Robert Etienne has had his unfair dismissal claim against FMG Personnel Services Pty Ltd knocked back by Fair Work Deputy President Binet in Perth.
May 30, 2017
A s.120 (Enterprise Agreement Variation) application by Australian Health & Nutrition Association Limited T/A Sanitarium Health & Wellbeing Company for its Sanitarium Health and Wellbeing Company Cooranbong Trades Enterprise Agreement 2014 has been approved by Commissioner McKenna in Sydney on 25 May 2017.
May 30, 2017
Over 64 unfair dismissal/employment contract dispute applications will be heard in the Fair Work Commission today. The full list is: Plate Marketing Pty Ltd (Addison), Active Kids Group (Harrouk), Munmorah Bowling Club (Hopley), Norco Co-operative Limited (Tarlinton), Bendigo Regional YMCA (Farley), Gilo Fashion Pty Ltd (Harvey), Thompson Healthcare Pty Ltd (Adamopoulos), Coldmaster Industries (Hardacre), Hellenic Patisserie & Gelato Bar (Tamborrino), Night Till Light Productions (Watson), Parabellum International Pty Ltd (Bolton, Mallard, Stonehouse, Wood), Marwin Cleaning Services Pty Ltd (McAuley), Pacific National Pty Ltd (Newham), Valspar Paint (Australia) Pty Ltd (Blackhurst, Jenkins, Milburn, Szczepny, Tantuccio, Taylor), Glengollan Village (Henderson), Jobco Employment Services Inc (Spilling), National Jet Systems Pty Ltd (Kinnaird), The Trustee for Master Distributions Unit Trust (Crowe), Austing Engineering Ltd (Hansen), The High Gate Group (Heydon), James Fisher Australia Pty Ltd (Appenzeller), Puch Construction & Buildings Pty Ltd (Wheeler), Senwill Civil Pty Ltd (Golding), Karimbla Constructions Services (NSW) Pty Limited (Saad), Woolworths Limited (Fitzgerald), Avopiling (Ashton), Raymond Sampson ATF the Hedland Food Unit Trust (Ellis), Summit Rural (WA) Pty Ltd (Ellis), Summit Rural (WA) Pty Ltd (Johnson), Patrick Projects Pty Ltd (King, Strauss), Alcoa of Australia Limited (Tomlinson), Sims Group Australia Holdings Ltd (Zornada), City Kalgoorlie-Boulder (Long), Billabong Community Early Learning Center (Patel), Ausdrill Northwest Pty Ltd (Johnston), Rokon Pty Ltd (Karakostov), Commonwealth Bank of Australia (Luoing), MedHealth Pty Limited (Morrow), Sunraysia Murray Group Training (Ryan-Dengate), Monash Health (Nowoweiski), Tasmanian Ports Corporation Pty Ltd (Gee), Monarch Hotels Pty Ltd (Clarke), J.L Johnson & J.R McIntyre (Harris), Palm Island Aboriginal Shire Council (Simpson), Groote Eylandt Mining Company Pty Ltd (Langtree), Australian Leisure and Hospitality Group Pty Ltd (Whipps), Airport Retail Enterprises Pty Ltd (McKimmin), Regent Taxis Limited (Thompson), Senwill Civil Pty Ltd (Golding), Viterra Operations Pty Ltd (Shearing), Craig Mostyn Group Food & Agribusiness (Malho), Teys Australia Naracoorte (Bilsten), Newspot Holdings Pty Ltd (Moore), United Discount Chemists Pty Ltd (Girolamo), MedHealth Pty Limited (Morrow).
May 29, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – initial matter related to an application under the Dispute Resolution Procedure of the TNT-TWU Fair Work Agreement 2014-2017 – at first instance the Commission found that respondent was fit to perform the inherent requirements of the role of a Bulk Driver with the appellant – found respondent should be returned to his role immediately with appropriate ‘work hardening’ as recommended by Dr Cunneen, Occupational Physician – appellant applied for permission to appeal – decision stayed pending the outcome of the appeal – grounds for appeal included that the Commission: incorrectly applied the relevant principles in determining the inherent requirements of the role of Bulk Driver with TNT; misunderstood and, in a number of instances, did not consider the evidence about the role of Bulk Driver in the context of TNT’s operations; and erred in assessing Dr Cunneen’s evidence – decision of Full Bench minority – the heart of the appeal was whether the Commission correctly applied and construed the relevant principles in assessing whether the respondent was fit to perform the inherent requirements of the role of Bulk Driver – permission to appeal should be granted in this matter – Full Bench minority of the view that the appeal raised important questions concerning the application and construction of the relevant principles in assessing whether the respondent was fit to perform the inherent requirements of the role of Bulk Driver with the appellant – decision under appeal is of a discretionary nature – House v The King considered – in assessing the inherent requirements of the role as a Bulk Driver, the Commission accepted that reasonable accommodations, by way of lifting aids, must be considered – having regard to Boag, Full Bench minority satisfied that the Commission considered modified duties in concluding what formed part of the inherent requirements of the role of a Bulk Driver – Commission found that the lifting aids were inclusive of the substantive role of a Bulk Driver, despite there being no certainty that such would be available at a customer’s site – held the Commission’s assessment of the inherent requirements of a Bulk Driver was always inclusive of whether reasonable accommodations were to be provided to the respondent – such a consideration may be relevant if an employee is redeployed to undertake alternative duties, however, it is not the starting point in determining the inherent requirements of a particular role, in doing so, the Commission fell into error – Full Bench minority also held the medical evidence of Dr Cunneen referenced and relied upon by the Commission did not establish that respondent was able to lift at least 25kg – the medical evidence of Dr Cunneen stipulated that if the appellant were to lift more than 20kg unaided, this would pose significant risks of further work-related aggravations to his pre-existing lumbar spondylosis – as such, the Commission erred in reaching this conclusion which formed part of the basis upon which she found that the respondent could perform the inherent requirements of a Bulk Driver with the appellant – satisfied there was an appealable error in the House v The King sense – Full Bench minority satisfied that the appeal must be upheld – decision of Full Bench majority – not in dispute that respondent had a back injury in 2005 – respondent said it was a prolapsed disc – he had surgery in 2006 and was certified fit to return to work in 2006 – respondent gave evidence that he had no further issues with his back injury – he suffered a further but unrelated back injury in 2010 and that injury was resolved – respondent had suffered an injury to his knee in 2014 and had been stood down from work – he was advised in 2014 that he would not be able to return to work until he provided a medical clearance that he could fulfil the complete duties of his role – he had a total knee replacement in April 2015 and sought to return to work in September 2015 having obtained a medical clearance – the appellant advised the respondent at this time that they required a further assessment to ensure he could return to his normal role – he was required to undertake a functional assessment and a fitness for duties assessment – as a result of those assessments the appellant concluded that it had reasonable concerns about the respondent’s ability to safely carry out the inherent requirements of his role – in March 2016 the TWU notified a dispute to the Commission – dispute resulted in the decision at first instance – Commission will grant permission to appeal only if it is in the public interest to do so – decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly – in considering the inherent requirements of the position, the Commission considered extensive documentation from the appellant, and the submissions of both the appellant and the respondent – Full Bench majority held the Commission properly concluded that the correct approach to determining inherent requirements was to ‘objectively determine what the inherent requirements of a position are on a consideration of the evidence which includes the terms on which a person is employed, the job that they undertake as well as relevant surrounding circumstances’ [Christie] – consider the Commission did give proper and due consideration to the relevant surrounding circumstances – do not discern any error in the approach of the Commission to the determination of the inherent requirements of the position – the Commission properly identified the relevant law and considered the submissions and evidence before her in accordance with it – satisfied that the Commission’s conclusion about the inherent requirements of the position was reasonably open to her on the evidence and there was no appealable error in her approach – appellant submitted that in rejecting some of Dr Cunneen’s evidence the Commission ignored or did not appear to properly consider a number of important facts – Full Bench majority not able to identify any error in the Commission’s assessment of the medical evidence – given the findings about the inherent requirements of the position the evidence was not inconsistent with the Commission’s conclusion that Mr Martin could in fact perform the inherent requirements of the position – Full Bench majority satisfied that the factual findings made by the Commission were available to her on the evidence before her – not satisfied that the matter raises issues of importance and general application – further not satisfied that the decision was attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave was refused – permission to appeal refused – appeal dismissed – stay order issued in this matter set aside. Appeal by TNT Australia P/L t/a TNT against decision of Spencer C of 20 January 2017 [[2017] FWC 440] Re: Martin
May 29, 2017
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – Statement dealing matters concerning ‘payment of wages’ terms in modern awards – on 1 December 2016 Full Bench issued decision dealing ‘payment of wages’ issues in modern awards (December 2016 decision) [[2016] FWCFB 8463] – main issues dealt with in December 2016 decision were: timing of payment of wages; timing of payment on termination of employment; and accrual of wages and other amounts – issues related to penalties for late payment of wages and annual leave loading have been determined – a claim made by Restaurant and Catering Industrial (RCI) in relation to removing a restriction on the days for payment of wages in respect of the Restaurant Industry Award 2010 was referred to the Award stage of the review – December 2016 decision set out provisional views and model terms in respect of issues related to timing of payment of wages and timing of payment on termination of employment – Full Bench called for further submissions in relation to these issues, and also called for further submissions to be filed in respect of issue related to accrual of wages – a number of submissions were received from parties – at 23 March 2017 hearing Full Bench noted that there appeared to be a measure of agreement between parties about some important matters of principle – Statement issued 26 April 2017 identified areas of agreement and disagreement [[2017] FWCFB 2290] – purpose of 4 May conference was to provide parties with opportunity to identify which areas were agreed and those that may require determination – at conference, parties confirmed there is general agreement in a number of areas – timing of payment of wages – provisional view expressed in December 2016 decision was that all modern awards should include a term providing for method and frequency of payment as well as placing a limit on payment in arrears – Full Bench also considered that there was utility in establishing a model ‘payment of wages and other amounts’ award term – timing of payment on termination of employment – in Statement published 14 October 2016 [[2016] FWCFB 7455], Full Bench expressed some provisional views in respect of this issue – in December 2016 decision, Full Bench confirmed their provisional view that each modern award should provide for payment of wages and other amounts owing to an employee on termination of employment – such term should also prescribe timeframe within which such termination payments are to be made – Full Bench also confirmed their provisional view that there is utility in a common ‘payment on termination’ provision across all 122 modern awards – accepted that each modern award is to be reviewed in its own right and there may be sound reasons for departing from model term in a particular modern award – accrual of wages and other amounts – December 2016 decision outlined an issue in relation to accrual of wages and other amounts, in that award provisions do not expressly deal with accrual of payments – s.323 FW Act deals with method and frequency with which employers must pay ‘amounts payable to the employee in relation to performance of work’, and appears to have effect that such amounts must be paid no later than one month after accrual – however s.323 does not specify when ‘amounts payable to the employee in relation to the performance of work’ become payable – December 2016 decision noted academic commentary suggested that, absent express provision for accrual in an award, if wages are required to be paid periodically under the award (for example, weekly, fortnightly or monthly) then they will be taken to accrue with at least the same frequency – Full Bench directed parties to file further written submissions regarding this issue – submission received by Irving and Stewart proposing insertion of a new default term into all modern awards dealing with the accrual of wages ‘on a day to day basis’ unless industry circumstances required modification of default wording – appears to be general agreement that awards should prescribe how wages accrue, but this general issue requires further discussion – next steps – agreed interested parties will have direct discussions relating to timing of payment of wages model term – parties requested period of seven weeks to confer with affiliates and then forward a position to opposing side – matter will be listed for mention before President at 10am on Wednesday 5 July 2017. 4 yearly review of modern awards – Payment of wages
May 29, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – decision at first instance determined dismissal unfair – appellant appealed on grounds of both error in law and fact – Full Bench found in public interest to grant permission to appeal in relation to grounds that raise issue concerning import and application of Pettifer – Tasports submitted Pettifer stood for principle that where a host employer who had an employee of a labour hire company removed from site that caused a necessarily valid reason for dismissal from labour hire company based on employee’s capacity for purpose of s.387(a) FW Act – Full Bench did not accept that submission – whether there is a valid reason depends on all circumstances in case – Pettifer applies principle stated in Adecco to a particular factual scenario – found a number of factual matters distinguished this matter from Pettifer including contract between host and labour hire provider, labour hire provider simply adopting host employer view without forming own independent conclusion as to valid reason and lack of investigation into redeployment options – in decision at first instance, approach in Adecco adopted which was correct and consistent with Pettifer – no appealable error found [House v King] – appeal dismissed. Appeal by Tasmanian Ports Corporation P/L t/a Tasports against decision of Wells DP of 4 January 2017 [[2017] FWC 31] Re: Gee
May 29, 2017
CASE PROCEDURES – confidentiality – appeals – ss.593, 594, 604 Fair Work Act 2009 – appeal of Commission decision not to grant application to suppress all evidence, materials and transcripts in proceedings, including any decision issued – permission to appeal only granted if in public interest – this matter raised important questions concerning the principles of open justice – Full Bench concluded public interest is enlivened – permission to appeal granted – presumption in s.593(2) of the Act that hearings must be held in public accords with principle of open justice (Seven Network) – departure from principle only justified where observance frustrates the administration of justice by unfairly damaging some material private or public interest – potential embarrassment no justification for suppressing the matter by way of an ongoing confidentiality order – by bringing their dispute to the Commission, parties accepted necessity to conduct proceedings openly and transparently to uphold confidence in the Commission – Full Bench not satisfied there should be a departure from principles of open justice – appeal dismissed – stay order revoked. Appeal by United Firefighters’ Union of Australia against decision and order of Wilson C of 27 March 2017 [[2017] FWC 1708] and 28 March [PR591374] Re: Metropolitan Fire and Emergency Services Board
May 29, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – extension of time – s.773 Fair Work Act 2009 – applicant had been employed by Queensland public service – dismissed on 7 November 2013 – pursued application for unfair dismissal to Queensland Industrial Relations Commission (QIRC) – submitted she was unaware of her right to refer the matter to the Fair Work Commission (the Commission) until 22 June 2016 – Commission held evidence indicated that applicant did know earlier that she had the opportunity to pursue application to Commission, but instead chose to exhaust her rights in the Queensland system, which were exhausted in November 2015 – applicant previously advised that an employee must not make both an unlawful termination application to the Commission and an application under Queensland state laws in respect of the same termination – Commission held that there were not exceptional circumstances to warrant granting applicant an extension of time – applicant did not have reasonable explanation for the whole of the delay and apart from disputing the dismissal none of the other criteria weigh in favour of finding exceptional circumstances – accepted the dismissal has caused applicant emotional and financial distress, however this was not a case where the denial of an extension of time meant that applicant would be denied the opportunity to have her grievance about her dismissal heard and determined; she had that opportunity when she made her case before the QIRC – application dismissed. Wanninayake v State of Queensland
