TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – ss.385, 387, 394 Fair Work Act 2009 – respondent placed applicant on sick leave – respondent implemented return to work plan – applicant expressed concern about anticipated return to any work under direct supervision of supervisor – respondent reacted to applicant concerns by ceasing the return to work plan and instructing applicant to leave workplace – respondent decided applicant was to return to work and report to a new manager – applicant did not return to work and provided medical certificate – respondent wrote to applicant seeking advice about applicant’s medical condition and prognosis for return to work – applicant’s medical practitioner responded to letter advising applicant had no current capacity to work – respondent sent a letter to applicant advising that it intended to make a determination of the applicant’s ongoing employment following more than a three month absence on unpaid leave – respondent advised it was considering deeming the applicant medically unfit for a return to work resulting in termination of employment – advised applicant able to submit any further material regarding capacity to return to work by certain date – applicant’s solicitor requested a one week extension in order to submit further information – respondent granted extension – applicant’s solicitor requested further extension to submit material – respondent denied request – sent letter of dismissal by email advising that it had formed view that applicant had refused to work – applicant submitted unfair dismissal on basis of procedural unfairness – respondent submitted applicant unable to perform inherent requirements of the role – Commission found applicant’s medically certified absence did not represent any established refusal to perform work but confirmed incapacity to work – found that actual reason for dismissal may have involved frustration of employment due to extended absence – held there can be a valid reason for dismissal even if reason not properly or accurately articulated – Commission unable to establish valid reason for dismissal in absence of any evidence from decision maker – respondent provided no explanation as to why second request for an extension of time was refused and respondent proceeded to dismiss applicant when information about applicant’s medical prognosis was important – Commission held that applicant was not provided with a proper opportunity to respond – found denial of natural justice in dismissal without opportunity of a meeting – found method of communicating dismissal by email was harsh – applicant’s claim for unfair dismissal upheld – compensation appropriate remedy – ordered an amount equivalent to one week’s remuneration. Finnegan v Komatsu Forklift Australia P/L
May 22, 2017
CASE PROCEDURES – evidence – production of documents – ss.590, 789FC Fair Work Act 2009 – application sought orders to stop bullying at work – Dr McShane made application for orders for production of documents – two orders issued, one directed at Professor Gopalan at Deakin University (Deakin) and one directed at Ms Champness at University of Newcastle (UoN) – orders sought production of investigation report into allegations of misconduct by Professor Gopalan – Deakin and UoN objected to production – immediate question whether report had any relevance in determining whether Professor Gopalan’s behaviour towards Dr McShane at work was unreasonable and created risk to health and safety – report related to investigation of matters at UoN – Dr McShane did not say that he was subject to bullying behaviour because of any behaviour that occurred at UoN or behaviour engaged in by Professor Gopalan while at UoN – findings Commission must make in relation to substantive application relate to behaviour that occurred while Professor Gopalan was employed by Deakin – Commission found substantive task weighs against finding that report was relevant to matters to be ultimately determined by Commission – report does not need to have direct relevance to the finding that must be made but must have apparent relevance – further ground on which report might not be required would be if grant of order would be oppressive – terms of reference for report went beyond behaviour of Professor Gopalan and other persons named in report may have not yet had chance to respond – Commission held this alone would not provide basis to grant application to revoke order – Commission not satisfied test of relevance met – application by Deakin and UoN to set aside orders requiring production of report granted. Re: McShane
May 22, 2017
INDUSTRIAL ACTION – termination of protected industrial action – s.424 Fair Work Act 2009 – application made by the Minister for Industrial Relations for the State of Victoria (the Minister) that order be made terminating protected industrial action notified by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Trades Union of Victoria branch) (ETU) against AGL Loy Yang P/L (AGL) that was notified by AGL Loy Yang P/L in a Notice of Employer Response Action served on the ETU – industrial action notified by the ETU related to employees who would be covered by a proposed enterprise agreement to replace the terminated Loy Yang Power Enterprise Agreement 2012 – parties have been negotiating for over two years – intention to take industrial action in form of indefinite number of consecutive one hour stoppages on performance of all work commencing on 15 May 2017 – AGL notice served on ETU declared intention to lockout all employees who would be covered by proposed agreement if the industrial action foreshadowed by the ETU was engaged in by any AGL employee – application brought by the Minister on basis that industrial action notified in both ETU Notice and AGL Notice was protected action that was threatened, impending or probable and was threatening or would threaten; to endanger the life, personal safety or health, or the welfare of the population or of part of it; or to cause significant economic damage to the Australian economy or an important part of it – Commission satisfied, and not disputed by any party, that protected industrial action as described in the Notices was threatened, impending or probable – found industrial action would almost immediately impact power supply to Victoria and have implications for South Australia – satisfied industrial action would, if taken, threaten to endanger the life, personal safety or health, or the welfare of the population or part of it or cause significant damage to the Australian economy or an important part of it, being at least in the State of Victoria – considered factors outlined in Essential Energy and adopted approach taken in Esso – all parties submitted industrial action should be terminated rather than suspended – considered extensive bargaining over two years after which dispute appears to have remained intractable – termination of protected industrial action will see parties move on from current deadlock – termination will give rise to conciliation and arbitration pursuant to s.266 of the FW Act which will see the current bargaining round come to an end – Commission decided to terminate protected industrial action notified by ETU and AGL scheduled to commence on 15 May 2017. Minister for Industrial Relations for the State of Victoria v AGL Loy Yang P/L t/a AGL Loy Yang and Ors
May 22, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for permission to appeal against decision where Commission found appellant’s dismissal a case of genuine redundancy and dismissed the application – appellant’s submissions attempted to reargue the case and sought a different outcome – Full Bench applied Coal & Allied – whether in public interest to grant permission to appeal – established it was not open to an appeal bench to substitute its view of the matter that fell for determination at first instance – held it was not in public interest to grant permission to appeal – permission to appeal refused. Appeal by Williams against decision of Wilson C of 20 March 2017 [[2017] FWC 281] Re: Northern Land Council
May 22, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – permission to appeal was sought by Kentz P/L on a decision relating to the interpretation of clause 19(a) of the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement (Agreement) – Full Bench found that decision in the first instance failed to consider all of the relevant evidence – in the public interest to grant permission – permission to appeal granted – the Full Bench found that the clause in dispute was ambiguous and applied Golden Cockerel in admitting evidence of the surrounding circumstances when the agreement was negotiated – on considering the evidence the Full Bench found that the reference in the clause to an ‘approved insurer’ was a reference to an income protection insurance product of the named insurance bodies or to another insurance product which is agreed upon by both parties to the agreement – decision under appeal quashed to the extent that it dealt with clause 19(a). Appeal by Kentz P/L against decision of Bissett C of 2 February 2017 [[2017] FWC 376] Re: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
May 22, 2017
CASE PROCEDURES – referral to Full Bench – ss.225, 615A Fair Work Act 2009 – Ms Vickers made application for termination of Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011 (Agreement) – Ms Vickers sought termination of Agreement to take effect retrospectively, from 31 May 2014 – Ms Vickers applied for termination application to be referred to Full Bench for determination pursuant to ss.582, 615 and 615A of FW Act – Coles, SDA and AWU opposed application – Ms Vickers submitted referral of termination application would be in public interest – Collinsville Coal Operations considered – Commission found number of employees to which Agreement applied is so large as to make question of termination of Agreement a matter of public significance because of its potentially broad economic and commercial effects – found effect of backdated termination of enterprise agreement raised complex legal and practical issues particularly in relation to employees who have been paid aboveaward rates and other benefits – found cases of particular significance are from time to time heard by Full Benches even where they involve receipt of extensive evidence and there is no reason why allocation to Full Bench should result in delay in conduct of hearing – Commission directed termination application (AG2016/3797) be referred to Full Bench for hearing and determination. Re: Vickers
May 22, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute in accordance with the Victoria University Enterprise Agreement 2013 (the Agreement) – applicant sought an interim order restraining respondent, until further order, from determining any expression of interest in voluntary separation, change of employment arrangements, or application for a role in the First Year College – applicant at liberty to re-apply for an interim order at any stage in proceedings – in determining whether to make an interim order, Commission must consider whether there was a serious question to be tried, and whether the balance of convenience favoured granting the interim order – Commission held there was no serious issue to be tried – held that individual academics may have legitimate issues which warrant them not being held to elections that they might make, or which raise issues of research requirements in Schedule 9, or some other issue which is of a more general nature involving many academics such as forced redundancies, or other issues – respondent at liberty to make applications in relation to such issues, or others, including interim relief, to some degree this application may be premature – in relation to the balance of convenience, applicant refers to the difficulty of reversing acceptance of voluntary separation or acceptance of jobs, and that academics should not be held to their election, and other matters – respondent refers to the substantial cost impacts of a delay to implementation of the First Year College, and the overall ‘precarious position of the University’ – Commission satisfied that respondent is in some financial difficulty, and that a delay in the introduction of the new First Year College would increase costs – Commission held the balance of convenience favours the respondent. National Tertiary Education Industry Union v Victoria University
May 22, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute whether employee had been correctly paid for redundancy and long service leave (LSL) under the Air Liquide Australia Limited/Botany Plant Enterprise Agreement 2012 (the Agreement) – at issue were calculations on basis of annualised salary versus ‘ordinary hours’ as contained in the National Employment Standards (NES) and the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) – applicant submitted clause 29 of the Agreement was clear that redundancy was calculated on the basis of the Agreement annualised salary rate – respondent submitted their calculations were based on 38 ordinary hours per week as the annualised salary incorporated an overtime component – the long service component calculated as ‘ordinary remuneration’ as defined in the Long Service Leave Act 1955 (NSW) – where a term is ambiguous the general approach should consider the objective framework of facts within which the contract came into existence, and parties’ presumed intention in this setting [Golden Cockerel] – Commission found meaning of redundancy clause clearly identified the annualised rate as basis for calculation despite tension between the NES and the Award – the applicants calculation method was appropriate – the LSL calculation was more difficult – on balance the proper Agreement interpretation was the application of the same calculation based on the context of the Agreement, the operation of the annualised salary and consistency of approach – applicant’s claim granted. Moffat v Air Liquide Australia Ltd
