CASE PROCEDURES – evidence – production of documents – s.229 Fair Work Act 2009 – on 8 May 2017 an order was issued for the production of documents with respect to an application by The Maritime Union of Australia (MUA) for a bargaining order – the bargaining order related to negotiations for the proposed enterprise agreement between GrainCorp and the Australian Workers’ Union (AWU) – MUA asserted it was entitled to make the bargaining order to represent employees of GrainCorp who are members of the MUA – MUA sought a bargaining order that GrainCorp recognised and bargained with the MUA – application for bargaining order was opposed by GrainCorp and AWU – on application by the MUA, the Commission ordered the AWU to produce documents identifying financial members of the AWU in their Queensland branch currently employed by GrainCorp at port grain terminals in Queensland – AWU objected on grounds of relevance and confidentiality – GrainCorp supported AWU objection – AWU further objected on grounds that disclosing membership would disclose industrial strength to GrainCorp and adversely impact on AWU negotiations – Commission rescinded first order to address some concerns advanced by the AWU – criterion for production of documents from BHP Coal considered – Commission considered respective membership numbers of the AWU and MUA as relevant to whether a bargaining order should be exercised – order made to produce documents subject to a non-requirement to disclosure private or commercially sensitive or confidential information, excluding workplace and financial status of members within the AWU or AWUQ – documents to be made available for viewing by Counsel for the MUA – Counsel for the MUA to provide undertaking he will not disclose actual number of AWU or AWUQ members to the MUA only disclose if AWUQ has more or less members than MUA – whether information to be disclosed to GrainCorp will be dealt with at hearing of substantive application. Maritime Union of Australia, The v GrainCorp Operations Limited t/a GrainCorp
May 22, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief for unfair dismissal – applicant employed as a Federal Agent at the respondent’s ‘Crime Operations A’ office – applicant dismissed on 9 November 2016 for serious misconduct – breaches arose from applicant’s private life whereby stalking and imitation, falsification of time records, misleading an investigation and providing incorrect information to a court proceeding occurred – respondent submitted applicant’s breaches contravened its values – applicant denied some and conceded to some of the breaches – purported the dismissal was disproportionate to any error which may have occurred – submitted the investigation process was unfair and dismissal was not justified – respondent conducted a comprehensive two year investigation before dismissal – applicant concerned with the duration of the investigation – Commission found the duration did not depart from the respondent’s standard procedures and investigation process was appropriately robust but fair – found assessment of applicant’s conduct to be against high standards of a police officer – Commission considered all material and was satisfied each allegation was substantiated – satisfied applicant’s deliberate conduct was inconsistent with respondent’s professional standards and core values required of police officers – found valid reason for dismissal – applicant’s conduct had the potential to damage the reputation of the respondent – held dismissal was not harsh, unjust or unreasonable – application dismissed. Hackett v Australian Federal Police
May 22, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – matter previously subject of jurisdictional hearing – on 3 October 2016 Commission found applicant protected from unfair dismissal as minimum employment period had been completed – appeal of that decision dismissed by Full Bench – when employment contract initially engaged in respondent and applicant negotiated and agreed applicant had individual sales target of $1.3 million of solar products – applicant disputed the target was individual and argued the target was for entire staff base – Commission determined it was more likely the sales target was that of the applicant’s rather than the entire staff base – six months into employment contract applicant was well below end of year sales target – numerous meetings held between January 2016 and end of April 2016 to resolve issues of underperformance – issues also related to applicant’s unexplained absences and aggression towards other staff members – applicant provided with letter of termination on 29 April 2016 with four weeks’ notice and expected to work until 27 May 2016 – respondent largely relied on underperformance for reasons of dismissal – due to events on 26 May 2016, the day before the end of the employment contract, the respondent also relied on summary dismissal reasons for serious misconduct – respondent asserted applicant was involved in pushing a staff member while attempting to leave the office – this occurred after the staff member had asked if applicant had taken any company property home with him and requested he sign forms to formalise he had not taken any company property – applicant refused to sign forms and became increasingly frustrated and agitated – Commission considered whether the respondent genuinely held the belief the employee’s conduct was sufficiently serious to justify immediate dismissal, whether that belief was based on reasonable grounds and whether a reasonable investigation into the matter had been carried out [Ryman v Thrash] – regulation 1.07 of the Fair Work Regulations 2009 considered – Commission found conduct of applicant on 26 May 2016 could be categorised as sufficiently serious to justify immediate dismissal – found no question that respondent presented its concerns to applicant, indicated consequences for lack of remediation and gave opportunities for applicant to provide response – Commission determined applicant’s underperformance in relation to sales consistent with other dismissal part of the Code – application dismissed. Cole v Endless Solar Operations
May 22, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – dispute arising under Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (Agreement) – dispute concerned proposed termination of variable roster agreement for police officers employed in Water Police Squad – determination of dispute in first instance turned on proper construction of the Agreement – respondent in first instance sought to terminate variable rostered agreement pursuant to clause 34.8(b) which allowed it to be terminated where service delivery requirements were not being met as result of variable shift roster – Golden Cockerel considered – appellant submitted Commission erred by misconstruing expression ‘service delivery requirements’ in clause 34.8(b) of Agreement – Full Bench found Commission’s reasoning process did not disclose error and interpretation adopted was correct – found in context of Water Police Squad, evidence supported finding that regulatory and operational demands have changed over past decade – found it was open to Commission to make finding required by clause 34.8(b) that service delivery requirements were not being met as a result of variable shift roster – not persuaded it was in the public interest to grant permission to appeal – held appellant did not establish arguable case of error or that there were other considerations that warranted granting of permission to appeal – held Commission’s interpretation of clause 34.8(b) of Agreement was correct and findings of fact made were reasonably open – permission to appeal refused. Appeal by The Police Federation of Australia (Victoria Police Branch) against decision of Wilson C of 19 January 2017 [[2017] FWC 340] Re: Victoria Police/Chief Commissioner of Police
May 22, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant alleged his dismissal was unfair – dismissal reasons in respondent’s letter, in addition to the safety incident resulting in an injury as result of failure to follow procedure, included pre-existing written warning for failure to report safety breach, failing to provide satisfactory responses to serious issues and to show the required level of accountability – applicant said he had a record of regularly reporting potential health and safety risks – issue of prior warning – applicant believed he followed procedure for reporting a breach – reported incident in database entry rather than direct to a supervisor which led to the first and final warning – appeared from evidence was not made explicit to employees safety entries in the database not regarded as reporting an incident – Commission concluded warning did not warrant it’s significant weight in respondent’s later decision to dismiss the applicant – final safety incident resulted in injury whilst loading a truck – applicant followed respondent’s Loading and Unloading Standard Work Instructions (SWI) – applicant used forklift to load empty cage onto the truck – driver should not have been on truck giving guidance – respondent investigated the incident but applicant was not interviewed – at meeting applicant given show cause letter and advised he had breached the SWI, Code of Conduct and Our Charter Values – stood down – applicant’s support person requested but not provided with information relied upon to determine the allegations proven – not told how he was alleged to have breached the Code of Conduct or Charter Values – dismissed at meeting with respondent week later – applicant not given opportunity to respond to findings or allegations – applicant said his actions were a ‘momentary lapse of judgement’ – applicant’s evidence common practice prior to August 2016 for drivers to assist as ‘spotter’ with loading/unloading – driver assistance not a breach of previous procedure – not sure this clearly communicated to employees – SWI did not expressly say loading must cease when a driver is on the truck deck – Commission satisfied this created a degree of ambiguity about how the forklift operator and truck driver undertake loading – incomplete hazard form not entirely explained – investigation report found deficiency in SWI – SWI later amended – Commission found the safety incident a valid reason for dismissal but issues with the respondent’s processes tell in favour of a finding of unfair – Commission satisfied dismissal was harsh as inadequate account taken of applicant’s safety record – unjust due to improper characterisation of true circumstances of the incident and procedural ambiguities – unreasonable in concluding applicant acted deliberately – Commission ordered applicant reinstated by 29 May 2017 and payment of $10,578.60 for lost remuneration, taking into account earnings since dismissal and deduction of two months’ salary for lapse of judgement. Tomlinson v BHP Coal P/L t/a BHP Billiton
May 22, 2017
ENTERPRISE BARGAINING – scope order – s.238 Fair Work Act 2009 – application for scope orders by both Tasmanian Ports Corporation P/L t/a Tasports (Tasports) and The Australian Institute of Marine and Power Engineers (AIMPE) – Tasports operates towage services and employs Engineers (typically represented by AIMPE), Deckhands (typically represented by the MUA) and Tug Masters (typically represented by the AMOU) – in February 2017 Tasports sought a scope order to cover all employees employed in the marine towage operation under one enterprise agreement (the Tasports application) – employees subject of Tasports application currently covered by two separate enterprise agreements: Tasports Towage AMOU and MUA Enterprise Agreement 2013 (2013 AMOU and MUA Agreement) and Tasports Towage Enterprise Agreement 2013 – AIMPE (2013 AIMPE Agreement) (2013 Agreements) – in October 2016 AIMPE sought a scope order with same coverage as 2013 AIMPE agreement, being Tasports employees employed as engineers and covered by Marine Towage Award 2010 (AIMPE Application) – AIMPE application preserved scope of 2013 Agreements as agreement would not cover employees presently covered by 2013 AMOU and MUA Agreement – bargaining history included that in bargaining for the 2013 Agreements, Engineers reached agreement in advance of other unions, but other unions achieved better outcome regarding some allowances – memorandum of understanding then provided Engineers with parity for rates associate with allowances – 2013 Agreements substantially the same in content – three key differences: classifications (Engineers required to have certificate of competency); wages; and allowances – Tasports submitted 2013 Agreements in effect one agreement with history of bargaining showing interdependence – three Notices of Employee Representational Rights (NERR) issued by Tasports did not state intention to reach a single agreement, rather referred to a separate agreement with AIMPE for Engineers – Tasports gave evidence that despite NERRs it made decision to seek one agreement in December 2015 – submitted clauses specific to Engineers could be accommodated within single agreement and that this was Tasports’ intention – in principle agreement (except for scope) between Tasports and AIMPE reached in September 2016 – bargaining then unable to progress because Tasports waiting on information from AMOU and MUA – in October 2016 AIMPE advised of refusal to attend joint bargaining meetings and lodged application – in January 2016 Tasports expressed concerns to unions that bargaining not proceeding efficiently or fairly due to AIMPE position on scope and then lodged application in February 2017 – AIMPE submitted but for scope issue agreement could have been submitted for approval in September 2016 – extensive list of outstanding matters to be negotiated between MUA, AMOU and Tasports – uncontested that bargaining between Tasports and MUA not efficient – Commission satisfied ss.238(1) and (3) of FW Act satisfied in both applications – uncontested that AIMPE met good faith bargaining requirements for purpose of s.238(4)(a) – Commission did not accept AIMPE submission that Tasports not bargaining in good faith – satisfied Tasports created NERRS inconsistent with stated objective of single agreement on legal advice – not capricious or unfair conduct – issuing of NERRs which did not indicate Tasports intent to bargain for a single agreement not relevant to consideration of scope applications but rather application for approval of agreement – group of employees for AIMPE application fairly chosen and not relevant to Tasports application – Commission noted it can only make a scope order when order will promote fairer and more efficient bargaining than currently occurring – different scopes may both allow for fair and efficient bargaining and the relative degree of fairness and efficiently will be relevant to determining which is accepted – necessary to also consider what was the most reasonable scope in the circumstances – desire to protect qualifications of Engineers key reason advance by AIMPE in support of their preferred scope – Commission noted qualifications standards for Engineers regulated by Australian Maritime Safety Authority (AMSA) – commitment by Tasports that proposed single agreement will preserve all existing entitlements – issues concerning only one group able to be addressed in separate bargaining meetings – Commission satisfied qualifications issue could be satisfactorily dealt with under either scope – did not impact on efficiency of bargaining but relevant to fairness – Commission did not consider it unfair to include Engineers in single agreement as no intention by Tasports to change qualifications and regulation by AMSA – also insufficient evidence that shift to one agreement would deal with Tasports’ concern about elitist distinctions and silo effects flowing from separate agreements – Commission held consideration of this factor did not favour either scope – views of employees relevant consideration but little evidence – AIMPE’s evidence that delegates favoured separate agreement supported granting its scope order – consideration of Tasports’ objective to make cultural changes and adopt a ‘one Tasports’ approach favoured its scope order as likely to be easier with one agreement – Commission did not accept Tasports’ submission that history of bargaining suggested likelihood one agreement would be reached sooner than otherwise expected – MUA and AMOU long list of matters to be resolved – Commission found AIMPE’s commitment to not seek flow on of more beneficial entitlements which may achieved by MUA and AMOU in further bargaining a key consideration – decision as to which scope order to grant finely balanced – not satisfied AIMPE’s concerns about qualifications supported proposition AIMPE scope order would necessarily promote fairer and more efficient bargaining – AIMPE’s desire to be masters of own destiny also not a factor in support – increased likelihood of Tasports’ achieving cultural changes if its scope order granted would promote fairer and more efficient bargaining – views of employees in favour of AIMPE application – common ground that AIMPE (and AMOU) efficient bargaining representatives and that bargaining with MUA less than efficient – effect of granting Tasports’ application would be to compel AIMPE back into bargaining arrangement with parties considered by all to be not bargaining efficiently – Commission held that while both scope orders sought would promote fair and efficient conduct of bargaining, on balance, making the scope order sought by AIMPE would better promote fair and efficient conduct of bargaining – reasonable in all the circumstances to grant scope order sought by AIMPE – granting application would break deadlock – not satisfied reasonable in all the circumstances to grant Tasports application – as justification pre-requisites met and satisfied in respect of matters in s.238(4) of FW Act, Commission ordered that there be two agreements – one to cover employees employed at Tasports in Engineering roles on Tasports floating plant as classified in the Tasports Towage Enterprise Agreement 2013 – AIMPE – the other to cover employees employed at Tasports employed in Tug Master and Deckhand roles on Tasports floating plant as classified in the Tasports AMOU and MUA Enterprise Agreement 2013 – order issued. Australian Institute of Marine and Power Engineers, The v Tasmanian Ports Corporation P/L t/a Tasports; Tasmanian Ports Corporation P/L t/a Tasports v Australian Institute of Marine and Power Engineers, The
May 19, 2017
The drip feed of cases continues in the Fair Work Commission. Today twenty applicants will prosecute their unfair dismissal/labour dispute cases. The full list is: Suncorp Staff Pty Ltd (Joyce), Sydney Trains (Dhillon), Steve Jarvin Motors Pty Ltd (Al-Khalil), UnitingCare Wesley Port Adelaide Incorporated (Csepregi), Cowra Tyre & Brake Centre Pty Limited (Davis), CJ Express Sydney Pty Ltd (Jiang), Aurizon Operations Ltd (Jones), Celesty Family Trust Pty Ltd (Allan), Bidgerdii Community Health Service (VanDenBrink), Specialist Waste Treatment Services (Honnery), Centacare Community Services (Kim), Water Corporation (Batchem), Odeum Farms/Freshcorp Farms (Wienand), Neibo Real Estate Pty Ltd (Carlin-Smith), Farstad Shipping (Indian Pacific) Pty Ltd (Rust), Anglicare North Queensland Limited (McEwan), The Glen Hotel Pty Ltd (Kubie), CSL Limited (Saunders), Xtra Transport Services Pty Limited & Parsons (Denezis).
May 18, 2017
A s.394 (Unfair dismissal) application by Brooke Faulkner against Nixon Safety Pty Ltd T/A Firequest has been ruled out because she failed to pay the application fee.
