TERMINATION OF EMPLOYMENT – minimum employment period – ss.382, 383, 394 Fair Work Act 2009 – applicant made an application of unfair dismissal following termination of casual employment – respondent submitted that applicant had not completed the minimum employment period of six months required to make application – applicant claimed to have commenced employment with respondent in 2012 – respondent submitted evidence that applicant was employed as a casual employee for harvest periods from September to March/April in 2012-13, 2015-16 and 2016-17 and as a part-time time employee between 2013-15 – applicant claimed working pattern did not change regardless of employment status as a casual or permanent employee – applicant submitted she had an expectation of employment for each harvest period and in a full time vacancy from January 2017 – payslips indicated that applicant’s hours were irregular from week to week and that there was a five month gap in employment between the 2015-16 and 2016-17 harvest periods – Commission held unable to regard employment during 2015-16 and 2016-17 harvest periods as continuous – unable to find that applicant’s employment was regular and systematic – Commission satisfied applicant had not completed the required minimum employment period. Kerley v Viterra Operations P/L
May 9, 2017
ENTERPRISE AGREEMENTS – approval – ss.180, 185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission approved the Australian Mining Supplies P/L Enterprise Agreement 2016 (Agreement) – appellant submitted that Commission erred in being satisfied that respondent had taken pre-approval steps set out in s.180(3) of the FW Act – satisfied relevant employees were not advised of time, place or method of actual vote which approved the Agreement at least seven days in advance as required by s.180(3) – s.180(3) requires that employer take ‘all reasonable steps’ to provide required notification – expression ‘all reasonable steps’ [Bluescope Steel Ltd] and failure to take a particular step [Parland] considered – found no evidence that respondent took any steps to notify relevant employees of the time, place and method of vote which actually occurred prior to commencement of access period – held pre-approval step in s.180(3) was not complied with and there was no basis upon which Commission could have been satisfied that requirement for genuine agreement of employees in s.186(2)(a) had been met – Full Bench held Commission had no power to approve Agreement and no power to waive noncompliance with s.180(3) and erred in doing so – permission to appeal granted – appeal upheld – Decision quashed – application for approval of the Agreement dismissed. Appeal by The Construction, Forestry, Mining and Energy Union against a decision of Gregory C of 17 January 2017 [[2017] FWCA 322] Re: Australian Mining Supplies Company P/L
May 9, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – casual – ss.383, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent lodged a jurisdictional objection based on minimum employment period not served as applicant was not employed on regular and systematic basis and there was no expectation of continuing employment with the employer on a regular and systematic basis – applicant employed with respondent as casual employee from 18 November 2015 until 24 November 2016 – provided Commission with copies of 27 fortnightly timesheets which showed she worked on a weekly basis despite the hours of work varying daily – ‘continuous service by a casual employee who has established a sequence of engagements with an employer is only broken when the employer or the employee make it clear to the other party by words or actions that there will be no further engagements’ [Shortland v Smiths Snackfood] – Commission determined service of applicant was continuous from November 2015 and applicant employed on regular and systematic basis – not persuaded that periods of absence constituted breaking continuity of service – determined applicant was protected from unfair dismissal as she had satisfied minimum employment period – matter reassigned to Unfair Dismissal Case Management Team for arbitration. Kneen-McDaid v Jaycorp P/L t/a Homestart
May 9, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as casual truck/van driver – respondent claimed dismissal was in accordance with the ‘summary dismissal’ part of the Small Business Fair Dismissal Code (Code) – reason for dismissal was that the applicant had three accidents in the truck/van in a 12 month period and also one or two incidents of alleged road rage – the last of these incidents was more than two months prior to dismissal – applicant allowed to work for four or five days after the dismissal – Commission not satisfied dismissal was consistent with the summary dismissal part of the Code – applicant believed the real reason for dismissal were his complaints about underpayment of wages and his persistence in seeking rectification by back payment – Commission not satisfied there was a valid reason for dismissal – not satisfied applicant’s actions constituted misconduct – held that the lack of procedural fairness and the lack of a valid reason meant dismissal was harsh and unjust and unreasonable – ordered compensation of $14995.54, taxed according to law. Richardson v Geelong & Surfcoast Laundry t/a Swim Alumni P/L
May 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute over payment of a meal allowance when driver employees work overtime hours with rest breaks – entitlement arises if employee not notified by the day prior to being required to work overtime – respondent’s current practice to post roster on two noticeboards – clause 27.6(a)(i) of Southern Star Windows Enterprise Agreement 2013 sets out the requirements for entitlement to the allowance – these are to notify the employee no later than the previous day and such notice indicate the employee ‘would be required to work such overtime’ – form of notification not specified – current wording in the rosters is there ‘may’ be a requirement for driver employee to work overtime – respondent advised duration of overtime difficult to accurately predict due to external factors which may cause down time – Commission’s view was that ‘would be required’ not satisfied by current use of ‘may’ in the roster – Commission found that in order to avoid the obligation to pay a meal allowance requires notification the day before working a period of overtime – the employee must be informed they will be required to work overtime and the notice includes an indication of the likely duration of the overtime by reference to the rest breaks that will fall due during the overtime under clause 27.7 of the agreement – dispute determined. Construction, Forestry, Mining and Energy Union v Southern Star Windows P/L
May 9, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was terminated for breach of a lawful and reasonable direction given by employer regarding loading of ship – applicant had received three prior warnings for threatening behaviour and failing to follow company procedure – submitted that breach was not deliberate and that he was under a lot of pressure that day – respondent submitted that applicant’s submissions in relation to nature or quality of breach was irrelevant to question of valid reason – submitted that applicant knew about procedure and decided consciously and wilfully not to follow it – Commission found applicant breached company procedure and that he was familiar with it but as it was an isolated event, it did not constitute a valid reason for dismissal – applicant submitted that prior warnings were not relevant as they were dubious factually with dubious processes – respondent submitted that applicant’s previous warnings should be taken into account but only to the extent of whether or not the incidents had occurred – found dismissal was harsh, unjust or unreasonable – reinstatement inappropriate – compensation of $18,225.80 less taxation ordered. Taylor v Qube Ports P/L t/a Qube Ports
May 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute – dispute concerned the interpretation of clause 32.17 of EnergyAustralia Yallourn Enterprise Agreement 2013 (Agreement) which dealt with Transitional Cross-Stage Training Arrangements – applicant contended that clause was clear and unambiguous; requiring the company to provide applicant with cross-training as requested – it was common ground that applicant completed a course – respondent submitted that course included cross-stage training which was sufficient to satisfy the requirements of clause – applicant contended training was for purpose of initial training in the role and there was an absence of proper training records – respondent claimed that only obligation to applicant was to provide a scheduled training program and advise of when it would be provided – as to the content of the program, respondent submitted that this was a matter for its discretion, having regard to applicant’s training, skills and experience – Golden Cockerel considered – Commission found clause had a plain meaning and there was no ambiguity – respondent was required to provide applicant with a two week cross-stage training course run as 4 x 9 hours per day on day work, together with the consolidation clause 32.17 required upon its completion. Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn P/L t/a Energy Australia
May 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute arising under the Patricks Terminals Enterprise Agreement 2016 (the Agreement) – application for an interim order to restrain the respondent from requiring employees working in the rail operation at the Port Botany Terminal to load empty containers from Qube container yard onto trains – applicant alleges that respondent directing employees to perform work differently to accepted practices, and alleges a suspected breach of the Agreement – Commission considered the terms of the Agreement and ss.739(4) and (5) of the Act, and determined that the Commission had no jurisdiction to determine the interim order application because the Act limits the power of the Commission to arbitrate a dispute to the express terms of the dispute resolution procedure, in this case, clause 4.2 – the industrial action subject to the s.418 application before and interim orders by Deputy President Booth and orders of the Federal Court are in relation to the ‘matter at hand’, being ‘bans on the loading or unloading of trucks arriving at the rail yard’ – Commission held that it is bound by the Federal Court order – should the Commission be incorrect in its determination of jurisdiction, it further held that the application should be dismissed as to its merits by applying the principles in ABC v O’Neill – Commission held balance of convenience does not favour interim order being granted – application dismissed – matter to be determined in proceedings on 3 May 2017. Maritime Union of Australia v Patrick Stevedores Holdings P/L
