An application for approval of the Victorian WorkCover Authority Enterprise Agreement 2016-2020 (s.185 – Application for approval of a single-enterprise agreement) will be heard today by Commissioner Cirkovic in Court 4 & Conference Room C – Level 6 in Melbourne at 10am.
May 10, 2017
The conga line of unfair dismissal/employment dispute applicants in the Fair Work Commission is shrinking. A mere seventeen are listed for hearing today: A and A Excavations (Cooper), Aldi Stores (A Limited Partnership), Viator Systems Pty Ltd (Antoniades), Komatsu Forklift Australia (Finnegan), WesTrac Pty Ltd (Armstrong), Metro Scaffold Hire (Gullotti), Dextera Pty Ltd (Pocklington), Network Aviation Pty Ltd (Ryan), L R Enterprise Australia Pty Ltd (Clark), Rumbalara Aboriginal Co-Operative Ltd (Jackson), Bis Industries (Larcombe), ITM (Athian), Rio Tinto Aluminium Limited (Gill), Groote Eylandt Mining Company Pty Ltd (Langtree), Carlswood Pty Ltd (Brown), Temapet Pty Ltd ATF TCMG Unit Trust (Singh), Orica Australia Pty Ltd (Connell).
May 9, 2017
Twenty-one unfair dismissal/employment dispute applicants will appear in the Fair Work Commission today. The full list is: A and A Excavations (Cooper), Rio Tinto Aluminium Limited (Gill), Central Gippsland Health Service (Pusher), Wilson Services Company Pty Ltd (Marshall), Solartint (Galvin), Agia Projects (Magee), Stella Bella Wine Pty Ltd (James-Martin), TSA (VIC) Property Trust as Trustee the Salvation Army (Vic) Social Work (Bokori-Mayman, Ewels, Talarico), RACV (Venianakis), Shailer Transport (Kerr), Moreland City Council (Evans), Ventia Pty Ltd (Alvisio), Virgin Australia Airlines Pty Ltd (Ingall), Hilti (aust) Pty Ltd (Harvy), Department of Natural Resources and Mines (Wanninayake), Qube Logistics (SA) Pty Ltd (McIntyre), Watervalley Pty Limited (Sutton), Playford City Soccer and Community Club Inc (Fowler), Millennium Services Group Ltd (Hannemann).
May 9, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant submitted she was unfairly constructively dismissed and was seeking an order for compensation – applicant was employed as a full-time early childhood teacher – in 2016 a fellow employee made a bullying complaint against applicant – applicant subsequently stood down – in May 2016 applicant was diagnosed with anxiety and depression which was exacerbated after the complaint – investigation occurred and it was found that applicant had engaged in ‘low grade bullying’ – written warning issued – applicant thought outcome was harsh – during this time applicant produced a number of medical certificates which attested to her unfitness for work – on 5 December applicant’s lawyers wrote to respondent stating the respondent had denied the applicant the ability to continue with her career and in consequence the applicant had suffered psychological injury – a meeting was requested between the respondent and the applicant – on 20 December applicant’s lawyers wrote to respondent that the respondent had disregarded the request for a meeting and as a result, applicant had been left with no alternative other than to resign – applicant submitted she was forced to resign because of conduct, or a course of conduct, engaged in by the respondent – applicant submitted the conduct was ‘the refusal of the respondent to agree…to meet with the applicant and her representative to discuss what might be done to ensure her safe return…’ – Commission considered the Full Bench decision in O’Meara ‘that there. be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end’ – it is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment’ [O’Meara] – Commission found the applicant had a number of options or alternatives to resignation to contest respondent’s failure to take up her request for a meeting to discuss the basis for her return to work – Commission referred to the Dispute Settlement Procedure as a mechanism to resolve disputes and noted that if dispute unresolved internally, they can be referred to the Commission – Commission found it could not be fairly said the applicant had no other choice than to resign – found applicant was not dismissed from her employment with the respondent within the meaning of s.386 of the FW Act – found there was no dismissal by the employer – application dismissed. Hoolahan v North Ryde Community Pre-School Inc t/a North Ryde Community Preschool
May 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – respondent issued notifications that it intended to proceed with significant change in accordance with consultation provisions in Pacific National Coal NSW Enterprise Agreement 2013 (Agreement) – appellant applied to Commission to deal with a dispute involving respondent under s.739 of FW Act – alleged respondent had failed to meet its obligations under Agreement in relation to significant change – in application, appellant named itself as applicant and did not identify by name the employee parties to the dispute – respondent raised jurisdictional objection – claimed a valid dispute had not been notified by appellant and lodged in Commission and clause A30.2(a) of Agreement had not been complied with – at first instance Commission upheld jurisdictional objection – held application not been made in accordance with FW Act – dismissed application – appellant sought permission to appeal – Commission must grant permission to appeal if satisfied in the public interest to do so – GlaxoSmithKline applied – rarely appropriate to grant permission to appeal unless an arguable case of appealable error demonstrated [Wan] – Commission at first instance dismissed application for two reasons – first, clause A30.2(a) not complied with – second, application did not name any employee affected by change – Full Bench noted that by virtue of clause A29.3(a), clause A30.2(a) was not required to be complied with – no obligation to provide respondent with notification of grievance – Full Bench satisfied Commission erred by concluding application had not been made in accordance with FW Act on the grounds clause A30.2(a) had not been complied with – Full Bench noted the FW Act does not require an application made under s.739 to identify by name each employee who was a party to the dispute nor does Agreement – noted appellant had provided respondent with names of employees after application had been lodged – held that the fact appellant did not provide names of employee parties at time of or prior to lodging application did not mean Commission did not have jurisdiction to deal with dispute – Full Bench satisfied that Commission at first instance erred in relying on the fact that the application did not name employee parties and in concluding that application was not properly made in accordance with FW Act – permission to appeal granted – decision quashed – appellant and respondent accepted that dispute subject to application was at end – matter not required to be remitted – application dismissed. Appeal by Australian Rail, Tram and Bus Industry Union against decision of Sams DP of 5 January 2017 [[2017] FWC 27] Re: Asciano Services P/L t/a Pacific National
May 9, 2017
MODERN AWARDS – 4 yearly review – common issue – s.156 Fair Work Act 2009 – Full Bench – decision to deal with Educational Services (Teachers) Award 2010 (Teachers Award) in relation to insertion of various annual leave model terms as part of 4 yearly review – to be read in conjunction with previous decisions including June 2015 decision [[2015] FWCFB 3406], September 2015 decision [[2015] FWCFB 5771], May 2016 decision [[2016] FWCFB 3177] and June 2016 decision [[2016] FWCFB 3953] – in May 2016 decision, Annual Leave Common Issue Full Bench expressed provisional view to vary all modern awards to incorporate provision providing for annual leave to be taken in advance, allowing cashing out of annual leave and excessive annual leave accruals – submissions received from Associations of Independent Schools (AIS) on behalf of six employer associations representing more than 1020 employers and Independent Education Union (IEU) on behalf of teachers in non-government schools covered by Teachers Award – both parties agreed that none of the three model terms should be inserted in Teachers Award – overarching position of parties was that individual arrangements of schools rendered model clauses unnecessary – parties maintained positions at conference before Commissioner Johns on 23 February 2017 that model terms should not be included in Teachers Award – agreed that model terms should only apply to teachers employed in early childhood service operating for 48 or more weeks per year as there was potential for employees in this category to accrue leave and take leave at a different time – Full Bench determined that due to nature of education industry annual leave model terms should not apply to employees under Teachers Award other than those covered by Schedule B – written submissions and comments in relation to draft determination should be send to [email protected] by 4:00pm Monday 8 May 2017. 4 yearly review of modern awards – Educational Services (Teachers) Award 2010
May 9, 2017
MODERN AWARDS – 4 yearly review – Family & Domestic Violence Leave Clause – ss.156, 608, 622 Fair Work Act 2009 – on 27 February 2017 Vice President Watson published his decision in relation to the Family & Domestic Violence Leave Clause – Vice President’s resignation from the Commission took effect on 28 February 2017 – at the time of Vice President Watson’s resignation, the other two members of the relevant Full Bench had not published their decisions – remaining Members sought advice from Justice Ross as to whether they may proceed to finalise and publish a decision in the matter, having regard to s.622 of the FW Act – Commission sought and received submissions regarding reconstitution of the Full Bench – hearing in relation to this issue held on 4 April 2017 – provisional view of the President is that he should seek certainty in the final disposition of matter AM2015/1 by referring questions of law to the Federal Court pursuant to s.608(1) – Attachment to this Statement sets out on a provisional basis the statement of facts, questions of law and other materials proposed to be provided to the Federal Court – parties that appeared at the hearing on 4 April 2017 and any other interested persons are requested to provide submissions on the provisional view that a referral should be made to the Federal Court and also on the contents of the Attachment by 4 pm on Wednesday 10 May 2017 – after considering the submissions, the President will issue a decision as to whether a referral will be made to the Federal Court. 4 Yearly Review of Modern Awards – Family & Domestic Violence Leave Clause and other matters
May 9, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – ss.604, 773 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance found there were not exceptional circumstances that would justify Commission exercising discretion to grant the appellant an extension of time – found application was made 904 days outside time limit and was not satisfied there were exceptional circumstances that would justify the granting of an extension for application to be made – Full Bench found that Commission did not deal with issue of permission for legal representation in Decision at first instance – Warrell v Walton considered – respondent was previously granted permission to be represented and this may have contributed to the DP not explicitly dealing with this issue in decision – held that in accordance with Warrell, issue of permission to be legally represented was required to be dealt with – failing to do so constituted a significant error – not satisfied that Commission exercised power in a manner that was ‘fair and just’ pursuant to s.577(a) of FW Act – error made in accordance with House v The King – permission to appeal granted – appeal upheld – decision at first instance quashed – matter referred to Gooley DP for rehearing. Appeal by Wanninayake against decision and order of Asbury DP of 19 January 2017 [[2017] FWC 321], [PR589506] Re: State of Queensland (Department of Natural Resources and Mines (SIMTARS))
