ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – decision at first instance involved the exercise of dispute arbitration powers conferred upon the Commission by clause 33, Grievance and Dispute Settlement Procedure, of the Australian Paper (Enterprise) Agreement, 2016-2019 Maryvale Mill Mechanical – Maintenance and Engineering Store (Agreement) – the subject of the arbitration concerned whether a proposal by the appellant to reduce its current complement of boilermakers by three was permissible under clause 39, Security of Employment, of the Agreement – the AMWU contended that the implementation of the appellant’s proposal would contravene clause 39.2 because it infringed the prohibition against retrenchments – the appellant contended that its proposal involved a ‘significant change’ and thus fell within one of the exceptions to the retrenchment prohibition in clause 39.2 and was permissible – the Commission determined that it was not permissible – grounds for appeal submitted included the Commission erred reading clause 39.2 and erred in applying principles of statutory construction in treating clause 39.2 as a provision to be read beneficially in favour of employees – Full Bench considered permission to appeal should be granted – consideration of the appeal required, firstly, the identification of the proper construction of clause 39.2 and, secondly, the correct application of clause 39.2, so construed, to the facts of this case – necessary to interpret clause 39.2 in the immediate context of clause 39 as a whole and in the wider context of the Agreement as a whole – heading of clause 39 ‘Security of Employment’ is indicative of a purpose to protect the employment of those employees to whom the Agreement applies – immediate context therefore suggests that clause 39.2 was likewise intended to establish a meaningful protection pertaining to the security of employment of the employees covered by the Agreement – three exceptions listed, the first two in specific terms ‘should any major operating unit cease production, or a reduction in the number of operating shifts result in reduced output’ and the third in general terms ‘any other significant change’ – no real dispute between the parties about the meaning of these first two exceptions; it was the third generally expressed exception which was the source of the controversy – the third exception, nor the other two exceptions, lead directly to a right to retrench, but merely to a review of manning numbers by the ‘parties to the agreement’ – a decision to retrench personnel in the maintenance section could not itself be an ‘other significant change’ for the purpose of clause 39.2 – Full Bench considered the exception for any ‘other significant change’ in clause 39.2 must be read as referring to a change of the same character as the first two specifically-identified exceptions – that is, a change external to the maintenance and stores sections which might have consequences for the amount of work and the number of positions in those sections – Full Bench rejected appellant’s submission that the change was to be characterised as one to outsource work which would then lead to the review of manning levels contemplated by clause 39.2 – submission did not accord with the facts – decision to outsource was inextricably linked to the reduction of three positions and the retrenchment of two employees – to treat the appellant’s proposal as falling within the third exception in clause 39.2 would be tantamount to saying that clause 39.2 prohibited retrenchments from occurring during the term of the Agreement except where the appellant decided that retrenchments should occur – Full Bench considered the decision at first instance was correct in its interpretation of clause 39.2 and its application to the facts of the case – permission to appeal is granted – appeal dismissed. Appeal by Paper Australia P/L t/a Australian Paper against decision of Ryan C of 30 December 2016 [[2016] FWC 9050] Re: Australian Manufacturing Workers’ Union
April 24, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance, Commission dismissed Appellant’s application for extension of time for lodgment of application for unfair dismissal remedy – Appellant’s application lodged 11 months and seven days (307 days) outside statutory time limit – Commission not persuaded that Appellant’s difficulties were ‘out of the ordinary course, unusual, special or uncommon’ – permission to appeal sought by Appellant on four grounds: that he was denied right to place relevant material before Commission; that he was denied opportunity to advance argument as to merits; that findings were not reasonably open to Commission; and that he was denied of a hearing for extension of time where there were contested issues – Full Bench satisfied there were matters of fact in dispute at the time the application for extension of time was determined by Commission – Employer Response to Unfair Dismissal Application form was the only material from the Respondent before the Commission at the time of Decision – circumstances surrounding Appellant leaving his employment with Respondent and conclusions that could be drawn from this were clearly put in dispute by Respondent – Full Bench held that whilst no definitive finding as to whether or not Appellant had been dismissed was necessary, there were clearly facts in dispute, on which findings would be required to be made – held that Commission failed to comply with requirements of s.397 FW Act by not holding a conference or hearing – further, held that the conclusion that merits was a neutral consideration was not reasonably open to Commission – merits of case as put by Appellant should have been accepted because no contradictory position was put by Respondent – therefore the reasonable conclusion must be that merits of the case were favourable to the finding of exceptional circumstances – Commission had concluded that merits was a neutral issue but indicated no basis on which conclusion was reached, so it would have been obliged to find in favour of the application for an extension of time – permission to appeal granted – Decision and Order quashed – application for extension of time referred to Bissett C for rehearing. Appeal by Costelloe against order of Drake SDP of 3 January 2017 [PR589048] and decision of 12 January 2017 [[2017] FWC 214] Re: Origin Energy Resources Limited t/a Origin Energy
April 24, 2017
ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application for a bargaining order – on 16 February 2017 the applicant (Mr Ferguson) filed an application for bargaining orders in relation to the bargaining for a new enterprise agreement (New Agreement) to replace the Swan Transit Enterprise Agreement 2012 (Current Agreement) which notionally expired on 23 April 2016 (First Application) – on 28 February 2018, Mr Ferguson filed a second application for bargaining orders in relation to the bargaining for the New Agreement (Second Application) – the parties to the Current Agreement are Swan Transit Services P/L (Swan Transit), Swan Transit Services (South) P/L (STS) and Transit Systems WA t/a Transit Riverside Limited (TSWA) and the employees engaged by Swan Transit, STS and TSWA to primarily drive buses (Drivers) – the Current Agreement covers the Transport Workers’ Union of Australia (TWU) – Mr Ferguson filed both the First Application and the Second Application (Ferguson Applications) in his capacity as a bargaining representative of twelve of the Drivers – Swan Transit is one of three companies, the others being STS and TSWA, sharing the same shareholders and management, which operate bus services in Perth for the Public Transport Authority under various bus service contracts – the three companies employ approximately 840 drivers: 383 are employed by Swan Transit, 331 by STS, and 126 by TSWA – Swan Transit commenced bargaining with employee bargaining representatives on 5 February 2016 – 24 bargaining meetings held with the employee bargaining representatives and Swan Transit between 5 February 2016 and 24 February 2017 – proposed New Agreement was put up for approval on 6-8 June 2016 and another version put up for approval on 23-24 November 2016 – both versions of the proposed New Agreement received a majority of no votes from the Drivers – Mr Ferguson became an Employee Bargaining Representative in January 2017 and attended his first bargaining meeting on 10 February 2017 – Mr Ferguson has attended three meetings since – these meeting were held on: 13 February 2017, 20 February 2017 and 24 February 2017 – after the second bargaining meeting he attended and before the third Mr Ferguson filed the First Application – according to Swan Transit, Mr Ferguson did not serve the First Application on Swan Transit until 21 February, the day after the third bargaining meeting he had attended was held – at the bargaining meeting held on 24 February 2017, the majority of the bargaining representatives agreed to send the New Agreement to a ballot vote – Mr Ferguson filed the Second Application on 28 February 2017 and served it on Swan Transit the same day – Mr Ferguson asserted that he gave notice to Swan Transit that he had concerns that Swan Transit were not bargaining in good faith by way of a letter that he distributed by hand at the bargaining meeting held on 13 February 2017 – Swan Transit asserted that it has met, and continues to meet, the good faith bargaining requirements and that it has responded appropriately to Mr Ferguson’s concerns – Commission not satisfied that putting an agreement to ballot, when doing so is opposed by a minority of bargaining representatives who represent a small minority of the workforce, constitutes conduct in breach of the good faith bargaining requirements – held that evidence did not suggest that Swan Transit or the TWU was not genuinely engaged in the bargaining process – Commission not satisfied that one or more of the bargaining representatives have not met, or are not meeting, the good faith bargaining requirements. Ferguson v Swan Transit Services (South) P/L
April 24, 2017
CASE PROCEDURES – application dismissed on FWC’s own initiative – ss.512, 516, 589 Fair Work Act 2009 – finalisation of proceedings in respect of the right of entry permit of James Metcher – Mr Metcher had been the New South Wales, Postal, and Telecommunications Branch Secretary of the CEPU – prior to hearing initiated on Commission’s own motion, Mr Metcher tendered his resignation from all positions in the CEPU with immediate effect on 7 March 2017 – CEPU submitted that Commission’s own motion proceedings should be terminated as resignation rendered permit null and void – parties submitted confidentiality orders previously issued in proceedings should continue [PR590313] – Commission satisfied that due to Mr Metcher’s resignation there was no longer an entry permit held by him – as no practical utility or public interest in continuing the proceedings in the circumstances, Commission discontinued proceedings pursuant to s.589 of the FW Act – orders dealing with confidentiality of documents issued [PR591830]. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
April 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant summarily dismissed – applicant claimed dismissal was harsh, unjust or unfair – applicant employed on a traineeship by respondent, Sunraysia Murray Group Training (SMGT), but performed work at Regional Building Consultants (RBC) – completed timesheets that were signed by supervisor at RBC and then sent to SMGT for payment – timesheets were completed in triplicate with two carbon copies – RBC was billed by SMGT for time that applicant was absent from work – carbon copy of RBC timesheet showed no time worked for two days but a timesheet signed by a RBC supervisor that was submitted to SMGT claimed 7.6 hours worked on both days – applicant claimed in meeting with RBC to have worked all days – applicant later claimed to have made honest mistake and actually was not at work on relevant days – unable to provide explanation as to how timesheet came to be altered after it had been signed – respondent submitted that there was a valid reason for dismissal due to a deliberate falsification of timesheets – Commission satisfied that applicant altered time sheets after they had been signed – Commission satisfied that in absence of any reasonable explanation that alteration was not made by mistake – Commission held valid reason for termination of employment. Ryan-Dengate v Sunraysia Murray Group Training Ltd
April 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – Appellant dismissed following incident at work – Appellant was loading cornices onto a truck when the load dislodged and fell, almost hitting the truck jockey who had moved out of safe zone – Commission at first instance found Appellant’s dismissal was not unfair and dismissed the application – Full Bench found that the Commission made findings as to the Appellant’s acknowledgment of the seriousness of conduct but not findings as to the conduct itself – not open to the Commission to determine that there was valid reason for the dismissal – found the Commission erred in finding the Appellant did not properly report the near miss involving the jockey as the Commission had not made any findings as to the Appellant being aware of the near miss – held the Commission did not err in finding the Respondent’s safety policy was not applied inconsistently given Appellant had been on first and final warning and received number of requests to wear safety glasses – not satisfied errors relating to assessment that Appellant breached safety glasses policy or that Commission applied the incorrect question when determining whether Appellant’s conduct was sufficiently serious to support a finding of valid reason – satisfied appealable error in relation to two grounds of appeal in accordance with House v The King – permission to appeal granted – appeal upheld – application for unfair dismissal remedy referred to Cirkovic C for rehearing. Appeal by Palmer against decision of Cirkovic C of 9 January 2017 [[2017] FWC 147] Re: USG Boral Building Products P/L
April 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – jurisdictional decision found applicant was dismissed [[2017] FWC 543] – further proceeding to determine whether dismissal unfair – Small Business Fair Dismissal Code not complied with – no valid reason for dismissal – applicant not warned employment at risk – applicant not provided with opportunity to respond to any concerns about conduct or capacity – real reason for dismissal was breakdown in relationship between applicant and respondent’s son – respondent argued that if situation with applicant’s husband was ‘fixed’ then she could return to work – respondent then accused applicant of theft to justify dismissal – whether harsh, unjust or unreasonable – no valid reason – applicant not notified of (valid or invalid) reason for dismissal until day of dismissal – no opportunity to respond – no warnings about conduct or capacity – respondent claims long history in business and industry – not reflected in dismissal procedures – satisfied dismissal harsh, unjust and unreasonable – applicant unfairly dismissed – reinstatement inappropriate given bitter relationship between applicant and respondent – compensation considered – evidence applicant made considerable effort to mitigate loss whilst acting as principal carer for her five children – given family responsibilities, applicant unlikely to have resigned from job which afforded her considerable flexibility – estimated length of future employment at least six months – amount earned since dismissal deducted – no other deductions – added three weeks’ pay in lieu of notice – ordered compensation in amount of $29,714.30. Sirl v HK Group P/L t/a Buzzbee Long Day Care Centre – No.2
April 24, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for relief from unfair dismissal dismissed at first instance – appellant applied for permission to appeal two decisions relating to appellant’s application for unfair dismissal remedy – first decision decided no genuine redundancy – second decision did not find dismissal harsh, unfair or unreasonable – in second decision the Commission relied on findings made in first decision to support conclusions – Full Bench considered whether it was in public interest to grant permission to appeal – whether decision at first instance involved significant error of fact – Coal & Allied and GlaxoSmithKline applied – rarely appropriate to grant permission to appeal unless arguable case of appealable error is demonstrated [Wan] – Full Bench not persuaded that appellant’s grounds of appeal disclosed arguable case of error – permission to appeal refused. Appeal by Smith against decisions of Cloghan C of 25 August 2016 [[2016] FWC 5788] and 28 September 2016 [[2016] FWC 6861] Re: AWH P/L
