TERMINATION OF EMPLOYMENT – costs – ss.394, 604, 611 Fair Work Act 2009 – Full Bench – at first instance Commission found dismissal unfair and awarded employee $24,750.00 plus 9% superannuation less taxation by way of compensation – appellant sought permission to appeal Commission’s decision – Commission could not contact appellant and received no written submissions – no appeal books filed and no attendance at hearing – appeal refused – employee applied for costs and served submissions on appellant – no submissions provided by appellant – employee submitted appellant made appeal application vexatiously or without reasonable cause – should have been reasonable apparent to appellant their appeal had no reasonable prospect of success – appellant caused unnecessary costs because of its unreasonable acts or omissions – Full Bench found appeal was vexatious – application for costs granted – directions to be issued for itemised schedule of costs – order for costs will be made pursuant to schedule of costs. Appeal by Inovit P/L t/a Inovit against decision and order of Clancy DP of 1 February 2017 [[2017] FWC 657] Re: Young
May 2, 2017
GENERAL PROTECTIONS – jurisdiction – ss.372, 604 Fair Work Act 2009 – appeal – Full Bench – Commission dismissed application under s.372 FW Act at first instance because applicant’s employment had terminated – Full Bench considered Commission’s role in general protections matters not involving dismissal – Commission must deal with alleged contravention through conciliation or mediation or by making a recommendation – no other power to deal with matter – Commission had no power to dismiss application made under s.372 – permission to appeal granted – original decision quashed – applicant able to make further application to apply to the Federal Court or Federal Circuit Court. Appeal by Raza against decision of Drake SDP of 24 February 2017 [[2017] FWC 1096] Re: Harbour Roof Tiling P/L
May 2, 2017
TERMINATION OF EMPLOYMENT – high income threshold – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected to application on basis that applicant earned more than high income threshold (HIT) – Commission satisfied applicant not covered by modern award and no enterprise agreement applied to his employment – applicant began working for respondent in November 2013 under an employment agreement which provided for annual remuneration of $140,000 – employment agreement provided for deferral of salary in first year and ability for parties to agree on subsequent deferrals – applicant had a contractual right to call upon respondent to pay any deferred salary – no documentary evidence that company resolved to appoint applicant as managing director or enter into employment agreement – part of remuneration deferred in 2014 and 2015 financial years – in February 2016 applicant and respondent purported to amend employment agreement to amend annual remuneration from $140,000 to $120,000 and backdate amendment to November 2013 – no documentary evidence of amendment – neither employment agreement or amendment disclosed to shareholders – applicant removed as director in September 2016 and notified of termination of employment – neither party produced minutes of meetings of sole director to resolve to enter into employment agreement or amendment – absent production of minute book difficult to verify whether employment agreement and amendment were validly entered into – as applicant never actually paid either $140,000 or $120,000 possible that both figures were a legal fiction – for purposes of application applicant willing to agree that remuneration was the actual amount paid to him – Commission held applicant’s income below HIT – satisfied applicant protected from unfair dismissal – matter to be programmed for hearing in relation to second jurisdictional objection regarding Small Business Fair Dismissal Code. Harding v Digital Skies Group P/L t/a Android Enjoyed or CameraSky
May 2, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by CFMEU to make determination that first written warning issued to CFMEU delegate, Mr Aitken, pursuant to clause 29 of the Energy Australia Yallourn Enterprise Agreement 2013 (agreement), be withdrawn – warning issued for unauthorised direction of another employee to cease performing work – other employee was to give training in plant operation to team member who had become manager which was contrary to union policy – satisfied Mr Aitken instructed or directed other employee not to perform work – CFMEU submitted issuing of warning manifestly unjust or unreasonable and should be withdrawn – some weight in submission and mitigating circumstances – however on balance did not consider decision to issue warning manifestly unjust or unreasonable – CFMEU submitted disciplinary action under clause 29 may only be conducted after investigation – Mr Aitken not made aware of investigation – Commission held Mr Aitken denied natural justice in serious breach of clause – warning not issued in accordance with clause 29 because an investigation was not conducted – determined that part of resolution of dispute was that the warning be withdrawn and was of no effect as it was not issued in accordance with clause 29 – determined that final outcome of matter should be that Commission determines appropriate disciplinary outcome to be either; no further action; an oral warning or a first written warning with effective period reduced to six months – parties to make submissions on this matter within seven days. Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn P/L
May 2, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant approached multiple times about poor performance – termination took effect 16 September 2016 – applicant submitted he was not informed about wage recovery system which was used to measure performance, respondent did properly consider applicant’s medical condition, applicant not afforded opportunity to respond to reasons for termination and language barriers affected communication with respondent – applicant could not substantiate claims and at times applicant’s statements contradictory – respondent provided evidence refuting applicant’s claims – applicant conceded to basic understanding of English, that the respondent wasn’t notified of injury, and understood translated summaries of his weekly performance – Commission found applicant not provided with opportunity to respond but held due to applicant’s poor performance and unacceptable hostile reaction there were sound, defensible and valid reasons for termination – Commission held dismissal not harsh, unjust or unreasonable – application dismissed. She v Safeguard Home Improvements P/L
May 2, 2017
TERMINATION OF EMPLOYMENT – costs – application made out of time – ss.394, 402 Fair Work Act 2009 – applicant discontinued unfair dismissal application after the respondent made jurisdictional objections – respondent applied for costs against the applicant – costs application not made within 14 days of the matter being discontinued – Commission received evidence the reason for the delay in submitting the costs application was that the respondent’s in house counsel was in an accident and suffered concussion – the respondent argued an extension of time be granted – Commission held that unlike ss.366 and 394 of the FW Act, s.402 does not provide the Commission power to grant an extension of time – in circumstances where the costs application was lodged two days outside the 14 day time limit, the application for costs must be dismissed – application dismissed. Horgan v Spredfast Australia P/L
May 2, 2017
CASE PROCEDURES – procedural and interim decisions – workplace determination – ss.266, 590 Fair Work Act 2009 – Full Bench – the Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing workers Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (collectively the Unions) sought order requiring Esso to provide copies of financial documents or records pursuant to s.590(2)(c) of the FW Act – parties currently involved in proceeding conducted pursuant to s.266 – Australian Nursing Federation v Victorian Hospitals’ Industrial Association adopted – Unions submitted that certain documents may set out Esso’s real financial position – Esso opposed production of the documents on the basis of relevance, oppressiveness and that proposed categories cover enormous array of documents – Commission granted order for production of specified annual statements as they were relevant to issues that will likely require determination in substantive proceeding and production would not be oppressive – refused order requiring production of specified loan documents as same evidence can be elicited through cross examination of Esso’s witnesses – refused order requiring production of specified documents evidencing proposal for a particular development as many of which are likely to be of no relevance to issues that will fall for determination and it is therefore oppressive – also not likely to shed any light on evidence regarding challenges for Esso in presenting a business case for capital investment – refused order requiring production of certain documents relating to annual take or pay volume, revenue and certain gas supply contracts on basis that production would be oppressive and annual statements ordered to be produced are likely to yield sufficient information regarding issues – granted order for production of specified forecasting reports as they were relevant, however documents to be produced are to be most current or recent of any report, analysis or paper in the identified period – refused order for production of certain contracts on basis that they were irrelevant and oppressive and may require disclosure of confidential contractual documents – Commission issued orders requiring production of documents falling within reformulated Categories 1 to 4 and Category 10 of the draft order (relating to specified annual statements and forecasting reports) but not otherwise. Esso Australia P/L v Australian Workers’ Union and Ors
May 2, 2017
ENTERPRISE AGREEMENTS – approval – undertakings – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission approved the CSRP Enterprise Agreement 2016 (the Agreement) after accepting undertakings proffered by respondent – appellant submitted three grounds of appeal – firstly, the Commission erred in being satisfied the Agreement was genuinely agreed to by employees covered by it – secondly, the Commission erred in being satisfied the terms of the Agreement did not contravene s.55 of the Fair Work Act – thirdly, the Commission erred in being satisfied the Agreement did not contain any unlawful terms – whether appellant had sufficient interest and connection to issue to be able to bring appeal – appellant was not a bargaining representative in relation to the Agreement and did not have a member who was employed by respondent when the Agreement was made – appellant contended it was aggrieved by decision because it had an interest beyond that of an ordinary member of the public and eligibility coverage under its rules – respondent submitted appellant did not have sufficient interest and connection to bring appeal because it did not show actual or apprehended impingement of its legal rights as result of first instance decision – Full Bench found appellant had requisite interest in first instance decision – CEPU v Main People applied – respondent’s challenge to appellant’s standing to bring appeal rejected – appellant’s appeal grounds considered – Full Bench not persuaded Commission at first instance erred in being satisfied the Agreement was genuinely agreed to – not persuaded that uncertainty or questionable legal efficacy in relation to term of an agreement is sufficient basis to doubt whether an agreement was genuinely agreed to – found there was sufficient information in respondent’s statutory declaration to support Commission’s finding of being satisfied the Agreement was genuinely agreed to – first ground of appeal rejected – appellant contended three provisions of the Agreement contravened s.55 – Full Bench found clause 5.5 of the Agreement would have effect of excluding an employee’s entitlement to be ‘paid annual leave’ and could exclude other NES entitlements – found clause 7.5 of the Agreement had the effect of excluding operation of ss.114(1) and (3) – found third paragraph of clause 8.1 of the Agreement was a term not permitted by s.55(4) – held clause was detrimental to employees because it denied employees full benefit of s.88 – clause did not contain one of the three requirements of permitted cashing out term as set out in s.93(2) – appellant contended clause 14 of the Agreement contained unlawful terms – Full Bench rejected this ground of appeal – Full Bench concluded appellant had made good the second ground of its appeal – permission to appeal granted – appeal upheld – decision to approve the Agreement quashed – respondent allowed 14 days from date of decision to provide any written undertaking it proposed. Appeal by Construction, Forestry, Mining and Energy Union against decision of Roe C of 9 December 2016 [[2016] FWCA 8835] Re: CSRP P/L
