TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by respondent, Farstard Shipping for 16 years – applicant responsible for overall management and safe navigation of the vessel – in September 2016 applicant was rostered off but was asked if willing to assist on another vessel to mentor new Master – applicant subject to random alcohol test before attending vessel – applicant failed test – applicant was provided with a show cause letter and following an investigation, was terminated on 15 November 2016 for serious misconduct – applicant submitted that there were factors throughout the course of his employment which led to his drinking that evening – applicant submitted that throughout the course of his employment, he had made significant contributions to improvements in safety performance and demonstrated a willingness to take on additional duties – submitted there were mitigating circumstances which led to his drinking – Commission noted that respondent’s policies did allow for lesser penalties such as education and rehabilitation – Commission satisfied that applicant was provided with a reason for dismissal and given an opportunity to respond prior to the decision being made to dismiss him – Commission noted that applicant has an exemplary record with respondent; however, found that an incident in 2014 was never fully resolved neither in applicant’s mind, nor by respondent – Commission satisfied that although applicant did engage in alleged conduct the decision to dismiss him was harsh – Commission satisfied applicant was unfairly dismissed – respondent opposed reinstatement as it had lost trust and confidence in applicant – Commission satisfied that respondent has grounds to this claim – reinstatement not appropriate – Commission directed parties to file submissions regarding compensation. Rust v Farstad Shipping (Indian Pacific) P/L t/a Farstad
July 14, 2017
ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – application for a protected action ballot order (PABO) – proposed protected action ballot of employees of AB Oxford Cold Storage Company P/L (Oxford) – National Union of Workers (NUW) bound by 2014 Agreement – NUW applied for PABO and Oxford advanced three objections including that NUW has not been and is not genuinely trying to reach agreement and that NUW has extraneous intention in seeking PABO – log of claims and issues discussed at bargaining meetings in dispute – Commission noted that although NUW may not have been actively trying to reach an agreement of late, this does not mean its efforts have not been or are not genuine – found no evidence NUW filed application for extraneous intentions – issue of nonpermitted matters and Esso Australia P/L v AMWU considered – Commission satisfied NUW has been and is genuinely trying to reach agreement with Oxford – restrictions on making an application under ss.437 and 438 not applicable – other statutory criteria have been met – PABO made. National Union of Workers v AB Oxford Cold Storage P/L
July 14, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – 7 December 2012 applicant commenced employment with respondent – applicant submitted he had been unfairly dismissed either because his employment was terminated at the respondent’s initiative or, alternatively, because he was forced to resign following a course of conducted engaged in by the respondent – respondent denied dismissal, submitting that the applicant had voluntarily resigned on 4 November 2016 with an effective termination date of 30 November 2016 – on 24 June 2016 applicant requested a pay rise – respondent rejected the applicant’s request on the grounds that it could not afford the increase sought – in September 2016 the applicant began working after-hours for Xsight, a competitor of the respondent – during a meeting with the respondent on 4 November 2016, the applicant was notified that his engagement by Xsight was considered a breach of contract – applicant submitted that the respondent had previously consented to him working for other businesses to supplement his income, including for Xsight – applicant told that he had a week to decide between ceasing all work for Xsight or resigning his employment with respondent – applicant verbally resigned his employment during the 4 November 2016 meeting – respondent accepted applicant’s resignation and it was agreed that the employment would cease on 30 November 2016 – applicant submitted that from the 6 November 2016 he had tried to inform respondent that he did not intend to resign – respondent submitted that the applicant only sought to withdraw his resignation on 30 November 2016 – applicant informed the respondent that he regarded the editing team’s office relocation as an unfair termination and therefore did attend work – on 13 January 2017 the respondent submitted that the applicant’s failure to attend work was evidence that he abandoned his employment – Commission held that applicant was not dismissed from his employment – Commission neither satisfied that applicant’s employment was terminated on the initiative of respondent nor that applicant was forced to resign because of respondent’s conduct – respondent was under no obligation to grant applicant a pay increase nor was it unreasonable of it to insist that he not carry out work for competitors – Ngo considered – Commission satisfied no special circumstances existed such that respondent’s immediate acceptance of applicant’s resignation was unreasonable – respondent entitled to treat applicant’s resignation as effective – application dismissed. Javed v Proeye Video Productions t/a Proeye Video Productions
July 14, 2017
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 226, 319 Fair Work Act 2009 – Sch. 3, Item 16 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – two employee applications to terminate Wilson Security-Western Australia Collective Agreement (Agreement) – matters adjourned for parties to negotiate new agreement – no progress made – subsequent employer application for Agreement to cover nontransferring employees not currently covered by the Agreement who perform same work as transferring employees – Commission dealt with termination applications before transferring employees application – public interest considerations distinct from interests of those covered by Agreement – Agreement made over seven years ago – industry minimum terms and conditions since changed – many Agreement terms and conditions now below the Security Industry Services Award 2010 (Award), including rates of pay and allowances – employer proposed significant undertakings to address shortcomings of Agreement compared to Award – their employee petition regarding terminating Agreement tainted and communication with employees mischievous – given scope and number of undertakings, acceptance of undertakings undermined s.3(f) of FW Act allowing one party to dictate agreement terms rather than negotiating with other parties – commercial advantage obtained from Agreement disincentive to negotiating new enterprise agreement – termination of Agreement likely to stimulate negotiations for a new agreement more suitable to employers business needs while ensuring objects of the FW Act regarding minimum terms and conditions of employment are satisfied – in public interest to terminate Agreement – Commission not satisfied views of employer and employees opposed to terminating Agreement were accurately informed and/or validly held – termination effective from 7 July 2017 – employer application for Agreement to cover non-transferring employees dismissed. Wilson Security-Western Australia Collective Agreement 2009
July 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – This decision should be read in conjunction with the decision of Vice President Watson issued on 27 February 2017 [[2017] FWCFB 1133] – the Australian Council of Trade Unions (ACTU) made a claim to include in all modern awards an entitlement for employees to take family and domestic violence leave – effect of the ACTU’s claim would be to provide all employees with a right to ten days paid family and domestic violence leave per year which does not accumulate and, if the leave is exhausted, up to two days of unpaid family and domestic violence leave on each occasion – whether it was necessary, for the purpose of ensuring that modern awards, together with the NES, provide a fair and relevant minimum safety net to include an entitlement for employees to take family and domestic violence leave – Full Bench have formed the preliminary view that it was necessary to make provision for family and domestic violence leave however have decided to dismiss the ACTU’s application because the Full Bench was not satisfied, at this time, that it was necessary to provide ten days paid family and domestic violence leave to all employees covered by modern awards – in rejecting the ACTU’s proposal the Full Bench have not rejected the view that family and domestic violence is a significant community issue, and that there needs to be a workplace response to family and domestic violence – Full Bench has formed the preliminary view that all employees should have access to unpaid family and domestic violence leave – in addition the Full Bench have formed the preliminary view that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave – as the parties have not had an opportunity to make submissions or call evidence on these matters the Full Bench intend to provide the parties with such an opportunity. 4 yearly review of modern awards – Family & Domestic Violence Leave Clause
July 14, 2017
RIGHT OF ENTRY – application for permit – ss.513, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision which found an official not a fit and proper person to hold an entry permit – at first instance Commission not satisfied applicant would perform role as permit holder in a way that respects obligations of role – nor satisfied any conditions could be imposed in accordance with s.515(1) of FW Act would alter that assessment – appellant asserted the Commission, in relying on findings of earlier Lendlease matter, conflated jurisdictional fact as actual fact, leading to inappropriate conclusion the official had been involved in organising unprotected industrial action – clearly apparent to Full Bench the Commission did not rely solely on findings in Lendlease and provided reasons beyond Lendlease, including reference to the conduct of Mr Robinson in Bechtel and Robinson – Full Bench not satisfied the Commission erred and not satisfied that there was an arguable case of error in this instance – Full Bench not satisfied of any issues which attract the public interest – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional
July 14, 2017
ENTERPRISE AGREEMENTS – genuinely agree – ss.185, 186, 604 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance dismissed application for approval of BGC Contracting P/L’s Mining Enterprise Agreement 2016 (the proposed agreement) – Commission held the proposed agreement was not genuinely agreed to by the employees who would be covered – not satisfied appellant took all reasonable steps to comply with its relevant access period obligations or that the effect of the proposed agreement was explained to employees – appellant submitted permission to appeal should be granted; appeal should be upheld and the first instance decision quashed – a number of grounds of appeal related to procedural fairness and that the various sections of the legislation were not correctly applied nor construed when dismissing the proposed agreement application – appellant asserted amongst other issues that it was not afforded the opportunity to provide undertakings to rectify the BOOT findings despite the parties express contemplation to do so – respondent posited the Commission’s first instance conclusion that the proposed agreement had not been genuinely agreed to was ineluctable – Full Bench held that appellant was denied procedural fairness because the appellant was not provided an opportunity to file further submissions in relation to undertakings after the first instance decision – not satisfied the employees had no stake in the proposed agreement – permission to appeal granted – in order to overcome the denial of procedural fairness appeal upheld – decision at first instance quashed – referred to Gostencnik DP for rehearing. Appeal by BGC Contracting P/L against decision of Deputy President Binet of 28 February 2017 [2017] FWC 852 Re: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors
July 14, 2017
CASE PROCEDURES – representation – ss.400, 596, 604 Fair Work Act 2009 – permission to appeal – Full Bench – applicant in unfair dismissal matter sought permission to appeal against Commission decision – submitted the Commission erred in finding the respondent was not a separate entity to the Commonwealth – erred in granting respondent permission to be represented by the Australian Government Solicitor (AGS) as relevant legislative and regulative exception was not applicable – erred in amending the respondent’s identification in the application – respondent agreed with the appellant that permission to appeal should be granted because the appeal raised an issue of broad application when AGS represents a federal department in any Commission proceeding – respondent maintained the proper respondent was the Commonwealth of Australia; its representatives were employees of the Commonwealth; maintained the exception to be represented plainly applied; and the relevant regulations enabled any APS employee to be authorised by the Agency Head to act as a public sector employee’s employer – Full Bench satisfied it would be in public interest to grant permission to appeal as the broader issue arose in the unfair dismissal appeals proceedings – Full Bench found the Commission was correct in identification of the proper respondent as the Department of Immigration and Border Protection was not itself an entity with legal personality – permission to be represented by AGS not required – permission to appeal granted – appeal dismissed. Appeal by Gibbens against decision of Commissioner Williams of 10 April 2017 [[2017] FWC 1938] Re: Department of Immigration and Border Protection
