ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute between applicant employee and respondent employer under terms of CBH Country Operators Union Collective Agreement 2014 (Agreement) – relevant term in dispute clause 15.1 relating to living away from home allowance – clause provided payment of living away from home allowance dependent on employee being required to work away from their usual place of employment (UPE) and paid at rates set out in clause – question to be determined what was ‘base line’ for calculating the allowance and could the respondent unilaterally change UPE due to policy change – respondent changed applicant’s UPE from Beverley to Mawson which applicant did not agree to – Commission noted UPE does not necessarily refer to where employee usually works – applicant required to work on various sites and to travel between sites – applicant submitted clause 15.1.3 provided that UPE shall be status quo until employee changes areas – applicant contended no surrounding circumstances to support contention that there was any ambiguity regarding intention of clause [Golden Cockerel] and therefore plain reading of clause meant applicant’s UPE was Beverley until such time as employee changed areas – respondent submitted it had power to change applicant’s UPE based on terms of Agreement and common law rights – respondent cited fact that applicant had only worked 96.5 hours at Beverley in past 5 years and site very rarely used in recent years generally – contended pursuant to clause 15.1.2 employee’s UPE was nearest grain receival point to where employee lived which was now Mawson as Beverley used – also submitted it had common law right to lawfully instruct employee to perform work at different location from where normally located – Commission noted it will not intervene with employer’s right to run business and exercise managerial prerogative unless actions of employer in relation to employee are unjust or unreasonable [Western Australian Newspapers] – Commission found clause 15.1.2 cannot be considered in isolation – clause 15.1.3 applied to existing employees at commencement of Agreement – Commission interpreted these words to be identifying specific group of employees being those whom were employed at commencement of Agreement in 2014 – applicant was an existing employee at commencement of Agreement and was one of that group of employees to whom clause 15.1.3 had application – Commission held plain meaning of clause read to mean applicant’s UPE remained as it was at the commencement of Agreement until such time as he changed areas – also found that common law principles relating to managerial prerogative cannot override operation of clauses of Agreement – Commission held answer to question to be determined was ‘no’ – applicant’s UPE remained Beverley until such time as he changed areas. Petchell v Co-Operative Bulk Handling Limited t/a CBH Group
May 12, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – amendment of application – ss.365, 773 Fair Work Act 2009 – application to deal with unlawful termination dispute under s.773 of the FW Act – respondent objected to application as it was a constitutionally covered entity – applicant sought application to be amended to general protections application made under s.365 and for respondent’s name to be amended to entity identified in employer’s response – applicant submitted that at time of making the application she believed respondent was not a corporation as her contract and payslips both referred to it being a limited partnership – further, submitted there was no substantial change in the process and the irregularity was only one of form – respondent submitted that discretion in s.586 did not extend to making the change sought as the request went beyond that of form and was a substantial and substantive change that altered nature of the application – Ioannou v Northern Belting Services considered – in Ioannou, Full Bench held that s.586 could not be used to amendment application if amendment fundamentally changed original application – Full Bench therefore refused to transform unfair dismissal application into general protections application, even though both may have arisen from same set of circumstances involving dismissal of employee – Commission raised similar concerns to those raised by Full Bench and identified that whilst there were some similarities between s.365 and s.773, there were also significant differences including range of alleged contraventions, reasons an employer must not terminate employment and the statutory time requirements by which application must be filed – Commission held that appropriate course for applicant was to discontinue s.773 application and then make application under s.365 – no objection from respondent regarding the application to amend its name – application to amend from s.773 to s.365 application refused – application to amend respondent’s name to read ALDI Foods P/L as General Partner of ALDI Stores (A Limited Partnership) granted. Hayes v Aldi Stores – a Limited Partnership
May 12, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant was terminated for serious misconduct – applicant sent email containing offensive language to Head Statistician at Australian Bureau of Statistics (ABS) – email sent from applicant’s work email address and contained respondent’s logo and applicant’s signature – ABS made a complaint about the email to respondent – five days later applicant sent a further email containing offensive language from his work email address to Head Statistician at ABS and four external recipients including a federal politician – respondent conducted investigation and concluded that applicant’s actions breached of University’s Code of Conduct and policies and constituted serious misconduct warranting summary dismissal – applicant’s employment was governed by the Murdoch University Enterprise Agreement 2014 (the Agreement) which provided that termination of employment can only occur in the case of serious misconduct – applicant submitted that there was no valid reason for dismissal on basis that the conduct did not involve serious misconduct and the investigation was flawed – respondent submitted that applicant had previously received a written warning regarding an email he sent to work colleague containing inappropriate content – respondent submitted that the two emails to ABS damaged University’s reputation with ABS – respondent submitted that conduct was wilful and deliberate – found sending of the emails valid reason for dismissal – found misconduct constituted use of language that was vulgar and offensive and was contained in an email identifying respondent and applicant’s role – found applicant’s conduct breached of respondent’s Code of Conduct and Email and Electronic Messaging Guidelines – found actions of applicant also satisfied meaning of serious misconduct as defined under the Agreement – found misconduct was wilful and constituted serious impediment to carrying out of applicant’s duties and had potential to cause an imminent and serious risk to reputation of respondent – application dismissed. Hayes v Murdoch University
May 12, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as leading hand in respondent’s cement and concrete products factory – applicant was terminated as result of incident on 16 November 2016 where applicant was alleged to have allowed another employee to operate a crane which dropped a rack of steel – applicant assisted with clean-up and told employee to file safety report which occurred some 49 minutes later – respondent alleged that employee was not fully trained to operate crane and that applicant did not provide adequate supervision of employee nor immediately report the safety incident himself – applicant provided with ‘show cause’ letter on 22 November 2016 which required written response followed by meeting on 24 November 2016 – letter also referred to a ‘final written warning’ letter issued to applicant in December 2015 – applicant contacted AWU who sought to reschedule meeting and allow a verbal response; both rejected by respondent – applicant received termination letter on 25 November 2016 following applicant’s failure to respond in writing and attend meeting – applicant submitted that respondent did not have a valid reason for dismissal and that he was not given the opportunity to properly respond to respondent’s allegations – Commission found that employee had operated crane on many occasions without objection and that the responsibility for training rested with senior management – found that the final written warning relied on by respondent was unrelated to current incident – satisfied that there was no valid reason for dismissal – not satisfied that the requirement for written response and the time frame allowed was reasonable – not satisfied that applicant and AWU were granted a fair opportunity to be heard – found that the applicant’s nonattendance at the 24 November 2016 meeting did not detract from the unfairness of the respondent’s process – satisfied dismissal harsh, unjust and unreasonable – reinstatement ordered and restitution of lost wages less payment received in lieu of notice and $3000 received by applicant in casual employment since dismissal. West v Holcim (Australia) P/L
May 12, 2017
INDUSTRIAL DISPUTE – dispute resolution procedure – ss.418, 739 Fair Work Act 2009 – decision in relation to two applications made in relation to Patrick Stevedores Holdings P/L (Patrick) – application under s.418 made by Patrick seeking to stop industrial action and the other made under s.739 by the Maritime Union of Australia (MUA) a dispute alleging Patrick making employees work contrary to accepted practice and breach of the Patrick Terminal Agreement (Agreement) – the s.418 was subject of interim order to stop industrial action – s.739 application was the subject of a conference which was unable to resolve the dispute – in relation to the s.418 application the Commission found: the stoppages of work that occurred on 20 and 21 April met definition of industrial action under s.19 of the FW Act but were no longer happening and were not threatened, impending or probable – the bans on handling containers from Qube trucks was industrial action and that the MUA was organising industrial action – the employees have made a collective decision to refrain from offering themselves for overtime and accepting requests to extend shifts with no evidence that this is organised by the MUA – the Commission issued an order consistent with this decision – in relation to s.739 dispute the Commission found: that the industrial action that took place on 20 and 21 April 2017 operates as a bar to the exercise of the power of arbitration in the dispute resolution procedure – the Commission found it was unable to apportion industrial action to one part of the dispute and not another – the Commission declined to issue an order in relation to the s.739 dispute. Patrick Stevedores Holdings P/L v Maritime Union of Australia, The; Maritime Union of Australia, The v Patrick Stevedores Holdings P/L
May 12, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance dismissed unfair dismissal application – found valid reason for termination – grounds of appeal claimed Commission erred in a number of respects including making findings in relation to data obtained from a personal digital assistant (PDA) – permission to appear granted to representatives of both parties due to complexity of matter – appellant sought to lead further evidence – principles in Power Projects International and Akins considered – respondent’s submissions contained 386 pages of evidence and highly technical data – appellant not provided opportunity to file reply submissions – not able to properly assess material without some form of technical or expert assistance – appellant denied opportunity to put a case on an important issue which could have led to a different outcome – evidence credible – new evidence allowed – GlaxoSmithKline and Stead v State Insurance Commission considered – Full Bench held that appellant did not have benefit of provision of reply submissions – held that period between receiving high technical data and hearing was short – noted that appeal could have been avoided if a reply submission had been provided for in originating directions and a longer timeframe had been provided for between written submissions and hearing date – Full Bench found appellant denied natural justice – permission to appeal granted – decision under appeal quashed – matter referred to Commission for rehearing. Appeal by Colella against decision and order of Williams C of 1 March 2017 [2017] FWC 1139 and [PR590568] Re: Aroona P&T P/L t/a Aroona Alliance
May 12, 2017
ENTERPRISE AGREEMENTS – greenfields agreement – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – greenfields agreement titled TCQ Labour P/L / AWU Civil Construction Metro Greenfield Agreement 2016 (Agreement) was made by TCQ Labour P/L (TCQ) and the Australian Workers’ Union (AWU) on 31 August 2016 – Construction, Forestry, Mining, and Energy Union (CFMEU) opposed the approval of the Agreement and, though not a bargaining representative for the Agreement, was permitted to make submissions in opposition and to appear at the hearing – CFMEU was confined to questions about whether the Agreement related to a genuine new enterprise, whether the Agreement passed the better off overall test and whether it was in the public interest to approve the Agreement – at first instance the Agreement was approved with undertakings – grounds for appeal included that the Commission erred in failing to give any or adequate reasons for its decision; in failing to take into account inconsistent evidence; made a serious error of fact in concluding that there was a genuine new enterprise; and erred in accepting undertakings – Full Bench not persuaded that the answers to questions given in the statutory declarations were contradictory or could not be reconciled – held that although the Commission did not expressly engage with the CFMEU’s argument or give reasons for its rejection, the omission was not fatal – found that the undertaking was not one capable of being accepted by the Commission under s.190 of the FW Act – Full Bench persuaded that permission to appeal should be granted because an error in the Decision has been established and the nature of the error identified raises for consideration the proper administration of the Commission’s power to accept undertakings during the agreement approval process – grounds of appeal concerning the undertaking upheld – given the nature of the error identified, Full Bench did not consider it needed to set aside the Decision to approve the Agreement – s.607 provides that the Commission may, in relation to an appeal, vary the Decision – as paragraphs 1 and 6 of the undertaking were not capable of being accepted because they did not respond to any concern that the Agreement did not meet any particular requirement in ss.186 or 187, removal of those paragraphs from the undertaking will not have a bearing on the validity of the decision to approve the Agreement – Full Bench exercised its power to vary the Decision by removing the impugned paragraphs from the undertaking. Appeal by Construction, Forestry, Mining and Energy Union against decision of Lawrence DP of 23 December 2016 [[2016] FWCA 9249] Re: Australian Workers’ Union and Anor
May 12, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedures in Wilson Fire Protection and Plumbing Division Union Collective Agreement 2011-2015 (earlier agreement) and Wilson Fire Protection Plumbing Division Union Collective Agreement 2015- 2019 (agreement) – dispute concerns underpayment of entitlements of four former employees – examined whether the respondent is obligated to pay the former employees the monies claimed – applicant raised jurisdictional question as to whether one of the former employees could bring a dispute to the Commission given employment ceased on 30 June 2016 – Commission satisfied former employee attempted to resolve the dispute at the workplace level pursuant to the dispute settlement procedure clause in the earlier agreement – satisfied other former employees had no jurisdictional concerns – Commission found there is jurisdiction to have dispute arbitrated – Commission satisfied former employees owed the unpaid entitlements they claimed except for two employees who claimed eligibility of an allin rate entitlement as the provisions of the agreement had not been met. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wilson Fire Protection
