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
April 24, 2017
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).
