CONDITIONS OF EMPLOYMENT – redundancy – ss.119, 120, 122 Fair Work Act 2009 – applicant made respondents redundant – applicant seeking reduction of redundancy entitlements payable – applicant claimed it obtained respondents acceptable alternative employment – respondents opposed application on basis they found alternative employment themselves – respondents commenced employment with new employers immediately or shortly after termination – Commission considered meaning of ‘obtain’ in Hunt Energy, FBIS International, Derole Nominees, Clothing Trades and Allman – Commission noted that ‘obtain’ alternative employment is not an absolute test on employer’s ability to obtain employment but refers to action which causes employment to become available (Derole) – Commission considered meaning of ‘other acceptable employment’ in Spotless Services, Oscar Oscar, Felix, Vicstaff and DRW Investments – alternative employment not synonymous with identical employment but terms and conditions should be no less favourable overall – applicant offered some of the respondents employment at applicant’s related childcare centres – six respondents rejected offer of employment with applicant – applicant submitted Commission should apply s.122(3) of FW Act disentitling respondent who rejects an offer of employment made on terms substantially similar – Commission satisfied offer of employment with related childcare centres were acceptable alternative employment – Commission rejected claim that employment unacceptable due to additional 1.15 hour travel time – Commission found whether employee rejects or accepts an offer is not test of whether employment acceptable – Commission reduced redundancy payable – Commission found offer of employment with related child care with lesser duties, uncertainty about when the Centre would open or lesser pay was not acceptable – applicant submitted it obtained alternative employment for respondents by engaging consultant who organised interviews – respondents submitted that applicant merely encouraged respondents to facilitate their own obtainment of employment – Commission not satisfied applicant found respondents employment as a result of conscious and intended actions and no basis to reduce redundancy – applicant submitted two respondents did not cooperate with applicant – applicant submitted that employer should not be penalised because employee refuses to cooperate with every effort made by the employer – respondents submitted that Act does not confer a positive obligation on an employee – Commission found respondent’s new employment was not a result of conscious and intended act of applicant as respondent would not accept assistance – Commission noted no obligation in Act that require employees to cooperate with employer in obtaining employment – Commission not satisfied that applicant obtained employment for respondents – two respondents also rejected offer of employment from related childcare centre – Commission reduced redundancy as offers were reasonable acceptable alternatives. Norwest Child Care Centre P/L v Paul and Ors
June 21, 2017
INDUSTRIAL ACTION – order against industrial action – ss.19, 418 Fair Work Act 2009 – application for orders under s.418 FW Act against Maritime Union of Australia (MUA) and its employees employed at Webb Dock Drive in respect of unprotected industrial action involving stoppages of work and reductions in productivity that occurred on several occasions – Commission had previously made interim order on 8 May 2017 – submitted that application related to industrial action that is ‘threatened, impending or probable and/or is being organised’ in form of ban or limitation on performance of work by employees and failure or refusal by employees to attend for work – employees were engaged under terms and conditions in Toll Shipping Melbourne Stevedoring Enterprise Agreement 2015 (the Agreement) – application was made in response to unprotected industrial action that had taken place at site during previous three weeks and constituted industrial action under s.19(1)(b) and/or (c)– submitted that recent unprotected industrial action and the outstanding issues raised by MUA indicated that further industrial action was likely – submitted that action was being organised by MUA – MUA submitted that there was no on-going industrial action and it had instead given notice of issues requiring further discussion and any evidence about past action that might have occurred was not sufficient to support conclusion that unprotected industrial action was ‘threatened, impending or probable’ – MUA submitted that any order made should not be directed to all officeholders of MUA as this would extend orders to officeholders who were not involved in alleged industrial action at site – Commission satisfied that unprotected industrial action had occurred in the recent past at Webb Dock site – found that unprotected industrial action was not currently happening at the site – satisfied that protected industrial action was at least ‘impending or probable’ based on what had occurred at site in the recent past and nature of outstanding and on-going issues – satisfied that officials of the MUA had been involved in organising action – Esso considered – held order to be directed only at stoppages of work – appropriate to extend terms of order to include MUA officials involved in organising action involving stoppages of work – appropriate for order to operate for further period of one month to allow time for discussions about issues identified by MUA – order issued. Toll Transport P/L t/a Toll Shipping v The Maritime Union of Australia
June 21, 2017
ANTI-BULLYING – order to stop bullying issued – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant employed at Mag Wheel and Tyre P/L – application made against co-owner of company who is also applicant’s uncle – alleged bullying conduct related to repeated verbal abuse, physical intimidation, ridicule of personal achievements and undermining the applicant in front of other staff and customers – Commission issued a statement on 16 May 2017 which outlined a broad proposal for resolution – further statement issued on 30 May 2017 which indicated there was a sufficient jurisdictional basis for the making of interim consent orders preventing the parties from directly communicating with each other, including verbal, written or electronic communication, and from being within 10 metres of each other – Mag Wheel and Tyre P/L also ordered to provide proposal for implementing anti-bullying training and policies and procedures to avoid workplace bullying or other inappropriate conduct in the workplace – Commission noted in separate proceedings applicant charged on summons in respect of two matters alleged to have taken place on 13 April 2017, firstly causing injury without lawful excuse and secondly, unlawful assault – interim intervention order issued by Heidelberg Magistrates’ Court against applicant on 18 April 2017 to not commit family violence – interim orders as discussed in Re Lynette Bayly and Quinn v Overland considered – Commission found orders appeared ineffectual in keeping parties apart and ordaining workplace civility – satisfied this matter featured rare and unusual circumstances and there would be a prejudice to multiple parties if interim orders not made – such orders appropriate although issued lightly and exercised with considerable caution – orders will operate until the application is heard. Mr Kypuros
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.590, 603, 739 Fair Work Act 2009 – matter related to dispute under the BlueScope Steel Port Kembla Steelworks Agreement 2012 (the Agreement) involving BlueScope’s proposal to introduce the Trade Operator Model (TOW) into its Hot Mills Department – BlueScope proposed to restructure work and training of Tradepersons and Operators within business to realise cost savings in [[2015] FWC 6512] – Commission allowed introduction of TOM on understanding that a review would be conducted into its operation in April 2016 – proposed review had been overlooked and was brought to attention of the Commission by AMWU in separate matter – Commission subsequently issued notice of listing to conduct a conference in relation to review – BlueScope issued jurisdictional objection relating to the capacity of Commission to conduct review – BlueScope submitted that this was a process not open to the Commission and therefore, the proceedings had concluded with the implementation of the TOW – contended that if the review was within the Commission’s power it has since been extinguished by the making of newer 2015 agreement – AMWU contended that absent any appeal, the Decision at first instance stands – submitted that proceedings had not concluded and that TOM was introduced subject to Commission’s review – AMWU submitted that Commission was entitled to conduct the review to inform itself in accordance with s.590 – Commission held that process had not been concluded and it would be procedurally unfair to unions to ignore review – found that BlueScope did not take opportunity to appeal decision at first instance and evidence indicated that they were waiting for Commission to undertake review – Commission not persuaded that the making of 2015 agreement settled dispute, given that the duties, skills and competencies of each classification, which are core to the review, are not yet settled in that agreement – jurisdictional objection not made out – application dismissed – conference to be convened on 15 June 2017 to discuss process of the review. The Australian Workers’ Union and Ors v BlueScope Steel (AIS) Port Kembla
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – Construction, Forestry, Mining and Energy Union (CFMEU) notified Commission of a dispute with Hyne Timber in accordance with the relevant enterprise agreement (EA) – CFMEU asserted employer had not complied with consultation provisions in EA or relevant modern award in relation to imminent redundancies – employer asserted CFMEU did not have standing to make application and cannot make application on behalf of members who are no longer employees – employer submitted Commission does not have jurisdiction to deal with matter – Commission determined CFMEU, officers and members employed by Hyne are bound and covered by EA – Commission considered RTBU v Asciano Services P/L that it is contrary to obligations of Act to automatically dismiss applications where every employee party was not identified by name on s.739 application – Commission determined CFMEU and its officials were bound to EA – Commission determined CFMEU can lodge application in its own right – determined decision in Asciano allows CFMEU to notify Commission of dispute in accordance with Dispute Procedure in EA for any unnamed member including a member that has been terminated while issue was in dispute. Construction, Forestry, Mining and Energy Union v Hyne Timber P/L t/a Hyne Timber
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – disputes under UGL Operations and Maintenance P/L Ichthys Onshore Construction Greenfields Agreement and Kentz P/L Ichthys Onshore Construction Greenfields Agreement relating to inclement weather/cyclone preparation – Commission held that the agreements in question enabled an affected employee to remain onsite during inclement weather – did not allow employer to direct employees not engaged in active work to leave site (where particular criteria are met) – Commission also held that employer is required to pay an affected employee for their scheduled work where the employee exercises the option to stay. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v UGL Operations and Maintenance P/L and Anor
June 21, 2017
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A Fair Work Act 2009 – application for costs incurred in relation to unfair dismissal matter – Commission previously found respondent employer did not have valid reason to terminate applicant’s employment and dismissal unfair – consent order issued on 30 January 2017 to reinstate employee and back pay for remuneration lost – applicant made application pursuant to s.400A for costs – applicant submitted that agreement had been reached between parties at conciliation conference before Commission on 10 August 2016 and that failure of settlement to eventuate was unreasonable act on respondent’s part which caused him to incur costs – respondent opposed costs on grounds that settlement proposals made during conciliation process inadmissible and could not be relied upon – no delay by respondent after decision made to warrant order of costs – applicant’s success did not by itself justify order of costs – parties agreed to resolve proceedings in terms set out by consent – Commission noted well-accepted principle that each party bears its own costs in relation to matter before Commission – s.400A concerned with unreasonable acts or omissions in connection with ‘conduct or continuation’ of a matter already instituted, not with whether it was reasonable to have instituted matter in first place [Gugiatti] – Commission held finding that applicant unfairly dismissed not relevant to claim of unreasonable acts or omissions by respondent – offers made during earlier conciliation conference also not to be taken into account – the fact that respondent lost its case did not mean it had no prospects of success – no concerns raised by applicant or his solicitor that respondent was responsible for any unreasonable delay – Commission found respondent’s defence of unfair dismissal claim made by applicant not unreasonable and satisfied that respondent did not cause applicant to incur costs because of any unreasonable acts or omissions in connection with conduct or continuation of matter – application for costs dismissed. Petreski v Sydney Water Corporation t/a Sydney Water
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned appropriate penalty rate payable to drivers who worked on 27 December 2016 – dispute arose in relation to application under dispute resolution procedure in the SUEZ environment Australia – Recycling & waste recovery Brisbane Drivers Enterprise Agreement 2015 for Drivers engaged in SUEZ environment Australia – Recycling & waste recovery operation of the Brisbane City Council’s Contracts (the Agreement) – applicant submitted applicable rate payable was payment for ordinary hours normally rostered and a rate of double time for all work performed – applicant submitted that 27 December was a substitute day for Christmas day and thus the rates payable on Christmas Day applied – respondent paid employees for the public holidays as well as the hours worked on this day at the rate of time and a half – respondent submitted work on 27 December was work within ordinary working hours and was subject to ordinary rates – Commission found Good Friday and Christmas Day attract penalties under the Agreement but that Christmas Day was 25 December not 27 December – Commission found rate payable to employees working on 27 December was ordinary time and a half provided that the work was performed within ordinary working hours of those employees plus any amount payable in respect of the weekly wage for public holidays. Transport Workers’ Union of Australia-Queensland Branch v Suez Recycling and Recovery P/L t/a Suez
