MODERN AWARDS – 4 yearly review – ss.156, 608 Fair Work Act 2009 – this matter concerned claim by the Australian Council of Trade Unions (ACTU) for paid family and domestic violence leave clause to be inserted into every modern award – background to immediate issue in this matter, the ‘constitution issue’, was set out in a Decision of 18 May 2017 [[2017] FWC 2752] and Statement of 23 June 2017 [[2017] FWC 3389] – questions of law were related to Federal Court of Australia pursuant to s.608 of FW Act with intention that answers to these questions would dispose of the constitution issue and provide certainty in the final disposition of matter – Federal Court indicated that the framing of the special case raised ‘complex questions’ – Federal Court suggested, as one simpler alternative to pursuing the special case, that the sorts of questions that were raised in the special case could be brought to the Court if the President was to make a decision on the constitution issue and a dissatisfied party affected by that decision then chose to bring an application for judicial review – Commission discontinued the special case, subject to Court granting leave, and decide the constitution issue – will then be open to a dissatisfied party to bring application for judicial review of any decision – the present circumstances were unprecedented – President did not propose to exercise any powers to reconstitute Full Bench – of the view the FW Act permits Deputy President Gooley and Commissioner Spencer to hand down their decision(s) so as to complete decision-making process of original Full Bench – President will request Senior Deputy President Gooley and Commissioner Spencer to hand down their decision(s) in the matter as soon as possible – those decisions, taken together with decision of former Vice President Watson, will together comprise the Full Bench decision in matter AM2015/1. 4 yearly review of modern awards-Family & Domestic Violence Leave Clause
July 7, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – in decision issued on 16 August 2016 [[2016] FWCFB 4418] the Full Bench raised issue of a lack of alignment in relativities between full-time rates for driveway attendants, roadhouse attendants and console operators and casual rates for these classifications – parties were provided with opportunity to consider their positions in relation to this issue and to provide further submissions – further discussions were held and agreement had been reached in relation to casual console operator rates – parties agreed that, in relation to classification of casual console operator, rates should be adjusted in line with relativities identified in earlier Full Bench decision – Full Bench satisfied that variation proposed by parties should be adopted – variation will take effect on 1 July 2017 – position of Level 2 rates for casual roadhouse attendants remains to be resolved. Vehicle Manufacturing, Repair, Services and Retail Award 2010
July 7, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.385, 386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed for 20 years – extension of time granted – not resolved by conciliation – both parties represented by counsel – whether or not the applicant was dismissed – whether dismissal was fair – applicant was a protected person – whether applicant forced to resign by conduct of employer – formal disciplinary meeting held regarding customer complaint – union support person attended meeting to assist applicant – support person recommended by employer – applicant was on final warning concerning customer service standards – store manager to make decision on future actions – applicant was provided opportunity to respond to complaint – employer considered matters raised by applicant and support person – manager told support person there was ‘only a couple of options’ – support person advised applicant to resign as she was going to be dismissed – employer conduct did not suggest a decision was made to terminate applicant – applicant resigned in meeting – manager asked multiple times whether applicant understood resignation and whether she wished to resign – support person not called to give evidence – Commission satisfied applicant able to comprehend resignation – applicant not forced to resign – application dismissed. Price v Coles Supermarkets t/a Coles
July 7, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – the applicant was the principal of a school – the applicant was dismissed after tensions arose in the relationship between staff and the applicant – one staff member resigned, and another was dismissed by the applicant – the Commission found that the effect of these two staff movements were incendiary – after the school’s Committee of Management (the Committee) met a number of times it resolved to terminate the applicant’s employment due to underperformance – the Commission found that the applicant was unfairly dismissed for a number of reasons – firstly her dismissal was unjust in that it was made without her having an opportunity to meaningfully respond to the proposition put to her by the Committee that her employment was no longer tenable – secondly the dismissal was unreasonable in that the Committee gave information to the school community that should have remained private – thirdly the dismissal was unreasonable in that the Committee made allegations to the applicant, said to be valid reasons for termination, which in all the circumstances were capricious or spiteful and which in any event were unfounded – fourthly, the dismissal was unreasonable in that the conduct of the Committee, after receiving the applicant’s response, was allowed to sit unattended to over the Christmas and New Year period with no information being given to the applicant as to why the Committee had delayed its decision or how long its decision would be delayed – inappropriate to reinstate the applicant – Commission held that compensation was appropriate however found that the post-termination payments made to the applicant exceeded the compensation that the Commission would have assessed – as such, no compensation was ordered. Martin v Beechworth Montessori Children’s Group Incorporated t/a Beechworth Montessori School
July 7, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – whether applicant’s termination of employment constituted a genuine redundancy – applicant employed as a hairdresser – dispute as to date upon which applicant’s employment was terminated – applicant submitted termination occurred during a telephone conversation on 4 January 2017 – respondent contended telephone conversation was a discussion about the future of the applicant’s employment and the respondent’s financial position – respondent submitted that termination occurred on 20 January 2017 as consistent with its second termination of employment letter – applicant submitted that termination occurred as a result of her having raised repeated concerns about underpayment of wages – respondent submitted it no longer required applicant’s job to be performed due to changes in the business’ operational requirements – evidence that respondent was strongly advised by its bookkeeper that significant cost-cutting was required due to its poor financial position – this included the respondent changing premises and reducing staff to reduce expenditure – respondent submitted it complied with employer obligations contained in the modern award to consult, notify, discuss and consider averting or mitigating actions with affected employees about major changes that are likely to have significant effects on them (which included termination of employment) – Commission found consultation and discussion obligations were satisfied by way of the 4 January 2017 telephone conversation and that the applicant had sufficient opportunity to raise averting or mitigating measures following the content of the first termination letter – Commission found that there was no reasonable redeployment opportunity available for the applicant – Commission held that applicant’s dismissal was a case of genuine redundancy – applicant had not been unfairly dismissed – application dismissed. Brown v The Hair Room Lancefield
July 6, 2017
Twenty-one unfair dismissal/labour dispute applications will be heard today by the Fair Work Commission. The full list is: Rafic Pty Ltd (Essey), Wilson Services Company Pty Ltd (Marshall), Robot Coupe Australia (Paige), Hardman Chemicals Pty Ltd (Prasad), Regional Express Holdings Ltd (O’Halloran), Qube Logistics (SA) Pty Ltd (McIntyre), FSA Group Services Pty Ltd (Reynolds), Bupa Aged Care (Barker), Desago Real Estate Pty Ltd (Stevenson), Water Corporation (Batchem), Metro Tasmania Pty Ltd (Godfrey), Victoria University (Lawrence), Victoria Police (Brierley, Chuck), Professional Caliber Security (McInerney), Go To Court Franchising Pty Ltd (Lewis), Barada Barna Aboriginal Corporation (Dargan, Roos), Broadspectrum (Australia) Pty Ltd (Timms), BD Farm Paris Creek Pty Ltd (Johnson).
July 5, 2017
The Fair Work Commission has eighteen unfair dismissal/labour dispute applications to be heard today. The full list is: Australian Criminal Intelligence Commission (Demos), Holcim (Australia) Pty Ltd (Harland), Suncorp Group (Miles), Mission Australia (Lee), Ensign Drilling Australia (Markham), Star Track Express Pty Ltd (Williams), Challenge North Shore, Precision Assembly (Bakri), Haemonetics Australia Pty Ltd (Pham), Sodexo Australia Pty Ltd (Hallam), Tri-Asset Pty Ltd (Seamer), Gippsland Water (Pendergast), Dematic Pty Ltd (Grech), Launch Housing Limited (Skiba), Quattro Group (MacGowan), Safe Places For Children Pty Limited (Charles), Go To Court Franchising Pty Ltd (Lewis), Logan City Electrical Service Division Pty Ltd (Antonarakis).
July 4, 2017
Fair Work Commissioners have twenty-two unfair dismissal/labour dispute applications to hear today. The full list is: Buchfelde Corp P/L atf Buchfelde Trust & Tobaskah Corp P/L atf Tobaska Trust T/A Adelaide Road Dental Practice (Pascoe), Peregrine Corporation (Murray), Watervalley Pty Limited (Sutton), Spotless Services Pty Ltd (Savoia), Chubb Fire & Security Pty Ltd (Lloyd), National Solutions Group (Andrews), Shailer Transport Pty Ltd (Kerr), Roman Catholic Trust Corporation for the Diocese of Townsville (Muhling), JBS Primo Queensland (McCormack), Northern Stevedoring Services (NSS) (Neliman), DBS Partners Pty Ltd (Wilson), Business Risks International (Victoria) Pty Ltd (Cessario), Ferngrove Pharmaceuticals Pty Ltd (Ji), Optec Pty Ltd atf Optec Unit Trust (Whelan), Salon Park Pty Ltd (Razumic), Aroona P&T Pty Ltd (Colella), InvoCare Australia Pty Limited (Fitzgerald), Sydney Recycling Services Pty Ltd (Labann), Bauer Kompressoren Australia Pty Ltd (Wan), Western Freight Management Pty Limited (Freeman), Northern Territory Government (Hutchinson), Warrnambool Cheese and Butter Factory company Holdings Limited (Brody).
