ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance it was found that the additional competencies that Freight Operators were being trained in did not fall within the scope of the ‘role for which they are employed’ for the purposes of clause 29.4 of the Aurizon Train Crew and Transport Operations Enterprise Agreement 2015 (the Agreement) – that they should not be compensated for the relevant tasks at the rate equivalent of a Traincrew Support employee for the time that they were carrying out the tasks – that they should not be compensated for the period of time they were performing the relevant tasks based on the work value of those tasks as this was not pursued – that they should not be back-paid for the period of time they had been carrying out the tasks – therefore Commission held that the claimed remuneration of the Higher Grade Allowance was not applicable to the subset of duties sought to be undertaken – that since the extra duties the Freight Operators were being directed to perform did not fall within their classification, the direction was not in accordance with the applicable Agreement provisions – the grounds of appeal essentially related to central issue of whether the additional competencies for which Freight Operators were being trained fell within the scope of the ‘role for which they are employed’ for the purposes of clause 29.4 of the Agreement – permission to appeal must not be granted unless in public interest – public interest test is discretionary and involves broad value judgment – Full Bench observed the Commission had regard to context and purpose of Agreement by referring to clauses 29 and 42 – in considering context and purpose the Commission noted the additional tasks Freight Operators were being asked to perform – Full Bench found the Commission adopted an orthodox approach in construing the context and purpose – Commission had not erred in finding that competencies did not fall within the scope of the ‘role for which they are employed’ – Commission had not erred in finding that the Agreement was ambiguous when applying the principles in Golden Cockerel – Commission undertook an orthodox approach in her application of those principles and her application was not disharmonious when compared with other decisions dealing with similar matters – Full Bench found no arguable case of error in relation to any of the grounds of appeal – concluded that appeal did not attract public interest after taking into account considerations in GlaxoSmithKline – not satisfied there is a diversity of decisions at first instance so that guidance from appellate body is required, nor that appeal raises issues of importance and/or general application – also not satisfied decision at first instance manifests injustice, or result is counterintuitive, nor that legal principles applied were disharmonious when compared with other decisions dealing with similar matters – permission to appeal refused. Appeal by Aurizon Operations Limited t/a Aurizon against decision of Spencer C of 20 February 2017 [[2017] FWC 955] Re: Australian Rail, Tram and Bus Industry Union
June 2, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – initial matter filed by AWU, which was intervened by AMWU in resolving a dispute under the Bluescope Steel Port Kembla Steelworks Agreement 2015 (the Agreement) – at first instance the Commission found BlueScope had not complied with the introduction of change process contained in clause 35.2 of the Agreement – Commission determined the consultation process for the maintenance employees was not fair, comprehensive or genuine – recommended parties return to consultation process regarding proposed changes – appellant contended the Commission did not have the power to prevent or halt the decision to introduce changes only the power to arbitrate about its implementation – contended the Commission erred by not addressing relevant test in clause 35.2.1(c) – appellant further contended that it adequately carried out its consultation requirements – argued that the Commission erred in finding the consultation that took place was not fair, comprehensive or genuine for maintenance employees – powers of appeal only exercisable if there is an error by the primary decision maker [Coal & Allied] – if it is in the public interest to do so the test is a discretionary one involving broad value judgement [GlaxoSmithKline] – Full Bench not satisfied there was an arguable case of error in any of the appellant’s grounds for appeal in relation the Decision – not satisfied it would be in the public interest to grant permission to appeal – permission to appeal refused. Appeal by BlueScope Steel (AIS) Port Kembla against decision of Riordan C of 21 February 2017 [[2017] FWC 335] Re: The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Anor
June 1, 2017
A 24 applicant trickle will test the minds of Fair Work Commissioners today. The unfair dismissal/labour dispute list is: Teekay Shipping (Australia) Pty Ltd (Wood), TTG Transportation Technology Pty Ltd (Mackenzie), Forster Tuncurry Memorial Services Club Limited (Sweeney), Woolworths Limited related body corp of (Marangon), Scribal Group Pty Ltd (Lindley), Maryland Care & Early Education Centre (Connell), Wax Converters Textiles Pty Limited (Nichols), Yoga Loft (Kelly), Community Environment Network Inc (CEN) (Bailey), Shining Knight Facility Services (Reid), The Trustee for The KG Service Trust (Scott), Nortale Pty Ltd (Abela), Orana Incorporated (Thompson), 360 Gradi Pty Ltd (De Marzi), Coca-Cola Amatil Limited (Braughton), Stumpf, Eric Simon (Costin), Australian Diabetes Educators Association Limited (Oddy), Australian Federal Police (Drummond), Department of Education and Training (Decker), Australian Tallow Producers Pty Ltd (Garang), Amalgamated Pest Control Pty Ltd (Law), Win Services Pty Ltd (Mihaere), Digital Skies Group Pty Ltd (Harding), The Department of the Prime Minister and Cabinet (Dubois).
May 31, 2017
Forty-two unfair dismissal and labour dispute applications come before the Fair Work Commission today. The full list is: Wollongong Asphalt Pty Ltd (White), Australian and Air Force Canteen Services (Shamim), Serco Australia Pty Ltd Darwin IDC (Onah), Corrective Services NSW (Sheather), Toyota Motor Corporation Australia Ltd (Obazee), BiltBeta Constructions (De Maria), Active Kids Group Pty Ltd (Harrouk), Lumlan and Associates Services (Levalds), Sodexo (Culpitt), Southern Ports Authority (Murray), Town of Victoria Park (Wilson), Global Care Incorporated (Granito), Jewish Care Victoria Inc (Hantke), Linfox Australia Pty Ltd (Grey), Emergency Services Telecommunications Authority (Hellyer), Thornlie Christian College Inc (Ialeggio), Somerville Retail Services Pty Ltd (Delos Santos), Cranbourne Transit Pty Ltd (Guner), Broadspectrum (Australia) Pty Ltd (Hubeek), Spotless Facilities Services Pty Ltd (Hambridge), The Commonwealth of Australia (Department of Immigration and Border Protection) (Gibbens), Cafe SA Pty Ltd (Kurda), Serco Australia Pty Ltd Darwin IDC (Onah), Game Traffic and Contracting (Faralla), Australian Skills Quality Authority (Byrnes), National Australia Bank Pty Ltd (McAvaney), Serco Immigration Services (Anderson), Rail Commissioner (Williams), Coca-Cola Amatil Limited (Braughton), Virgin Australia Airlines Pty Ltd (Ingall), eBlueprint (Nagendra), Nestle Australia Ltd (Furlong), Finance Sector Union of Australia (Johnson), ISS Facility Services Australia Ltd (Baltas), Westpac Banking Corporation (Santos), Thompson Healthcare Pty Ltd (Adamopoulos), Celesty Family Trust Pty Ltd (Allan), Hibiscus Chinese Takeaway and Cafe Food (Chan), Uniting Agewell Victoria (Wakelam), Doutta Galla Aged Services Limited (Hussein), North Albury APCO (Hird), 360 Gradi Pty Ltd (De Marzi).
May 30, 2017
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
