ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute regarding proper application of clause 5.2 of Bytecraft Systems Employee Enterprise Agreement 2012 – Workshop & Logistics (Agreement) – dispute not resolved at conciliation – dispute within scope of dispute settlement procedure – appropriate steps of procedure followed – decision dealt with two preliminary issues: whether clause 5.2 requires employer to supply to each employee a mobile phone or Pocket PC, and if so what is a Pocket PC – clause 5.2 states ‘mobile phone or pocket PC will be supplied’ – employer submitted clause 5.2 about tools of trade as opposed to employee benefit – Commission found submission not sustainable – clause preamble states tools of trade provided in clause are ‘for the benefit of employees’ – whether supply of property referred to in clause 5 is mandatory or discretionary depends upon clause wording, not on some inherent property of a tool of trade – employer argued there are some circumstances when word ‘may’ has mandatory meaning and some circumstances when ‘will’ not absolutely mandatory [Catholic Regional College Sydenham] – Commission satisfied that generally the word ‘will’ is mandatory – could only be in particular exceptional context that this not the case – no basis to find clause ambiguous – would need to be something in context of legislation, placement of clause in Agreement or surrounding language of Agreement that suggested ‘will’ was not mandatory – wording of clause 5.2 clear and plain – where framers sought to make entitlement discretionary, the word ‘may’ used in Agreement – definition of Pocket PC considered – submissions filed by unions provided number of sources for definition of Pocket PC – necessary to consider what an objective person would have understood by phrase in 2012 – Commission satisfied that considered in context a Pocket PC a hardware specification from Microsoft for a small, handheld computing device that uses the Microsoft Windows Mobile operating system – parties to meet to attempt to reach resolution of remaining issues in dispute – further conference listed. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Bytecraft Systems P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.385, 386, 394 Fair Work Act 2009 – respondent made a jurisdictional objection on 29 September 2016 – ‘termination is at the employer’s initiative when the employer’s action directly and consequentially results in the termination of employment and had the employer not taken this action the employee would remain employed’ [Mohazab] – respondent submitted applicant’s employment not terminated at the initiative of employer nor was he forced to resign – respondent stated they consulted with applicant regarding possible change to his role during a meeting on 9 August 2016 – applicant had opportunity to raise consideration between that meeting date and meeting on 15 August 2016 – applicant argued respondent unilaterally changed the his job description and without prior consultation – applicant was moved from a driver to a storeperson – applicant raised medical concerns regarding working in the freezer – argued change to role was put to him as an ultimatum – whether respondent was subject to the Small Business Fair Dismissal Code – Commission satisfied applicant was dismissed, dismissal not consistent with the Code and dismissal was not a case of genuine redundancy – found respondent did not have ability to unilaterally change applicant’s position when he did not agree to take on new role therefore no valid reason for constructive dismissal – determined applicant’s dismissal was harsh, unjust and unreasonable – Commission determined reinstatement inappropriate – Haigh v Bradken test considered for remedy of compensation – Commission unable to finalise determination of amount of compensation – requested further information – will order compensation to be paid in instalments once amount of compensation is known – further decision and an order to be issued within two weeks of receipt of requested information. Keogh v French Par-Bake
June 2, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant lodged application for unfair dismissal remedy outside of 21-day time limit – respondent objected on basis of application being lodged out of time and case of genuine redundancy – Commission dealt with extension of time matter first – Commission must be satisfied ‘exceptional circumstances’ for delay [Nulty] – applicant claimed notified of termination while in Japan and evidence went to difficulties gathering thoughts, lack of access to internet and information and inability to obtain advice – emerged during hearing that applicant was not contemplating making application regarding termination while in Japan as believed she had been made redundant and was focused on whether termination payment was in accordance with legal entitlement – applicant only became aware after 21-day period of potential unfair dismissal claim after being advised that casual employee of respondent who was also dismissed was being ‘brought back’ – Commission satisfied applicant only formed view that her termination was not result of genuine redundancy after she conversed with former colleagues upon returning from Japan – once she was told respondent was re-engaging former staff member, short period of time elapsed before she filed applicant for unfair dismissal – honest and reasonably held belief that an earlier redundancy may not have been genuine based on plausible information, may constitute ‘exceptional circumstances’ [Bananacoast] – Commission satisfied test met in this instance, given unusual feature to applicant’s case that it was only on 21st day after termination that she first developed doubts as to genuineness of redundancy – extension of time granted – matter referred for further directions so jurisdictional objection and merits of application could be heard and determined. Okamoto v GBW GAPbuster Worldwide P/L
June 2, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute arising under Appin Colliery & West Cliff CPP Enterprise Agreement 2015 (the Agreement) – application to determine whether the Agreement requires the respondent to pay a shift loading in addition to public holiday penalties to employees covered by the Agreement who perform shift work on a public holiday – Golden Cockerel applied – historically there were separate enterprise agreements for Appin and West Cliff – employees at West Cliff were not paid shift allowances in addition to the public holiday penalties for work on a public holiday, and Appin employees were paid the shift allowances in addition to the public holiday penalty rates – respondent has since ceased that practice, which gave rise to current dispute – applicant submitted that Appendix 3 was fundamental to the resolution of the current dispute, and the clauses within the Agreement are separate and discrete and provided different entitlements for different reasons, particularly that Appendix 3 provided separate and discrete payment rules for shift allowances, weekend penalties and public holiday penalties – respondent submitted that the public holiday provisions of the Agreement were clear and comprehensive, and applied in place of all other allowances or components which might otherwise have been triggered – further submitted that there was no basis for an interpretation of the Agreement which required shift penalties to be paid in addition to public holiday penalty rates – Commission held it was evident from the words in the public holiday clause that payment for a public holiday includes only that which is specifically stated in Appendix 3 – were it otherwise, this would have been explicitly stated within the Agreement, as it has been in other clauses – held it was clear from the language of other clauses within the Agreement that an express basis for the payment of more than one component set out in Appendix 3 may be payable at the same time – application dismissed. Construction, Forestry, Mining and Energy Union v Endeavour Coal P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a full-time factory worker – notified by respondent that his position was being made redundant – applicant contended that his dismissal was unfair, primarily on the basis that his purported redundancy was not genuine and that he had been dismissed because of his insistence that he be paid in accordance with the relevant modern award – Commission accepted the evidence given by the applicant about his working hours and the way he was paid – in July 2016 the applicant made a formal complaint to the Fair Work Ombudsman’s office (FWO), who advised him to speak to the General Manager of the respondent about being paid in accordance with the award – the applicant said he spoke to the General Manager, who responded by saying ‘We are a small business we do not have to abide by the award but I will put you on as a casual employee’ – the General Manager did not deny this in his witness statement – versions of events of the applicant and the respondent diverge sharply in relation to the circumstances leading up to the dismissal and the true reasons for the dismissal – applicant submitted that the respondent offered him a pay increase of $1,000 per annum to, in effect, acquiesce in the existing pay arrangements and cease complaining about them – the applicant further submitted that he refused this offer and insisted on being paid according to the Award, and this led to him being abruptly dismissed a few days later – the respondent submitted that the cold pressing work which the applicant performed was declining, so it had offered him the $1,000 increase as an incentive to be retrained in the use of new equipment for the production of baked products which it had acquired – further submitting that the applicant had refused to be retrained, and accordingly the business had no choice but to dismiss him on the grounds of redundancy – Commission found that the $1,000 pay increase was offered to resolve the applicant’s complaints, including his complaint to the FWO, about his pay arrangements, and was not offered as an incentive for him to retrain – found that the real reasons for the dismissal were to dispose of the problem raised by the applicant’s pay complaints, and the difficulties which had arisen in the working relationship between the applicant and his supervisor – after requesting a separation certificate the applicant was advised by the respondent that ‘we are unable to provide a separation certificate as we are pursuing the perpetration of an alleged fraud and abandonment of your workplace which placed the business under undue hardship’ – Commission held that by this action, having dismissed the applicant from his employment, the respondent engaged in a malicious attempt to prejudice the applicant’s chances of obtaining Newstart benefits – found the suggestion of legal proceedings against the applicant for fraud was an outright falsehood as there were no such proceedings and was an attempt to intimidate the applicant – Commission found the dismissal was not a case of genuine redundancy – found the dismissal was not consistent with the Small Business Fair Dismissal Code – found no valid reason for the dismissal – dismissal was harsh, unjust and unreasonable and with no proper basis – reinstatement not appropriate – provisional view that compensation of $10,694.84 would be appropriate in all the circumstances – parties allowed a further opportunity to make written submissions on the issue of the quantification of compensation only. Garang v Byron Bay Superfoods P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief for unfair dismissal – applicant commenced employment with respondent on 30 September 2014 as a Port Hedland based Inventory Controller – applicant was transferred to respondent’s Perth Inventory Management Team in June 2014 – respondent submitted applicant lacked the necessary skills, capabilities and knowledge to adequately perform his role and his manner and attitude to customers and internal personnel was unsatisfactory – further submitted applicant experienced difficulty in his relationships with colleagues and clients – submitted applicant was informally mentored by an experienced team member but no improvement ensued, and that group training sessions were also held so applicant didn’t feel singled out – single training sessions with the applicant were also undertaken as a performance improvement plan but again no improvement made – on 3 August 2016 the applicant was asked to attend a meeting where he was given a termination letter – applicant responded to letter on 8 August by showing up to work – respondent advised applicant his employment was terminated on 3 August 2017 – Commission satisfied genuine reason for dismissal based on belief that applicant was incapable of perceiving or achieving an acceptable level of work performance – satisfied that for nearly a year the respondent sought to communicate their performance expectations and provide opportunity for applicant to improve and respond to concerns raised – Commission found dismissal not harsh, unjust or unreasonable – application dismissed. Etienne v FMG Personnel Services P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – costs – ss.390, 394, 400A, 401, 604 Fair Work Act 2009 – Mrs Sologinkin had her application for an unfair dismissal remedy dismissed by the Commission on grounds her dismissal was not harsh, unjust or unreasonable – Coty made an application for costs against Mrs Sologinkin on the grounds that it should have been reasonably apparent that her application had no reasonable prospect of success – Coty also made an application for costs against Mrs Sologinkin’s representative Australian Dismissal Services on the grounds that they caused Coty to incur costs through an unreasonable act or omission – the Commission considered the principles of when an application is made without reasonable cause summarised in Keep v Performance Automobiles and found that Mrs Sologinkin had a reasonably arguable case given her lengthy unblemished service and apology she had sent to the client – Coty alleged that Australian Dismissal Services had caused Coty to incur costs due to an unreasonable act or omission in failing to settle the matter based on an offer from Coty – the Commission found that given Mrs Sologinkin had an arguable case it was not unreasonable to reject the offer – application for costs dismissed. Sologinkin v Cosmetic Suppliers P/L t/a Coty
June 2, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission determined that the application for approval of the MTP Enterprise Agreement 2016 be dismissed because the Commission was not satisfied that the employees who voted for the Agreement were covered by it – appellant submitted that the Commission wholly failed to understand and consider the evidence and the effect of the evidence at first instance – Full Bench held the erroneous construction of the coverage provision of the Agreement resulted in an incorrect conclusion that the requirements in s.186(2)(a) of FW Act had not been met – permission to appeal granted – appeal upheld – Decision at first instance quashed – application for approval of the Agreement remitted to Lee C. Appeal by Thiess P/L against decision of Roe C of 6 February 2017 [[2017] FWC 718] Re: Construction, Forestry, Mining and Energy Union
