ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – at first instance, Commission issued decision [[2016] FWC 5568] and held there was no jurisdiction to deal with application – decision overturned on appeal by Full Bench [[2017] FWCFB 143] – appeal decision remitted matter to back to Commission – applicant employed by respondent as Locomotive Driver since 6 February 2012 – on 29 August 2015, applicant worked as a driver assisting with driver Mr Enslin on train number 7721 – train passed signal at red, also known as SPAD (signal passed at danger) – respondent conducted disciplinary investigation and suspended both applicant and Mr Enslin from duty without pay for one week – applicant lodged with respondent a Resolving Differences Notification Form under subclause 45.15 of Aurizon (Western Australia) Rail Operations Enterprise Agreement 2014 (Agreement) – dispute not resolved at workplace level and applicant referred dispute to Commission in accordance with subclause 45.4 of Agreement – applicant disputed disciplinary measure taken against him and sought declaration from Commission that disciplinary measure was unfair, unreasonable and harsh in the circumstances – also sought order for wages lost as result of suspension from duty without pay – question for Commission was whether disciplinary sanction imposed on applicant unjust or unreasonable – XPT Case considered – Commission held that SPADs varied in seriousness depending upon circumstances and that disciplinary sanctions imposed by respondent took into account seriousness of SPAD and other factors – accepted that driver and driver assisting were equally responsible for train’s safe operation, even if they have different roles – held it was not unjust or unreasonable that applicant, as the driver assisting, received same disciplinary sanction as driver – application dismissed. Lloyd v Australia Western Railroad P/L t/a ARG an Aurizon Company
June 23, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was dismissed by respondent, which was a small business restaurant – respondent submitted that its grounds for dismissal included that applicant was allegedly the subject of complaints from customers and staff and shouted at the restaurant owner – applicant submitted that he was dismissed because he inquired about superannuation and holiday pay that he had not received – Commission found that, where the applicant’s and respondent’s evidence conflicted, the applicant’s evidence was to be preferred – held that applicant was summarily terminated and that the reason provided for this termination did not meet the test in the Small Business Fair Dismissal Code (the Code) – held that the occasions where the applicant directed the respondent to leave the restaurant amounted to a valid reason for dismissal, however this was not sufficient for the dismissal to be deemed fair [Toby] – found the dismissal was unfair having regard to the lack of notice and the lack of reasons given for dismissal – parties provided with seven days to make submissions in relation to compensation. Duddington v Mario and Clara Enterprises P/L and Anor
June 22, 2017
A s.185 (Enterprise agreement) application by Victorian WorkCover Authority T/A WorkSafe Victoria for its Victorian Workcver Authority Enterprise Agreement 2016-2020 has been ratified by Commissioner Cirkovic in Melbourne on 21 June 2017.
June 22, 2017
Twenty-eight labour dispute applications will be heard by the Fair Work Commission today. The full list: Kanandah Retirement Limited (McDade), Star Track Express Pty Ltd (Williams), Challenge North Shore, Precision Assembly (Bakri), PFD Food Services Pty Ltd (Burns), A Little Rei of Sunshine (Harris), YDC Port Macquarie Pty Ltd (Ross), Illawarra Coal Holdings Pty Limited (Gosek), Baker’s Delight – Belmont Citi Centre (Cobbin), Tasmanian Country Club Casino Proprietary Limited (Curtis), Forest Hill Outside School Hours Care Inc (Guy), Woodside Energy Pty Ltd (Barthram-Kidd), Woolworths (Marshall), Adelaide Dental Solutions (Damin), Broadspectrum (Australia) Pty Ltd (Timms), Sodiia Evelina Kemp (Halpin), TechnologyOne Limited (Meikle), Guide Dogs for the Blind Association of Queensland & Jackson and Others (Evans, Ferguson, Ingram), Pollock (Titasey), Spencers Amcal Pharmacy (Photopoulos), RACV Cape Schanck Resort (Trembath), Entire Fire Protection Pty Ltd (Wilson), Department of Justice and Regulation (Litchfield), Compass Group (Australia) Pty Ltd (Lomas), Scotch Oakburn College (Kypriotis), Royal Childrens Hospital (Krakowsky).
June 21, 2017
An application for approval of the Victorian WorkCover Authority Enterprise Agreement 2016-2020 (s.185 – Application for approval of a single-enterprise agreement) will be heard by Commissioner Cirkovic in his Melbourne chambers at 2pm.
June 21, 2017
An application/notification by Australian Security Industry Association Ltd (s.158(1) RO Act – Application for alteration of eligibility rules) will be determined by Senior Deputy President Hamberger in hearing room 14-1 – level 14 in Sydney (2pm).
June 21, 2017
Thirty-seven labour dispute applications are scheduled for hearing before the Fair Work Commission. The full list is: Open Minds Australia Limited (Armstrong), Buslink Queensland Pty Ltd (McNamee), Business Risks International (Victoria) Pty Ltd (Cessario), New Brighton Golf Club (Stapleton), Pilbara Meta Maya Regional Aboriginal Group (Crabtree), Integrated Facility Solutions (IFS) Pty Ltd (Bell), Pickwick Group Pty Ltd (Chisari), Boral PlasterBoard Pty Limited (Te Namu), Pinnacle Hospitality People Pty Ltd (Moore), Transgrid (Adsett), Martin Hunter Pty Ltd and the Trustee for DanJam Family Trust (Hollywood), Newspot Holdings Pty Ltd (Moore), Liamsans Pty Ltd (Ferguson), MSS Security Pty Limited (Hygonnet), Donnik Pty Ltd (Christie), Excelcare Australia Ltd (Hughes), Rent My Property (Quinn), FWR Pty Ltd (Power), Bynoe Community Advancement Cooperative Society Ltd (Douglas), TechnologyOne Limited (Meikle), The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Lane), Lash U Lashes Pty Ltd (Davey), South Oakleigh Club (Gillmore), Aviation Training Australasia Pty Ltd (Hertaeg), Bakers Extra Pty Ltd (Digiaro), Viva Energy Refining Pty Ltd (Pearse), Hairhouse Warehouse (Trifiletti), Northern Health (Mason), Metro Scaffold Hire (Gullotti), Sydney Trains (Singh), Commonwealth Bank of Australia (Rayner), No 1 Riverside Quay P/L (Rajwani), SecureCorp Pty Ltd (Boyd, Brambilla, De-Ruiter), SecureCorp (SA) Pty Ltd (Kitching), Newspot Holdings Pty Ltd (Moore).
June 21, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – the Penalty Rates decision issued on 23 February 2017 [[2017] FWCFB 1001] determined that the existing Sunday penalty rates in the Hospitality, Fast Food, Retail and Pharmacy Awards did not achieve the modern awards objective – the effect of the Penalty Rates decision was to reduce Sunday penalty rates to 150 per cent for full-time and part-time employees in the Hospitality, Retail and Pharmacy Awards and to 175 per cent for casual employees in the Retail and Pharmacy Awards – the Sunday penalty rate for casual employees in the Hospitality Award remained unchanged at 175 per cent – the decision reduced the Sunday penalty rates in the Fast Food Award (for Level 1 employees only) to 125 per cent for full-time and part-time employees and 150 per cent for casual employees – the Penalty Rates decision also reduced the public holiday penalty rates in the above awards as well as the Restaurant Award – this Penalty Rates – Transitional Arrangements decision deals with the implementation of the Penalty Rates decision and first dealt with a number of general issues canvassed in the submissions – reconsideration – a number of parties (including United Voice, the ACTU and the Federal Opposition) submitted that the Penalty Rates decision should be ‘set aside’ or ‘not implemented’ – a number of grounds were advanced in support of those submissions including that the decision did not give appropriate weight to the impact on workers of cutting penalty rates – the Full Bench held that there was no substance to this proposition and rejected the proposition – take-home pay orders – the purpose of ‘take-home pay orders’ is to compensate an employee for any reduction in their pay as a result of the making of a modern award or the transitional arrangements in a modern award – the Full Bench concluded that ‘take-home pay orders’ were not an available option to mitigate the impact of the reductions in penalty rates determined in the Penalty Rates decision – the red circling proposal – ‘red circling’ refers to the practice of preserving the status quo for existing employees and only imposing a particular change on employees engaged after a specified date – in the present context it would mean an award term which would preserve the current Sunday and public holiday penalty rates for all existing employees, but the reduced penalty rates would apply to all new employees – the Full Bench was not persuaded of the merit of inserting a ‘red circling’ term – delayed implementation – the SDA, United Voice and the ACTU all proposed that the implementation of the reductions for Sunday penalty rates in the Hospitality, Fast Food, Retail and Pharmacy Awards be delayed by a period of two years – APESMA submitted that the implementation of the reductions in Sunday penalty rates in the Pharmacy Award should be delayed for four years – the various employer organisations opposed the imposition of a delay in the implementation of the Penalty Rates decision – the Full Bench was not persuaded that it was appropriate to impose any further delay in the implementation of the Penalty Rates decision – Sunday Penalty Rates – phased reductions will be implemented on 1 July each year, at the same time as the implementation of any increases arising from the Annual Wage Review decision – in relation to Hospitality, Fast Food, Retail and Pharmacy Awards, the Full Bench decided the transitional arrangements set out in the decision were necessary to ensure that the award achieves the modern awards objective – Public Holiday Penalty Rates – in the Penalty Rates decision the Full Bench decided to reduce the public holiday penalty rates in the Hospitality, Restaurant, Fast Food, Retail and Pharmacy Awards – the Full Bench concluded that the reductions in these rates should take effect on 1 July 2017, without any transitional arrangements – draft variation determinations – draft variation determinations in respect of the Sunday penalty rate provisions and the public holiday penalty rate provisions have been published – comments on the form of the draft determinations should be sent to [email protected] by 4.00 pm on Thursday 15 June 2017. 4 yearly review of modern awards – Penalty Rates – Transitional Arrangements
