Twenty eight unfair dismissal/labour dispute applications will be heard by Fair Work Commissioner today. The list is: Equity Valet Parking Pty Ltd (Lynch), State Revenue Office (Tucker), Serco Australia Pty Ltd (Ramos), Queensland Property Investments Pty Limited (Gibson), Barada Barna Aboriginal Corporation (Dargan, Roos), Blenners Transport Qld Pty Ltd (Collocott), Modern India Pty Ltd (Patel), Viatek Pty Ltd (Newell), Victorian Building Authority (Forrest), ACES Incorporated (Martin), Artcraft Pty Ltd (Alverson), Royal Wolf Trading Australia Pty Ltd (Abbott), Challenge North Shore, Precision Assembly (Bakri), Blooms the Chemist Management Services (Cameron), Star Track Express Pty Ltd (Williams), South Bexley Service Centre Pty Limited (Paloumpis), Southern Cross Mining Services Pty Ltd (Carlier), Specialist Diagnostic Services Pty Ltd (Wringley), St Vincent De Paul Society (Campbell), Delta Hyrdaulics Pty Ltd (Schier), Data Processors Pty Ltd (Dowd), Mungabareena Aboriginal Corporation (Murray), Rivalea (Australia) Pty Ltd (Howard), Eastside Protection (Barrett), Fat Prophets Pty Ltd (Parkes), Westpac Banking Corporation (Sureka), Ranstad Pty Ltd (now HCA) (Snelling).
June 26, 2017
Its hardly worth the Fair Work Commissioners getting out of bed to hear only three labour dispute cases. The list includes: South Bexley Service Centre Pty Limited (Paloumpis), Andrew Kohn Pty Ltd (Scop), Australian Accident Management Commercial (‘AAMC’) Pty Ltd (Gioskos).
June 23, 2017
A spike in unfair dismissal/labour dispute applications will test the endurance of Fair Work Commissioners today. The full list is: Teys Australia Central Queensland Pty Ltd (Rodrigues), Star Track Express Pty Ltd (Williams), Spectrum Community Focus Limited (Valenzuela), Davidson Imports Pty Ltd (Goonewardene), ACE Operations Pty Ltd (Keighley), Carbridge Pty Ltd (Mazen), Falbury Pty Ltd (Layt), PPK Mining Equipment Pty Ltd (Barnden), Illawarrra Coal Holdings Pty Limited (Gosek), Early Links Inclusion Support Service Incorporated (Lee-Warner), Newcastle Permanent Building Society Limited (Weiss), Kalkamoning Pty Ltd (Fairman), Islamic Society of Victoria (Abou-Eid), Merriwa Industries Ltd (Bartlett), Apple (Harding), Virgin Australia Airlines Pty Ltd (Ingall), Morisset High School P&C Association (Burke, Dean), Krispy Kreme Australia Pty Ltd (Lally), National Union of Workers-New South Wales Branch (Herbert), Ceva Logistics (Australia) Pty Ltd (Sarpowan), Fieldforce Services Pty Ltd (Twigley), Wheadons Freight Management (Appleton), Australian Catering (Chen), RACV Cape Schanck Resort (Trembath), Luka Tippers and Excavation Pty Ltd (Everett), Omni Pty Ltd (Psalla), Department of Education and Training (Freeman), Barada Barna Aboriginal Corporation (Dargan, Roos), Bakers Club Worldwide Pty Ltd (Hall, Palibino), Mobile Computing Pty Ltd (Tye).
June 23, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – contractor or employee – ss.382, 394 Fair Work Act 2009 – whether small business minimum employment period of 12 months completed – whether extension of time required – applicant engaged as employee from 1 December 2015 – engaged by respondent from December 2011 – status of engagement between 2011 and 2015 disputed – multifactorial test for establishing whether engagement was subject to contract of employment or contract for services applied using French Accent v Do Rozario indicia – Commission ordered production of confidential financial information – found applicant engaged as an independent contractor between 1 December 2011 and 30 November 2015 – minimum employment period disputed – respondent was small business under s.383 FW Act – applicant submitted that he did not resign on 22 November 2016 but was directed to cease work due to stress from November 2016 to January 2017 – respondent submitted that applicant resigned verbally on 22 November 2016 – submitted that resignation was formally accepted on 29 November 2016 and final employment payments made the next day – Commission found that applicant began to dispute resignation on 7 December 2016 but did not do everything reasonably possible sooner to dispute or withdraw resignation – held that respondent allowed a reasonable time to elapse before acting on resignation – found that applicant had not completed minimum employment period for small business at time of termination – jurisdiction objection upheld – not necessary to consider application for extension of time – application for unfair dismissal dismissed. Brooker v Autolync t/a Autolync
June 23, 2017
CASE PROCEDURES – evidence – production of documents – s.739 Fair Work Act 2009 – on 25 May 2017 Order issued for production of documents directed to respondent – respondent objected to production of some documents 4, 10A, 10B, 11, 12 and 13B in Schedule of Order on grounds of relevance and commercial sensitivity – substantive matter related to whether respondent was required to facilitate the making of an in-house bid for garbage collection in Southern District of MCC – applicant submitted that documents sought have apparent relevance to the matter before Commission – that dispute is about application of Clause 6.2 of Moreland City Council Enterprise Agreement 2015 (Agreement) and how it applied in current circumstances – Commission held confidentiality or commercial sensitivity were not grounds alone on which to deny Order for production of documents but it may be grounds for placing restriction on inspection of documents [The Association of Professional Engineers, Scientists and Managers, Australia v Airly Coal P/L] – held Document 4 had some apparent relevance to issues that might arise – Commission not convinced that Documents 10A, 10B, 11 and 12 had any apparent relevance – held Document 13B, a comparison of bin lift costs, had some apparent relevance – held some restriction should be placed on inspection of Documents 4 and 13B due to commercial nature – ordered that documents should be made available for inspection by legal representatives of applicant and its Branch Secretary only – the documents and their contents were otherwise not to be disclosed to any person without further order of Commission – either party able to apply for a variation to Order – consent to such variation should be sought in the first instance. Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council
June 23, 2017
ENTERPRISE AGREEMENTS – genuinely agree – s.185 Fair Work Act 2009 – application by FIP Electrical (NSW) P/L t/a FIP Electrical (NSW) P/L for approval of single enterprise agreement, FIP Electrical P/L (Tasmania Division) Construction Enterprise Agreement 2017-2020 (Agreement) – earlier application for approval withdrawn after Notice of Employee Representational Rights (NERR) inconsistent with requirements in the FW Act – accepted that bargaining for first agreement ceased when employer advised of NERR issues – answer on Form F16 of no employee bargaining representatives in error – no suggestion that continuity of employment broken on change of geographical region of work – CEPU opposed approval – Agreement negotiated and made with employees not geographically covered by its scope at the time – Commission found that Agreement not genuinely agreed to as employees who voted were not covered by scope – employer also provided notice for appointing a bargaining representative that undermined the NERR – held could not be approved – application dismissed. FIP Electrical Pty Ltd (Tasmania Division) Construction Enterprise Agreement 2017- 2020
June 23, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged 11 days late – whether exceptional circumstances exist – Nulty considered – applicant said he lodged his (original) unfair dismissal application on-line and within time – applicant cannot recall being requested to pay the lodgment fee (or complete the fee waiver application) and there is no evidence that he did so – evident that applicant did not fully complete the lodgment process – no evidence that the on-line lodgment system was not operating properly – no application lodged – after a delay the applicant sought legal advice – was advised that he should have received some contact from the Commission – applicant immediately contacted the Commission and was advised that no application had been received – applicant then lodged the unfair dismissal application and made the relevant payment – he received email confirmation of the application – Commission held the explanation for elements of the delay was not entirely satisfactory – the obligation is upon applicants to ensure that they have actually lodged the application within the initial time limit – not persuaded that exceptional circumstances had been established – application dismissed. Pavlenko v Dirtybits P/L t/a SA Motorcycles
June 23, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal – applicant employed since 2009 as a casual gym instructor – since September 2016 he had been working one shift each weekend of 5.5 hours – a new roster in January 2017 provided him a Saturday shift every weekend of 3 hours – applicant objected to this reduction in hours – applicant emailed respondent advising of his ‘involuntary resignation’ because of what he characterised as the respondents ‘refusal to abide by the agreed 5.5 hours per weekend shift agreed in September’ – applicant claimed he was forced to resign because of the conduct of his employer – respondent objected to the application on the grounds that the applicant was not dismissed – Commission found no evidence that the respondent’s conduct was intended to bring the applicant’s employment to an end – applicant had a number of other options rather than resigning – found resignation was voluntary – applicant not forced to resign because of the conduct or the course of conduct engaged in by his employer – applicant has not been dismissed within the meaning of s.386 and so cannot have been unfairly dismissed – no jurisdiction for the Commission to deal with this application – application dismissed. Wilson v Town of Victoria Park t/a Town of Victoria Park
