arising from the First Decision, excluding the question of whether orders should be made against the CFMEU, was referred to the Commission for a full rehearing – Commission heard the matter on 27 March 2017 and reserved decision – consideration of the unusual nature of this matter due to the applicant’s previous application to join its proceedings with those involving Lendlease and the CFMEU, this application was refused – consideration also to the extensive amount of time which had lapsed in relation to the matter between the applicant and the CFMEU without final determination – consideration of discretion afforded by s.508 of the FW Act in determining what, if any, restrictions were to be imposed – Commission not satisfied that the Orders now sought by the applicant achieve the object of Part 3-4 outlined in s.480 – the dispute between Lendlease and the CFMEU has been resolved; there was no evidence of any ongoing issues on those sites; and the Order had been extended by consent on numerous occasions – Order imposed on 18 February 2015 has been implemented effectively, and that Order operated as an effective deterrent – there has been compliance by the CFMEU and the respondents with that Order of 18 February 2015, therefore difficult to see the justification in granting the Orders now sought by the applicant – held a finding of misuse of entry rights does not, as a matter of course, lead to the conclusion that there must be restrictions imposed on rights of entry – there had been no contravention of the Order made under s.505 and the general compliance by the CFMEU and the respondents – not satisfied that the Orders now sought by the applicant achieve the object of Part 3-4 outlined in s.480 – Commission held that the proposed Order proffered by the CFMEU entitled ‘Order under s.508 applying in Victoria and Queensland’, with the conceded amendments should be issued as a draft Order and the parties will be required to make further submissions – Commission held this draft Order recognises the findings of misuse and is appropriate having regard to the nature of those misuses, as noted in Fair Work Commission – as such, the Commission was satisfied this draft Order achieved the object of Part 3-4 pursuant to s.480 – a draft Order to this effect and directions requiring submissions will be issued in accordance with this Decision. Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union and Ors
July 14, 2017
CONDITIONS OF EMPLOYMENT – wages – equal remuneration order – s.302 Fair Work Act 2009 – Full Bench – application by United Voice and the Australian Education Union (the Unions) for an equal remuneration order pursuant to s.302(3)(b) of the Fair Work Act 2009 (FW Act) in relation to the children’s services and early childhood education industry – separate application then made by the Independent Education Union of Australia (the IEU) – application heard concurrently and referred to as Equal Remuneration Case – the Unions sought equal remuneration order for ‘… employees who perform work in a long day care centre or preschool(s)’ covered by the Children’s Services Award 2010 (Children’s Services Award); the Educational Services (Teachers) Award 2010; or the Educational Services (Schools) General Staff Award 2010 – the IEU sought an equal remuneration order for ‘early childhood teachers (including early childhood teachers appointed as directors) who perform work in a long day care centre or preschool covered by the Educational Services (Teachers) Awards 2010′, other than those employed by a state or territory government – current Full Bench decision concerned the Unions’ application – previous decision issued by Full Bench [[2015] FWCFB 8200] (Preliminary Decision) addressed preliminary issues, including the jurisdictional prerequisites to be met prior to the making of an equal remuneration order – in relation to the question of whether a male comparator group was required in order to establish a case for an equal remuneration order under s.302, Preliminary Decision found that Commission must be satisfied that an employee or group of employees of a particular gender to whom an equal remuneration order would apply do not enjoy remuneration equal to that of another employee or group of employees of the opposite gender who perform work of equal or comparable value – comparative exercise in which the remuneration and the value of the work of a female employee or group of female employees is required to be compared to that of a male employee or group of male employees – Preliminary Decision held that the finding that Part 2-7 requires a comparator group of the opposite gender did not exclude the capacity to advance a gender-based undervaluation case under s.156(3) or s.157(2) of FW Act – Union’s third amended application filed in September 2016 included that proper comparator for the Diploma level and Certificate III classifications under the Children Services Award are the C5 and C10 classifications respectively in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), with consequential adjustment for other classifications – addition of a comparator intended to permit the application to continue to be maintained under s.302 of the FW Act – in accompanying correspondence the Unions sought a hearing to determine a preliminary question as to whether the comparator proposed in the amended application satisfied requirement of a comparator in the Preliminary Decision – proposed preliminary question be whether the C5 and C10 classifications under the Manufacturing Award are a suitable comparator in this application for the purposes of s.302 of the FW Act – current Full Bench decision concerned whether the Commission should conduct preliminary hearing proposed by the Unions – the Unions submitted proposed comparators were established as appropriate in a previous AIRC Full Bench decision AIRC [PR954938] (2014 AIRC Decision) – in current proceedings Full Bench found comparative exercise to be carried out between the group of employees to be covered by the proposed order and an identified comparator group has three elements – firstly, the two groups must perform work of equal or comparable value – secondly, must be of the opposite gender – thirdly, must be unequally remunerated – once this jurisdictional prerequisite demonstrated, the Commission has discretion as to whether to make an equal remuneration order – Full Bench found posed preliminary question would not dispose of the entirety of the jurisdictional prerequisite for the making of an equal remuneration order, but only the first of the three elements identified – noted the Unions had made it clear that their case is that the 2004 AIRC Decision, and the alignment of rates in the comparator classifications since that decision, are sufficient to demonstrate equality or comparability in work value between those who would be covered by the equal remuneration order it seeks and its proposed comparator group – found it would be open for any employer respondent to the proceedings to adduce evidence to demonstrate that in fact no equality or comparability in work value and that either the 2004 AIRC Decision was wrong and should not be followed, or that changes to work since that time have meant that the 2014 AIRC Decision can no longer be relied upon – noted such evidence could well be extensive and necessity to hear such evidence would be sufficient to remove any procedural value in conducting such preliminary hearing – Full Bench considered that a preliminary hearing could only be justifiable in procedural terms if it were confined to question of whether the 2004 AIRC Decision, and subsequent alignment in rates, capable alone of conclusively demonstrating equality or comparability of work value (and, as a corollary, that no evidence that might conceivably be adduced by any party could demonstrate otherwise) – Full Bench proposed preliminary question be whether the Commission can be satisfied conclusively that the work performed by employees under C5 and C10 classifications in the Manufacturing Award is of equal or comparable value to the work of employees under the Diploma Level and Certificate III classifications in the Children’s Services Award respectively solely on the basis of the 2014 AIRC Decision and the subsequent alignment in award rates for the respective classifications – Full Bench rejected proposition of separate hearing to determine the Union’s proposed preliminary question – prepared to conduct such a hearing on the basis of Full Bench’s proposed question (subject to any parties’ agreed changes) – necessary for Unions to accept that the necessary consequence of a negative answer to the proposed question would be the dismissal of their application – if response affirmative, directions hearing to be listed regarding preliminary hearing – if answer negative, Full Bench to await further advice from the Unions as to how they wish to proceed with application – Full Bench to await advice from the IEU as to how it wishes to proceed with its application. Application by United Voice, Australian Education Union and Independent Education Union of Australia for an Equal Remuneration Order
July 14, 2017
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – s.394 Fair Work Act 2009 – applicant employed from 6 August 2007 and summarily dismissed on 15 July 2016 – respondent purports binding settlement agreement made during member assisted conference on 6 February 2017 – settlement of $18,000 gross to be paid to applicant, termination would be treated as resignation, applicant would be provided with a statement of service and application would be discontinued – applicant disputes agreement was reached – applicant representative considered agreement had been reached and ceased acting for applicant from 8 February 2017 – issue with whether applicant instructed representatives for purported settlement amount and whether representatives made offers to respondent per applicant’s instructions – ss.399A, 587 FW Act considered – Commission cannot be satisfied that a settlement agreement has been concluded – cannot be satisfied steps have been taken to give effect to promissory terms of the agreement – legislative test under s.339A(1)(c) not met – Commission satisfied applicant’s representative received instructions to make an offer of $18,000 – satisfied applicant did not inform her representatives that she was without capacity to provide instructions – not satisfied settlement agreement was concluded and declined to dismiss application pursuant to s.399A(1)(c) – satisfied no deviation from principles in Thomas v Symbion Health – satisfied application to dismiss has no reasonable prospects of success because parties have entered into a settlement agreement – in accordance with agreement, payment of $18,000 gross less relevant taxation to applicant within 7 days – application to dismiss application for unfair dismissal dismissed. Gill v Rio Tinto Aluminium Limited t/a Rio Tinto Weipa
July 14, 2017
TERMINATION OF EMPLOYMENT – remedy – compensation – ss.390, 392, 394 Fair Work Act 2009 – decision issued 31 May 2016 found termination of applicant to be harsh, unjust and unreasonable [[2016] FWC 3542] – directions issued to each party for submissions on appropriate remedy – on 17 October 2016 Commission checked ASIC liquidation notices database and found Ashford Homes was being wound up voluntarily – ss.440D, 471B, 500 Corporations Act 2001 (Cth) considered – applicant sought compensation up to statutory cap – respondent submitted compensation manifestly unfair due to applicant’s misuse and over spending of company supplied fuel card – applicant employed with respondent for four years and two months – Commission determined total period applicant would have received remuneration had he not been dismissed to be 12 weeks – determined applicant would have received $31,035.25 – Commission satisfied applicant attempted to mitigate loss from date of dismissal – determined compensation would need to put applicant back in financial position he would have been in had he not been dismissed – amount to include applicable superannuation with appropriate tax deduction – compensation of $31,035.25 including applicable superannuation with appropriate tax deduction to be paid within 30 days of decision. Bechara v Ashford Homes P/L t/a Ashford Homes
