The Fair Work Commissioners will hear 24 unfair dismissal/labour dispute applications today. The full list is: Novotel Cairns Resort (Lorrain), Veolia Environmental Services Australia (Brown), Liquid Operations Pty Ltd (Butler), Seawalker @ Green Island Pty Ltd (Sumi), Go To Court Franchising Pty Ltd (Lewis), Ventura Bus Lines (Li), Australia Post Pty Ltd (Giannetti), Friends Resilience Pty Ltd (Baskin), City of Busselton (O’Dwyer), Agia Projects (Magee), Albion Park Bowling and Recreation Club Limited (Aitken), Broadbeach Services (Saville), Bill Buckle Autos Pty Ltd (Deak), Surfers Paradise Convenience Store (Abu AlGhanam), Solene Investments (Aus) Pty Ltd (Diaz), Assignments on Contract Int Pty Ltd (Isakidis), United Maritime Australia Pty Ltd (D’Alessandro, King, Overton, Pey, Tonkin, Vickers), National Prescribing Service (McAllan), BB Retail Capital Pty Ltd & Frzop and Another (Miller).
June 30, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – on 23 February 2017 the Commission issued a decision dealing with the weekend and public holiday penalty rates, and some related matters, in a number of awards in the Hospitality and Retail sectors (the Penalty Rates decision) [[2017] FWCFB 1001] – on 5 June 2017 the Commission issued the Penalty Rates – Transitional Arrangements decision [[2017] FWCFB 3001] which dealt with the implementation of the Penalty Rates decision including the determination of various transitional arrangements – draft variation determinations in respect of the Sunday penalty rate provisions in the Fast Food, Hospitality, Restaurant, Retail and Pharmacy Awards were published for comment on 7 June 2017 – submissions were received from the Australian Retailers Association, National Retail Association and Master Grocers Australia (the Retail Associations), Australian Industry Group (Ai Group), the Shop, Distributive and Allied Employees Association (SDA) and an organisation called WorkSight P/L – the expressions used in the draft determinations were consistent with the approach adopted by the Commission in the course of reviewing modern awards as part of the 4 yearly review (the Review) – the review of each modern award involves the publication of an exposure draft which reformats the award to make it simpler and easier to understand and incorporates consistent expressions – given the different stages of completion of the plain language re-drafting processes we have decided that the current form of the penalty rates provisions will be retained for the purpose of finalising these determinations – however, the drafting of these clauses will be revisited during the course of the Plain Language Project – one further matter in contention, is the application of the Penalty Rates decision to trainees employed under the terms of the Fast Food Award – employers are obliged to classify all employees covered by the award (including trainees) as either a level 1, level 2 or level 3 Fast Food Employee – Full Bench did not propose to vary the draft determination to make express reference to trainees – any interested party wishing to pursue this issue should file an application to vary the Fast Food Award so that the matter may be fully considered – there is a final matter, in relation to the Pharmacy Award – Sunday penalty rates under the Pharmacy Award are to be reduced for ordinary hours worked between 7.00 am and 9.00 pm on a Sunday – the Penalty Rates decision stated that penalty rates for work before 7.00 am and after 9.00 pm on a Sunday will be the subject of further proceedings and accordingly the existing rates remain in force for hours worked during those hours – final determinations to come into operation on 1 July 2017. 4 yearly review of modern awards – Penalty Rates – Transitional Arrangements
June 30, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under BMA Daunia Mine Enterprise Agreement 2014 (the Agreement) – dispute concerns proper construction of clause 21 of Agreement – whether employee has right under clause 21.1 to be represented by any person including full time official of the CFMEU for the purposes of the Procedure at any stage – respondent submitted interpretation only allows for representation from fellow employee during initial stages prior to being referred to Commission as opposed to a union – applicant submitted Agreement is not ambiguous – Agreement refers to both representatives and employee representatives throughout – given clause 21.1 only discusses representative this indicates it was not intended to be limited to employee representatives otherwise alternative terminology would have been used – respondent submitted clause 21.1 is ambiguous and thus regard should be had to the context and purpose of clause as well as document as a whole, other associated documents and legislative background – respondent submitted wide interpretation would open floodgates and allow potentially unlimited representation which would cause significant disruption should respondent be required to induct a wide range of persons seeking entry to the Mine as well as create absurdity and significantly hinder respondents ability to resolve disputes – whereas applicant submitted that meetings could continue to be held at offices in Murrumba and Mackay to continue to limit disruption – respondent submitted reading Agreement as a whole namely clauses 21.1 and 27 which discuss representatives and employee representatives demonstrates it was contemplated by the parties that a representative of an employee for the purpose of clause 21.1 would be a person employed by the respondent – respondent also submitted several subclauses of clause 21 could not operate if representative was interpreted to include non-employee representatives – Golden Cockerel considered – Commission not satisfied Golden Cockerel is a series of steps that must be followed nor an exhaustive code of principles but a collection of authorities on interpretation of industrial instruments which distil into a number of major points relevant to such a task – Commission not satisfied if language in Agreement has clear meaning that context cannot be considered – Commission satisfied plain reading of clause 21.1 of Agreement suggests employees in disputes with respondent regarding application of Agreement or NES are entitled to be represented by a person of their choice without restriction – contextual matters considered – Commission noted references in clauses 21.1 and 21.7 to employees being able to nominate a representative of their choice to represent them at any stage of the Procedure but found changes in terminology from employer, employee or a representative of the employee in the early stages to ‘parties’ or a ‘party’ when dispute is referred to the Commission create a clear distinction with respect to the interpretation of representative – Commission considered that to find that any person nominated by an employee can be a representative at the stages of the dispute procedure in clause 21.1 to 21.7, could result in a person with no local connection becoming involved in an issue involving an employee which would be inconsistent with the objective that issues raised by employees are dealt with at a local level to the maximum extent possible – Commission satisfied limiting representative to an employee of the respondent was in keeping with the objective of the clause – Commission satisfied clause 21 and clause 27 should be read in association and that representative and employee representative are the same – Commission satisfied that disputes could not be efficiently resolved if non employees could enter the site for the purpose of representation and the notion of offsite meetings further hindered the efficient resolution of disputes – Commission found Agreement does not extend to having any person they elect as a representative during a dispute and is limited to a representative who is employed by respondent for the stages in sub-clauses 21.1 to 21.7 of the Issue Resolution Procedure in clause 21 of the Agreement. Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v Central Queensland Services P/L
June 30, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed after pre-start meetings held on 28 and 29 January 2017 – Commission found valid reason for dismissal – respondent employer alleged applicant failed to comply with express direction given to him to discuss requirements of Charter and Code with crew of employees he supervised – applicant allowed an employee to address crew at pre-start meeting about an incident in which one employee in crew had allegedly ‘dobbed in’ another employee for sleeping on job at 9am in the morning – applicant failed to properly address conduct of employee at meeting – applicant spoke to the employee who had allegedly ‘dobbed in’ another employee and in doing so breached charter and code – Commission accepted evidence of applicant that did not breach obligations under Code or Charter by making statements that crew members should ‘come to [him] personally’ as was not intention of discouraging employees from raising concerns but rather discouraging them from creating rumours and whingeing amongst themselves – Commission did find that applicant contravene obligations under charter and code by permitting employee to address members of crew regarding ‘dobbing’ incident, particularly in circumstances where applicant knew that employee wanted to give speech about another crew member and applicant had not made any inquiries about the truth of matter – applicant should have pointed out to employee that speech to members of crew was inappropriate and in breach of code and charter – applicant should have obtained further information concerning why employee reported sleeping co-worker before chastising him for doing so – Commission satisfied sound, defensible and well founded reasons to dismiss applicant based on conduct [Selvachandran] – Commission also considered fact applicant was notified of reasons for dismissal and provided opportunity to respond – also considered length of employment history, whether his treatment was consistent with the treatment of other staff, the economic and personal circumstances of the applicant, the gravity of the conduct engaged in and the applicant’s remorse for his actions – Commission found, having regard to totality of conduct on which Mt Arthur relied to dismiss applicant, satisfied in all circumstances that applicant’s dismissal was not disproportionate to gravity of his conduct, nor was it harsh in any other sense – satisfied that respondent’s dismissal of applicant was not harsh, unjust or unreasonable – applicant’s unfair dismissal application dismissed. Crebert v Mt Arthur Coal P/L
June 30, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about negotiating an agreed outcome regarding proposed roster changes in the Department of Immigration and Citizen Enterprise Agreement 2011 to 2014 (the Agreement) – dispute arose following concerns about a proposal by the respondent to introduce a single roster governing all its Brisbane sites, described as a whole of Regional Command roster (WOC roster) – five Brisbane sites were affected – each had its own roster arrangements, differing on the roster period, length of shifts, span of hours, and rate of attendance – one key element of the WOC roster is the attendance rate, the requirement for employees to attend work on a percentage of days in a given period while maintaining the number of hours worked – figure in dispute was 60%, that percentage would mean for some, but not all employees, an increase in the number of days they are required to attend work as ordinary hours – the applicant described the number of days of attendance as the key central driver of the roster pattern – applicant alleged respondent failed to comply with consultation requirements under Agreement, in particular no consultation about 60% figure – issue of proper interpretation of clauses 2.2 and 8.4 of the Agreement – whether respondent met its obligations under the Agreement prior to implementing proposed roster change – whether respondent acted consistently with clause 21.5 of the Shiftwork and Rosters Policy 2015 (Policy) – Commission held clause 2.2 required consultation with employees and their representatives on workplace matters and did not demand agreement but it did require respondent genuinely sought to reach agreement with employees and representatives – found respondent consulted in accordance with Clause 2.2 – Commission held clause 8.4 described employee individual roster arrangements and therefore not relevant to the negation for the WOC roster – held respondent did meet its obligations under the Agreement prior to implementing the proposed roster change – held respondent acted consistently with Clause 21.5 of the Shiftwork and Rosters Policy 2015 – although not part of the questions for arbitration both the applicant and respondent raised issue of Permanent AM roster – if this matter has not been resolved to the parties’ satisfaction then, as part of resolving the dispute, the parties are invited to a further conference with a view to resolving the issues in dispute about the Permanent AM roster. CPSU, the Community and Public Sector Union v Department of Immigration and Border Protection
June 30, 2017
TERMINATION OF EMPLOYMENT – remedy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission required to determine appropriate remedy following respondent conceding that appellant’s termination of employment was harsh, unjust and unreasonable – Commission held at first instance reinstatement was not an appropriate remedy – awarded compensation of $64,655, the maximum amount of compensation permitted to be awarded to the appellant – appellant advanced a number of grounds of appeal, including that it would be in the public interest for the Commission to grant permission to appeal because the Decision undermined the statutory intention to make reinstatement the primary remedy for dismissal, and undermined public confidence in the Commission’s willingness to order reinstatement in appropriate cases – appellant further submitted that the public interest arose in circumstances where the Commission took into account the exercise by him of workplace rights (including taking legal proceedings against his employer) as a matter adverse to the conclusion that reinstatement was appropriate – Full Bench held appellant did not demonstrate an arguable case for appealable error, except in relation to taking into account the proceedings taken by him and others against Asciano, a related entity of the respondent, in the Federal Court – however Full Bench not persuaded that this by itself was sufficient to attract the public interest – Decision at first instance demonstrated the Commission considered there were a range of considerations militating against reinstatement, and it was apparent the Federal Court litigation played only a minor part in the analysis – held the matter turned on its particular facts, and the appeal raised no issue of general importance or legal principle – having regard to the substantial amount of compensation ordered as a remedy Full Bench did not consider the Decision manifested an injustice – held not in the public interest to grant permission to appeal – permission to appeal refused. Appeal by King against decision of Drake SDP of 17 March 2017 [[2017] FWC 1583] Re: Patrick Projects P/L
June 30, 2017
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158 Fair Work (Registered Organisations) Act 2009 – application by Australian Security Industry Association Ltd (ASIAL) for consent to alteration of eligibility rules – applicant association sought consent to change Rule 5.2 ‘Classes of membership’ – effect of application to amend ‘Corporate Membership’ to extend membership to entities substantially engaged in the private security industry or otherwise approved for the purposes of obtaining a security licence under Australian law – to amend ‘Associate Membership’, ‘Individual Membership’ and ‘Affiliate Membership’ to clarify definitions – to amend Rule 5.3 ‘Corporate membership criteria’ to clarify criteria and ensure automatic transition from provisional to full corporate membership on fulfilment of criteria and to clarify voting and office bearing entitlements – original objection by AiGroup withdrawn after lengthy discussions with ASIAL and amendments to the proposed alteration’s wording – Commission satisfied compliance with requirements of RO Act and Regulations – consented to changes to eligibility rules sought by association – change to eligibility rules to take effect from 28 June 2017. Australian Security Industry Association Ltd
June 30, 2017
TERMINATION OF EMPLOYMENT – incapacity – ss.385, 387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as daily hire meat processor – dismissed by letter on 27 January 2017 – reason for termination – excessive absence from the workplace – respondent submitted absence no longer a temporary absence – applicant unfit for work from 7 October 2016 because of non-work related illness – respondent provided with medical certificates which established applicant unfit for work from 3 January 2017 to 3 April 2017 – respondent inquired about applicant’s capacity as it was considering termination – applicant provided a show cause response establishing intention to return to work from 4 April 2017 onwards – at conciliation respondent’s reinstatement offer was rejected – respondent submitted to Commission any future orders should be restricted to reinstatement – applicant sought order for maximum compensation as she believed working relationship was damaged beyond repair and was concerned of potential victimisation – matter determined by determinative conference because limited factual disputes; language barrier; and parties were unrepresented – respondent apologised and accepted dismissal was unfair and they could not lawfully terminate applicant until after temporary absence had eventuated – respondent provided reassurances to applicant and re-encouraged applicant to consider offer of reinstatement – Commission provided applicant opportunity to reconsider – applicant declined offer – Commission satisfied applicant’s dismissal was unfair but not persuaded relationship had irretrievably broken down – accepted respondent’s apology and offer were genuine – found applicant’s refusal to return to work were unfounded in circumstances – found neither an order for compensation nor an order for reinstatement were appropriate – application dismissed – order dismissing application issued. Gumwel v JBS Australia P/L
