ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application for a majority support determination – Muswellbrook branch of Hitachi Construction Machinery (Australia) P/L (Hitachi) supplies mining and construction equipment and related services, parts and technical support – some employees work predominantly at service workshop at Muswellbrook branch but most spend significant time working at different coal mines around Hunter Region – Construction, Forestry, Mining and Energy Union (CFMEU) contends that 17 service employees of Hitachi who work at Liddell open cut coal mine (Liddell Mine) in Hunter Valley (Employees) are not covered by Hitachi Construction Machinery (Australia) P/L Service Enterprise Agreement 2014 (Agreement) and want to renegotiate their own agreement with Hitachi – applied for majority support determination in relation to Employees – parties requested that Commission determine whether the Agreement covered the Employees as a threshold issue in proceedings – CFMEU contended in order to be covered by Agreement, an employee must work and be based and perform work at the Hitachi Muswellbrook branch 190, 27-35 Thomas Mitchell Drive, Muswellbrook and perform work at other locations in accordance with the needs of business conducted from the Muswellbrook Hitachi branch – Hitachi contended that Agreement covered service employees engaged in Muswellbrook operations while they were performing work at service workshop, as well as site work – Golden Cockrell P/L considered – Commission found there was ambiguity or uncertainty in coverage clauses of Agreement concerning whether service employees must perform work at each of the locations referred to in CFMEU’s claim or whether they were covered if performed work either at service workshop or site location as contended for by Hitachi – Agreement must be construed as a whole – evident that part of service work undertaken by service employees is performed at workshop in Muswellbrook but other service work is undertaken ‘in the field’ – unsurprising given that Hitachi’s business involves sale and servicing of mining and construction equipment, much of which cannot easily be transported to workshop for servicing or repairs – under construction contended by CFMEU, employees would only begin to be covered by Agreement once undertaken work at Muswellbrook branch and some work at site location – as a result, employees would become covered by Agreement at different times – some employees would never become covered by the Agreement, some employees would become covered soon after commencing operation and other employees would only become covered in third or fourth year of Agreement when they undertook work in service workshop, having worked rest of the time at one or more mine sites – Commission found that Hitachi’s interpretation of coverage provisions of Agreement accorded with business common sense but CFMEU’s did not – Commission satisfied on evidence that each Employee was covered by Agreement because they were service employees (classifications 4S to 1S) who worked at Muswellbrook branch of Hitachi, based at 27-35 Thomas Mitchell Drive, Muswellbrook and who performed work in service workshop and/or in locations designated by the Muswellbrook branch from time to time – application dismissed. Construction, Forestry, Mining and Energy Union – Northern Mining and NSW Energy District v Hitachi Construction Machinery (Australia) P/L
April 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief for unfair dismissal – respondent is a small business with only four employees – respondent argued the applicant was terminated for serious misconduct on the basis that she hit respondent with loose papers and failed to follow a lawful direction and leave the premises after terminated – applicant submitted she intervened in what she thought was a serious and possibly violent argument – submitted the respondent pushed her and attempted to remove her from her chair resulting in her falling backwards onto the floor and suffering injuries – Commission regarded the respondent’s behaviour as a serious breach of OH&S – Commission accepted that applicant struck the respondent on the shoulder in a non-threatening manner – Commission found actions of the respondent contrary to that of a model employer – Commission found the summary dismissal of the applicant was not in accordance with the Code – Commission found that as applicant did not act violently towards respondent, her actions did not constitute a valid reason for dismissal – both parties submitted employment relationship had irretrievably broken down – Commission found applicant’s actions constituted misconduct at the low end of the spectrum and discounted order for compensation by 5% – Commission found applicant was unfairly dismissed and order for compensation made. Ferla v C&V Engineering Co P/L t/a C&V Engineering Services P/L
April 24, 2017
TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – application by respondent for costs – applicant was employed as Production Team Leader with respondent prior to termination on 11 July 2016 – application for relief from unfair dismissal lodged by applicant was dismissed on 3 October 2016 – respondent submitted that the application was made vexatiously, without reasonable cause and had no reasonable prospects of success because it was lodged outside of 21 days without explanation for the delay; applicant was a casual employee; and applicant was dismissed for serious misconduct – respondent further submitted the applicant provided misleading information on the application by stating the date of dismissal took effect on 22 July 2016 rather than the actual date of 11 July 2016 – respondent claimed $1980.00 incurred in legal costs – s.611 FW Act considered – Commission satisfied that application was not made vexatiously as applicant believed that he was entitled to payment in lieu of notice based on letter sent in error from respondent and that the effective date of dismissal was, therefore, at end of notice period on 22 July 2016 – applicant took advice from employment law centre to lodge a remedy for unfair dismissal claim – Commission satisfied there were no circumstances in which it was reasonably apparent to applicant that the application was unlikely to be successful, particularly since the effective date of dismissal was disputed – application for costs dismissed. Brown v Kingskipp P/L atf the RJ King Family Trust t/a Gateway Printing
April 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute arising under the CBH Kwinana Plant Operators Collective Union Agreement 2013 (the Agreement) – respondent decided to engage 11 additional casual employees to work as Plant Operators – applicant contended respondent was required to but did not comply with clause 34 Consultation about Change (Consultation clause) of Agreement before engaging casual employees – respondent argued Consultation clause did not apply in the circumstances – issue whether Consultation clause in Agreement applied in the particular circumstances and whether there was an obligation to consult – applicant contended engaging additional casual employees was a change in the organisation of labour or to the structure of the workforce and was a ‘significant effect’ – further argued change would result in diminution of opportunities to work overtime for some existing employees – respondent contended applicant’s interpretation of Consultation clause was strained, oversimplified and pedantic – argued ‘change’ meant an act or process through which something becomes different – noted it had a casual pool of employees available to perform work on a casual basis and had a long history of engaging casual employees during busy periods – argued therefore engagement of casual employees was not a ‘change’ through which its business became different but a continuation of a system that pre-dated the Agreement – construction of Consultation clause – Commission held not all likely changes to composition or size of a workforce will be likely to have a significant effect – held if the clause was to mean obligation to consult applied when there was a change that had any effect on employees, the word ‘significant’ would not have been used – use of ‘significant’ twice in clause cannot be ignored – onus on applicant to provide evidence to support its application – Commission found no evidence that between when new casual employees began work at end of November 2016 and February 2017 there had been any actual effect on existing employees let alone evidence of a significant effect – found no evidence of diminution of opportunities for existing employees – Commission found on the evidence engaging additional casual employees was not likely to have a significant effect on existing employees – no obligation for respondent to notify employees or hold discussions under Consultation clause – respondent not required to comply with Consultation clause prior to engaging additional casual employees – dispute determined. The Maritime Union of Australia v Co-Operative Bulk Handling Limited t/a CBH Group
April 24, 2017
ENTERPRISE BARGAINING – majority support determination – ss.236, 237 Fair Work Act 2009 – application for majority support determination to undertake bargaining – respondent opposed application – initial November 2016 employee petition lost and a new petition made in March 2017 – respondent argued no majority of employees wished to bargain and no need to bargain – after application lodged, respondent held own secret ballot of employees – ballot abandoned due to different questions on the notice and the ballot – scope of second respondent ballot different from NUW application – disagreement between parties about number of employees for the purposes of determining majority – evidence provided regarding eligibility of a number of disputed employees in the petition – Commission satisfied application properly made and group of employees fairly chosen – Commission satisfied a majority of eligible employees wanted to bargain – determination issued. National Union of Workers v Early Settler P/L
April 24, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed on casual basis – took leave due to non-work related knee injury – returned to work to a new assignment – expressed some dislike to respondent about the assignment but attended the required location on 19 December 2016 – due to applicant’s work vehicle issues and missing necessary safety equipment, returned back to the workshop – contended to be terminated in the meeting with respondent – respondent asserted that applicant was not terminated – parties disputed as to what was said in the meeting – Commission considered principles of Barkla, Mozhab and O’Meara – preferred respondent’s evidence because of consistency, context and sequence of events – Commission held neither the respondent’s conduct nor the communications between the parties, whether considered in isolation or collectively, expressly terminated an employment relationship – applicant not dismissed by respondent – application dismissed. Hooker v Robert Guy and Sons P/L
April 21, 2017
The Easter hearing window concludes today. Twenty four unfair dismissal/employment dispute applications will be heard today by the Fair Work Commission. The full list is: Puch Construction & Building Pty Ltd (Wheeler), Suretrak Global Pty Ltd (Konstanta), 3Q Holdings Pty Ltd (Carey), Beaumaris Sports Association Incorporated (Doran), AICA Engineering Pty Ltd (Kaushal), Bluetree Holdings Pty Ltd (Hartell), Hire Intelligence Pty Ltd (Viola), Westbourne Grammar School (Martin), EnergyAustralia Pty Ltd (Verhoeven), AHG Pty Ltd (Xipolitos), Department of Human Services – Centrelink (Bringolf), First Educational Services Pty Ltd (Lynam), JAGGAD Pty Ltd (Mo), Orica Australia Pty Ltd (Connell), Abbeyglaze Pty Ltd (Lewis), Estia Investments Pty Ltd (Loveday), The Trustee for SWC Unit Trust (Webb), Nortex (Hill), Steelworks Constructions Pty Ltd (Rafton), Barada Barna Aboriginal Corporation (Dargan, Roos), La Forza Holdings Pty Ltd (Stephens), Mr Jacek Pete / Mr Jack Pete (Hadgecostas), Re-Engage Youth Services Incorporated (Moncrieff).
April 20, 2017
ANNUAL WAGE REVIEW – 2016/17 financial year – preliminary hearing – s.284 Fair Work Act 2009 – Full Bench – in the Annual Wage Review 2015-16 decision (the 2015-16 Review decision) [[2016] FWCFB 3500], the Expert Panel (the Panel) proposed that two issues be the subject of a preliminary hearing for the 2016-17 Annual Wage Review (the 2016-17 Review) – a review of the transitional instruments relevant to annual wage reviews; and the existing arrangements for employees with disability – in their submission to the 2015-16 Review, United Voice proposed that the Panel conduct a separate process of submissions and hearings in relation to setting a medium-term target as an ‘additional tool to assist it in the performance of its annual obligations’ – the Panel agreed and indicated that the proposal for the adoption of a medium-term target would form part of the preliminary hearing for the 2016-17 Review – proposal for a medium-term target – on 19 September 2016, a background paper prepared by staff of the Commission was published to assist submissions for the hearing into the setting of a medium-term target for annual wage reviews – submissions in favour of a medium-term target were received from United Voice, the Australian Council of Trade Unions (ACTU), the Australian Council of Social Service (ACOSS) and the Australian Catholic Council for Employment Relations (ACCER) – submissions argued that a medium-term target was necessary to assist with consideration of the relative living standards and needs of the low paid by addressing inequality, particularly the minimum wage relative to median earnings – the submissions that proposed a medium-term target suggested that it be set at 60 per cent of median earnings in four years – Submissions from the Australian Government, the Australian Industry Group (Ai Group), Australian Business Industrial and New South Wales Business Chamber (ABI and NSWBC) and the Australian Federation of Employers and Industries (AFEI) did not support a medium-term target – these submissions generally contended that a medium-term target was inconsistent with or not supported by the Fair Work Act – parties also argued that such a target would reduce the Panel’s flexibility to respond to changing economic conditions – the FW Act requires the Panel to conduct and complete a review of the national minimum wage and minimum wages in modern awards – the Panel held it was clear and uncontroversial that in the context of a particular Review the Panel cannot ‘bind’ future panels in subsequent reviews – follows that any attempt to adopt a ‘hard’ or binding medium term target for the NMW would be ineffective (even if it were accepted that the Panel had power to adopt such a target) – whether any useful and appropriate purpose would be served by adopting a more ‘flexible’ medium-term target – minimum wages objective and modem awards objective considered – there is often a degree of tension between the economic, social and other considerations which the Panel must take into account – the Panel noted that given the legislative context and its approach to its statutory task a ‘flexible’ medium- term target would be of little assistance – transitional instruments – in the 2015-16 Review decision the Panel proposed that a review be conducted of transitional instruments that arose for consideration in the Annual Wage Review process in the following year’s review – on 19 September 2016 the Commission released, among other things, a background paper traversing issues and materials relevant to a review of transitional instruments – transitional instruments are those which were created by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act) and State industrial relations systems and preserved in operation, transitionally or otherwise, by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) – a number of interested parties lodged written submissions in relation to the issue raised – the Panel considered that it should not at this stage proceed to terminate any transitional instruments, for two reasons – first, there is a question about the power to terminate transitional instruments as part of the conduct of an annual wage review – there is no express power conferred to terminate a transitional instrument in the course of an annual wage review – second, the proceedings in the All Trades matter has left in doubt the course that should appropriately be taken to the transitional APCSs applicable to apprentices and trainees in the State of Queensland – the Panel considered that the appropriate step to take at this stage was to invite interested parties to make further submissions about whether the termination power in item 3 of Schedule 5 and/or the other powers of termination provided for in the Transitional Act are exercisable in the conduct of an Annual Wage Review – review of existing arrangements for employees with disability – in submissions to previous Annual Wage Reviews, ACOSS raised concerns about the complexity of the system of wages for employees with disability and the appropriateness of the minimum wage rate for those whose productivity is affected by a disability being set at the income test free level for the Disability Support Pension (DSP) – in addition to making a National Minimum Wage Order (NMWO) for all award/agreementfree employees and reviewing modem award minimum wages, the Panel must set special National Minimum Wages (NMWs) for employees with disability – s.12 of the FW Act defines an ’employee with a disability’ as ‘a national system employee who is qualified for a disability support pension as set out in s.94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(l)(e) or 95(1)(c) of that Act’ – in Annual Wage Reviews decisions the Panel has set two special NMWs for employees with disability – as part of the present Review, the Panel has foreshadowed a more detailed review of existing wage arrangements for employees with disability – to that end, the Panel issued a Background Paper and has received written and oral submissions from interested parties – Background Paper raised a series of questions concerning: setting and varying wage rates for employees whose disability does not impact on their productive capacity (special NMW1); setting and varying wage rates for employees whose productive capacity is affected by their disability (special NMW2); and further research – NMW1 – the Australian Government and almost all parties making submissions recognised that setting special NMW1 was required by s.294 of the FW Act – whilst recognising the statutory constraints, ACOSS and the ACTU contended that it was inappropriate to have a separate minimum wage for employees with a disability that did not affect their productive capacity – the Panel considered that as a result of the combined effect of s.294(3)(c) and the relevant definition in s.12, it is necessary for the Panel to provide a minimum wage for all employees with a disability including those whose disability does not affect their productive capacity – the Panel will continue to set special NMW 1 as part of our annual review – NMW2 – employees whose productive capacity is affected by their disability could be considered to be those who are ‘unable to perform the range of duties to the competence level required within the class of work for which they are engaged’ – the Supported Wage System (SWS) was developed in 1994 by the Commonwealth Government, working together with peak employer and union councils and bodies representing people with disability – the SWS is a wage-setting system that allows employers to pay productivity based wages for employees with disability – the SWS forms part of some modem awards and requires that formal agreements be made in relation to each employee – the Australian Government advised the Panel that there were just over 5,700 employees subject to SWS agreements in 2015-16 – in recent years, in setting special NMW2 the Panel has used the SWS as a basis for determining pro-rata wages for employees with disability whose disability affects their productivity, and determined the minimum wages for these employees should be set at the same rate as the weekly incomefree threshold for a single person receiving the DSP – the Background Paper raised a series of questions concerning the basis for, and level of, special NWM2 – the Australian Government, Ai Group, ABI and NSWBC and National Disability Services (NDS) supported maintaining the current method of setting minimum wages for SWS employees at the income-free DSP threshold amount – ACOSS restated its position from previous Reviews, that the minimum wage rate under the SWS for employees with disability was too low – the ACTU submitted that the Commission should exercise caution in dealing with special NMW2 and the SWS, since it came about from extensive research, consultation and consensus – the Panel do not consider that it is appropriate to deal with the detail of the issues concerning special NMW2 at this point – the Panel will further consider this matter, including any developments, in the subsequent consultations to be conducted in 2017 – research – the Panel invited proposals about additional research that should be conducted in relation to wage setting for employees with disability – the Panel will refer the research proposals that have been advanced to the Minimum Wages Research Group and consider any recommendations made in light of the available funding. Annual Wage Review 2016-17 – Preliminary hearing
