TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – four applications for unfair dismissal remedy heard together – respondent raised jurisdictional objection that applicants were dismissed on grounds of genuine redundancy – applicants employed as emergency services officers – enterprise agreement applied to employment relationship – applicants submitted redundancies not genuine as only alteration was 13 per cent salary reduction not to job tasks or responsibilities – further submitted their roles continued to be performed by other newly appointed employees on the same terms and conditions but on lower salaries – respondent submitted reductions in its contract prices resulted in need to reduce costs – to reduce costs respondent undertook operational restructure – respondent argued Commission should adopt wide 11 view of the words ‘the employer no longer requires the person’s job to be performed’ to include remuneration – applicant argued a narrow interpretation be adopted which does not include remuneration – Commission found remuneration not a reason for redundancy as provided in explanatory memorandum or in FW Act – Commission found no reduction in responsibilities or tasks in applicants positions and no redistribution of tasks or responsibilities of applicants positions to other positions – not satisfied wide interpretation of FW Act supported by authority – Commission found words ‘person’s job to be performed’ in the FW Act refer to the functions, duties and responsibilities associated with the job only – genuine redundancy not made out – matter listed for future direction. Mallard and Ors v Parabellum International P/L t/a Parabellum International
May 29, 2017
CASE PROCEDURES – referring question of law – ss.156, 608 Fair Work Act 2009 – claim by the Australian Council of Trade Unions for paid family and domestic violence leave clause to be inserted into modern awards – background to immediate issue in matter, the ‘constitution issue’, was set out in the Statement of 28 April 2017 [[2017] FWC 2347] (April Statement) – written and/or oral submissions regarding constitution issue made by various employer/employee organisations and peak bodies – Commission expressed provisional view in April Statement that it should seek certainty in final disposition of matter AM2015/1 by referring questions of law to the Federal Court pursuant to s.608(1) of the FW Act – parties and any other interested persons were requested to provide submissions on provisional view and various matters outlined in the Attachment to April Statement – various parties lodged submissions – Commission decided to refer questions set out in the Attachment to the April Statement to Federal Court, with one deletion from statement of facts. 4 yearly review of modern awards–Family & Domestic Violence Leave Clause
May 29, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application lodged one day late on 4 April 2017 – applicant represented by Shine Lawyers – applicant’s representative provided written submission that due to Force Majeur, an Act of God and representative error application was delayed – representative unable to access office computers during flooding in Brisbane from Cycle Debbie – question of exceptional circumstances and timeliness of application [Nulty] – dispute in relation to actual termination date – Commission determined applicant has provided credible explanation for entire period of delay – satisfied applicant’s circumstances can be regarded as exceptional to support an extension of time – request for extension of time granted – orders issued. Hanson v Blueprint Global P/L
May 29, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was courier driver with respondent – respondent alerted to presence of competitor referred to as ‘Today’s Express’ from customers – respondent received an electronic message via WeChat group from customer expressing satisfaction for service provided by Today’s Express and respondent, whom she believed were operating in a joint arrangement – respondent requested copy of messages involving Today’s Express, which implicated applicant – respondent accused applicant of operating own company in competition to respondent – applicant denied allegation and requested proof – respondent forwarded copy of relevant WeChat messages to applicant – at subsequent meeting with respondent the applicant said he was entitled to do whatever he wanted outside work time – respondent summarily dismissed applicant – applicant challenged reason for dismissal and denied any of his activities with Today’s Express were inimical to the respondent – applicant submitted Today’s Express was not a company but a WeChat group operating in conjunction with another company as an agent for the respondent – applicant submitted real reason for his dismissal related to claims of alleged underpayment of wages, superannuation and taxation – respondent submitted there was a valid reason for dismissal as applicant was operating a rival company using respondent’s commercial and intellectual property without authorisation – Commission found evidence problematic as applicant had limited English skills and both applicant and respondent introduced statements from individuals who did not appear for crossexamination – Commission satisfied applicant involved in activities in direct conflict to respondent’s business interest which represented valid reason for summary dismissal – lack of proper documentation of the termination and allegations of underpayment and taxation breaches could not justify or mitigate the serious misconduct of applicant – allegations of underpayment should be pursued through alternative government agencies – found even if applicant had established dismissal was unfair, there was little prospect of remedy as applicant did not make efforts to find alternative employment and did not provide evidence to support assertion that mental and physical health problems impeded this pursuit – application dismissed. Jiang v C J Express Sydney P/L
May 29, 2017
TERMINATION OF EMPLOYMENT – application to dismiss by employer – premature application – ss.394, 586, 587 Fair Work Act 2009 – applicant made unfair dismissal application – respondent objected on basis that application made during notice period and prior to effective date of dismissal – applicant provided with one month’s notice of termination – respondent submitted that application was invalid as it was made prior to the effective date of dismissal – applicant submitted that termination date was the last day he physically attended the office – Commission raised Mihajlovic as authority that it has discretion to amend an application – applicant submitted that Commission should exercise discretion to waive the irregularity in form or matter in which application was made – respondent submitted that Commission should not exercise discretion – respondent submitted that Mihajlovic was authority that the Commission’s power to waive irregularities not ‘automatic’ and required consideration of all circumstances – respondent referred to Gee – Commission considered Mihajlovic – Commission found that arrangements were put in place when applicant notified of termination that may have led applicant to believe that his termination was with immediate effect – applicant was requested not to return to office and computer and phone were confiscated – Commission noted filing of application early had not prejudiced respondent – Commission exercised discretion in applicant’s favour. Cooper v Statseeker P/L t/a Statseeker
May 29, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a site supervisor – respondent objected on ground dismissal was genuine redundancy – applicant submitted he was not genuinely made redundant as majority of tasks he was required to perform still remain and are being performed by new site supervisor – applicant submitted he was covered by Road Transport and Distribution Award 2010 (the Award) and employer required to consult with employees about major change – respondent’s general manager submitted he was required to consider whether applicant’s position should be retained after the sale of one of the companies the site provided services to was sold – respondent submitted applicant’s redundancy resulted from a restructure and client’s request for greater operational assistance and a flexible driving resource – Commission found it was clear from the respondent’s evidence that a restructure of its operations resulted in a decision that the position was no longer required – respondent must also comply with any obligations under an applicable award or enterprise agreement to consult about the redundancy – no applicable enterprise agreement – Commission found the Award had no application to applicant – applicant argued it was reasonable he be deployed into another subcontractor position that undertook some of the duties of previous role – found position applicant referred to was not a position within the respondent’s enterprise or that of an associated entity – found there was no obligation on the respondent to consider terminating the applicant’s employment and offer him a subcontractor position – Commission found applicant’s termination was a result of a genuine redundancy – application dismissed. Corcoran v The Trustee for the Express Parts Trust t/a On Time Group of Companies P/L
May 29, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – modern award coverage – ss.382, 389, 394 Fair Work Act 2009 – jurisdictional objections – not protected from unfair dismissal – not covered by modern award – redundancy was genuine – applicant employed in business now operated by respondent since 1989 – applicant’s rate of earnings in excess of high income threshold – not covered by enterprise agreement – applicant submitted Real Estate Industry Award 2010 (Award) provided coverage – not disputed that respondent was relevantly covered by Award – respondent submitted applicant’s senior management position was beyond classifications in Award – Commission considered respondent’s witness evidence in cross-examination against witness statement – considered respondent’s list of applicant’s duties against indicative tasks for Property Sales Representative classification in Award – applicant submitted his focus was property sales for respondent – submitted he was instructed not to provide guidance to staff – respondent submitted remuneration paid was indicative of different character of applicant’s position compared to position contemplated by Award – Commission held that high levels of remuneration are indicative only of an employer’s view that the employee is valuable and a reflection of their success – held that remuneration does not reflect award coverage – found that applicant had no managerial responsibilities, no direct reports and little role in strategy and management of respondent – found that principal purpose of applicant’s position was to sell real estate – found that at time of dismissal applicant’s duties fell squarely within definition of Property Sales Representative classification of Award – satisfied that applicant covered by Award and protected from unfair dismissal – jurisdictional objection dismissed – application to proceed – question of genuine redundancy to be determined in conjunction with merits of application. Kaufman v John Lang LaSalle (Vic) P/L t/a JLL
May 29, 2017
INDUSTRIAL ACTION – order against industrial action – ss.414, 418 Fair Work Act 2009 – application by Mangoola for order that planned industrial action stop and not be organised by CFMEU – employees who work at Mangoola open cut mine (Mine) are covered by Mangoola Coal Greenfields Enterprise Agreement 2010 – Agreement passed nominal expiry date – protected action ballot order made 22 March 2017 in relation to employees at Mine – ballot conducted 13 April 2017 and results declared – various forms of industrial action authorised by majority of relevant employees – on 15 May 2017 CFMEU gave Mangoola written notice of intention of members of CFMEU who are employed by Mangoola at Mine to take protected industrial action (Notice) – Notice stated industrial action would be taken in form of ‘four stoppages of work each of two hours in duration that may be consecutive’ for each of seven consecutive days – whether Notice satisfies requirements of s.414(6) FW Act – EnergyAustralia Yallourn P/L v CFMEU considered – Mine Operations Manager gave evidence of safety related risks that would arise at Mine if work stoppages were undertaken – Commission not satisfied Notice ‘specifies the nature of the action’ within meaning of s.414(6) – held Notice did not give Mangoola opportunity to take appropriate defensive action, particularly to deal with safety risks – in order to prepare for all eventualities contemplated by Notice, Mangoola would have to plan on the basis that stoppages of work would take place during each of the three shifts (or parts of shifts) on each day the subject of the Notice, for between two and eight hours on each occasion, by CFMEU members in each Department across the Mine – Alcoa considered – Commission held in the particular practical applied circumstances of workplace at Mine, Notice would satisfy requirements of s.414(6) if it specified commencement time(s) of proposed action on each day specified in Notice – satisfied in particular circumstances of this case that in specifying ‘nature of the action’, it is necessary in context of action proposed by Notice to specify commencement time(s) of proposed action – held Notice did not satisfy requirements of s.414(6) – as a result, proposed action the subject of the Notice does not meet common requirements for industrial action to be ‘protected industrial action’ – it follows that Commission must make an order pursuant to s.418 FW Act that industrial action stop and not be organised – order made. Mangoola Coal Operations P/L v Construction, Forestry, Mining and Energy Union
