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
May 2, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – contract for a specific task – s.394 Fair Work Act 2009 – respondent labour hire company provided labour hire employees to businesses which include Placard P/L (Placard) – applicant paid by respondent as casual employee and generally worked regular and systematic hours with Placard – applicant injured wrist and took few days off work – applicant not rostered on for following week – respondent claimed not being rostered for that week was no way due to applicant’s injury but by needs of client – subsequent emails between applicant and respondent about work pointed strongly to attempts by respondent to further the employment relationship and offer applicant additional work – applicant accepted had work been offered in appropriate location, she would have accepted the work – applicant not pursuing those work opportunities was by no means respondent’s fault – employment was terminated not because of any act of the respondent – the act of ending the assignment was an act of Placard – Commission satisfied that applicant was not dismissed – no jurisdiction – application dismissed. Singh v Labourforce Impex Personnel P/L
May 2, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed since 11 August 2014 and notified of dismissal on 1 September 2016 – respondent submitted an F3 stating applicant was terminated on 31 August 2016 because he refused to clean up unset concrete as instructed by his supervisor – respondent did not participate in the hearing – Commission found no valid reason for dismissal, no notification of a valid reason or an opportunity to respond – found the termination was harsh and unjust – ordered compensation of $12,433.60. Melim v Construction Staff NSW
May 2, 2017
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – applicant absent from workplace due to illness from September 2016 until termination in December 2016 – respondent dismissed applicant because absence from workplace no longer temporary and therefore applicant unable to perform inherent requirements of position – applicant submitted he could return to work if reasonable adjustments made by respondent – applicant’s medical practitioner proposed conference between parties be carried out to try and define issues and work out long term sustainable solution for applicant’s return to work – respondent rejected medical practitioners proposal – satisfied not reasonable for respondent to conclude that reasonable adjustments were not available without first responding to proposal made by applicant’s medical practitioner – satisfied it was premature to reach conclusion applicant unable to perform inherent requirements of job – no valid reason for dismissal – dismissal harsh and unjust – reinstatement inappropriate as relationship of trust and confidence between parties broken – $7,631.16 compensation less taxation ordered. Naeem v Boroondara City Council
May 1, 2017
The Fair Work Commission has twenty one unfair dismissal/employment dispute applications to hear today. The full list is: Shining Knight Facility Services (Reid), L.R. Enterprises Australia Pty Ltd (Clark), Aroona PT&T Pty Ltd (Colella), Mark Moran at Little Bay Pty Ltd (Gebremeskel), Terumo Australia Pty Limited (Havier), University of Sydney & Graham (Lum), Harbour Roof Tiling Pty Ltd (Raza), Pittwater High School P & C Association (Inc) (Groves), Cafe SA Pty Ltd (Kurda), Glenelg Financial Services Pty Ltd (Taylor), AO Tong Bao Pty Ltd (Palmer), Linfox Armaguard Pty Ltd (Borg), Crossmark Australia Pty Limited (Iurato), Beechworth Montessori Children’s Group Incorporated (Martin), Ikon Administration Pty Ltd (Tham), Ventura Buslines (Hill), Plantagenet Bakery (Barnes), Remote Fire (WA) Pty Ltd (Hayman), PCI Services Pty Ltd (Rose-Wilson), Aroona P&T Pty Ltd (Colella), The Commonwealth of Australia (Department of Immigration and Border Protection) (Gibbens).
April 28, 2017
The week finishes with 34 applications for employment relief in the Fair Work Commission. The full list includes: Futuris Automotive Interiors Pty Ltd (Illingworth), The C Hammick Family Trust & The Trustee for The Andrew Dean Family Trust (Kalioros), Citycoast Freight (Chaffey), Ventia Pty Ltd (Alvisio), Southern Star Road Pilots Pty Ltd (Gerchow), Jeanette Margaret Kennedy (Waldron), Football Brisbane Inc (Austin), Shandong Energy Co (Xu), Lifestyle Solutions (Aust) Ltd (Thompson), Dolci Firme Shoes (Biskup), Circa 1821 Admin Pty Ltd (Whitehead), The Trustee for Bartlett Family Trust (King), Monash University (Oliver), BlueScope Steel Limited (Willmot), Direct Fright Express Pty Limited (Shinan), Booth Transport Pty Ltd (Hourigan), 3D Scaffolding (Trialonas), Desago Real Estate Pty Ltd (Stevenson), Department of Education and Training (Adams), Volunteer Task Force Inc (Gillet), DDP Dream Design Property (Cavar), Millenium Hi Tech Group Pty Ltd (Kheir), Surfside Properties (Ulladulla) Pty Limited (McLennan), AAPC Properties Pty Limited (Janma), Mereweather Golf Club Ltd (Wilson), Weir Minerals Australia Ltd (Cohen), Kentz Pty Ltd (Ketchup, Weekley, Harbrow), Southern Star Road Pilots Pty Ltd (Gerchow), Regents on the Lake / Me-n-u Catering (Donovan), Federation University (Pallet), Neibo Real Estate Pty Ltd (Carlin-Smith), K&S Freighters Pty Ltd (Souter).
April 27, 2017
The lines get longer. 38 unfair dismissal/employment contract disputes will be heard today. The full Fair Work Commission list is: Trident LNG Shipping Services Pty Ltd (Kingshott), Toll Energy & Marine Logistics (Sekulovski), Chubb Fire and Security Pty Ltd (Arnold), Gowrie NSW (Ragen), The Sisters of Our Lady of China Health Care Pty Ltd (Agawin), DuluxGroup (Australia) Pty Ltd (Steele), Republic of Everyone Pty Ltd (Buffee), Sydney Trains (Singh), TSA (Vic) Property Trust as Trustee Salvation Army (Vic) Social Work (Ewels, Talarico, Bokori-Mayman), GM Holden Ltd (Pawlikowski), PricewaterhouseCoopers (Ochiltree-Dean), CNW Maitland (Roskell), Startrack Express Pty Ltd (Sims), Regents on the Lake / Me-n-u Catering (Donovan), Australian Crime Commission (Knight), I Want Energy Pty Ltd (Menzie), Monash University (Oliver), Bendigo and Adelaide Bank Ltd (Konakalla), Bluescope Steel Limited (Willmot), Eastern Volunteer Resource Centre Inc (Cheese), Kirinari Community Services (Milojevic), The trustee for ausfront unit trust (Carr), Filipino Community Co-Operative Limited (Farley, Vella), McArthur River Mining Pty Ltd (Hill), Austin Health (Pritchard), ALH Group (Danieli), Martindale ACF Pty Ltd (Issell), QKWS Unit Partnership (Walsh), West Motorsport Australia Pty Ltd (Steer), Boral Hollostone Masonry (de-Ruiter), IPA Personnel (Lodge), Autism Queensland Limited (Simic), Helensvale Community Golf Club (Chandler), Carlswood Transport (Valks), Jeanette Margaret Kennedy (Waldron).
April 26, 2017
Application volumes are back to pre-Easter levels. 50 unfair dismissal cases are listed for hearing today. The full list is as follows: Korte’s Resort (Chambers), Fodder Solutions International Pty Ltd & Fodder Solutions (Sales) Pty Ltd and Others (Jan Jolink), Estia Investments Pty Ltd (Loveday), Corporation of the Synod of the Diocese of Brisbane (Furby), Skilltech (White), InspireCycle Pty Ltd (Tallick), The Trustee for the Grundy Family Trust (Atkins), Australian Crime Commission (Knight), Enterprise Marketing & Research Services (Hutchinson), Bendigo and Adelaide Bank Ltd (Konakalla), Adventure Brands Proprietary Limited (McGowan), BlueScope Steel Limited (Willmot), Goodstart Early Learning Ltd (Chau), CR Comms Pty Ltd (Cincotta), Admiral Holdings Pty Ltd (Kowald), Co-Operative Bulk Handling Limited (Petchell), ISS Security Pty Ltd (Gohir), Global Construction Services Ltd (Adams), Talking Heads Speech Pathology (Aron), Chubb Fire and Security Pty Ltd (Arnold), Rashay’s Hume Hwy Franchise (Singh), Millennium Hightech Group Pty Ltd (Kheir), Terumo Australia Pty Limited (Havier), Teekay Shipping (Australia) Pty Ltd (Wood), CKC Accountants Pty Limited (Marshall), Custom Bus Australia Pty Ltd (Khalil), Lighthouse Beach Realty (2015) Pty Ltd (Rex), The Trustee for The KG Service Trust (Scott), The Trustee for Karratha Tavern Unit Trust (Busher), Magill Campus and Community Children’s Centre Inc (Edgecomb), Fawcett Plumbing Pty Ltd (Knight), West Motorsport Australia Pty Ltd (Steer), Viterra Operations Pty Ltd (Kerley), Lutheran Community Care (Harpur), The Hair Room Lancefield (Brown), Yaringa Boat Harbour (Miller), Bluescope Steel Limited (Willmot), Subway Broome (Rowland), Impact Youth Service Pty Ltd (Bundy), CJ Express Sydney Pty Ltd (Jiang), ACP (Faalogo), Redwood & Co Pty Ltd (Shrotriya), The Sisters of Our Lady of China Health Care Pty Ltd (Agawin), Puch Construction & Building Pty Ltd (Wheeler), Virgin Australia Airlines Pty Ltd (Quarmby), Omega Greenpower Limited (Parkes), Direct Brand Distributors (Sauni), Heritage City Electrical Pty Ltd (Stokes), Nyrstar Port Pirie Pty Ltd (Langford-Ely), Alliance Paper Pty Ltd (Murphy).
