TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – Commission at first instance declined to grant extension of time for unfair dismissal remedy – lodged one day outside 21 day time limit – appellant submitted representative error – Commission found it is not reasonable for applicant to rely on friend/agent not experienced or involved in law to file application – no acceptable reason for delay – concluded no exceptional circumstances – s.400 FW Act applied – appellant submitted appeal enlivened public interest in its favour regarding rights of represented applicants relying on paid agents – Full Bench rejected submissions – held that Commission at exercised discretion in a manner appellant did not like – not satisfied matter at first instance in a class that warranted guidance from an appellate bench – not persuaded that decision at first instance was attended by an error or principle or significant error of fact – no basis that would justify the grant of permission to appeal in in the public interest or otherwise – permission to appeal refused. Appeal by Bennett against decision and order of Dean DP of 14 March 2017 [[2017] FWC 1412] and [PR590913] Re: McCarrolls of Moss Vale P/L t/a McCarrolls Automotive Group
April 20, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by CFMEU for a right of entry permit for Mr Greenfield – Mr Greenfield is a CFMEU organiser – Mr Greenfield has been issued with an entry permit previously on 9 January 2014 – Commission considered declarations disclosed in application to determine if Mr Greenfield was a fit and proper person to hold permit – declaration disclosed that in 2016 Director of Fair Work Building Industry Inspectorate commenced three court proceedings again Mr Greenfield and others – Commission found no findings of contravention have been made against Mr Greenfields in regards to these matters thus not considered applicable at this time – declaration disclosed Mr Greenfield held entry permit from 9 January 2017 – it was not returned to the Commission upon expiry because Mr Greenfield had lost it – loss of entry permit resulted in failure to return permit within 7 days of expiry – breach of s.517(1)(c) of FW Act civil penalty provision – loss of permit demonstrates lack of diligence which is adverse to a finding that he is a fit and proper person – Commission satisfied Mr Greenfield received appropriate training – has never been convicted on an offence against industrial law of law of Commonwealth State or Territory or foreign country – Mr Greenfield never order to pay a penalty under an Act or industrial law – no entry permit been issued and then revoked or suspected or made subject to conditions – lack of diligence not sufficient to disqualify him from holding a permit – Commission satisfied on overall balance that Mr Greenfield is a fit and proper person to hold an entry permit – permit to be issued. Construction, Forestry, Mining and Energy Union – Construction and General Division
April 20, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – ss.385, 386, 394 Fair Work Act 2009 – applicant left work premises following conversation with colleague about performance – failed to return to work – applicant claimed that respondent’s failure to contact him indicated that his employment was terminated – respondent made jurisdictional objection to application on basis applicant had resigned or abandoned employment – applicant claimed he contacted respondent about conversation – respondent denied this – Commission found applicant did not return to premises or contact respondent following event – Commission found applicant had no reason to believe he was terminated – found colleague did not have power to terminate applicant’s employment – jurisdictional objection upheld – application dismissed. Chand v MTP Marble Granite Sandstone t/a MTP Marble Granite Sandstone
April 20, 2017
CASE PROCEDURES – stay order – ss.595, 606 Fair Work Act 2009 – appeal – application for stay of Decision Commission regarding whether enterprise agreement limits jurisdiction of Commission to arbitrate dispute – in Decision, Commission concluded parties empowered Commission to exercise any method of dispute resolution permitted under enterprise agreement – Commission satisfied appellant raised important questions concerning application and construction of ss.595 and 739 FW Act – satisfied arguable case for appeal with some reasonable prospect of success – further matter involving parties before Asbury DP – appellant submitted no steps to delay matter before Asbury DP would be taken if stay granted – this concession critical in considering balance of convenience in granting stay – stay granted. Appeal by CC P/L t/a Cook Colliery against decision of Spencer C of 13 March 2017 [[2017] FWC 1447] Re: Construction, Forestry, Mining and Energy Union
April 20, 2017
RIGHT OF ENTRY – application for permit – ss.512, 513 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch for issue of right of entry permit for Mr Michael Robinson – whether Mr Robinson a fit and proper person to hold an entry permit – fit and proper person description used as a measure of suitability to perform or carry out a particular function or be given a particular right or privilege [Maritime Union of Australia] – Mr Robinson had held entry permit since October 2008 – in May 2016 Mr Robinson was found to have deliberately contravened s.417 of the FW Act and was fined $6,700 (Bechtel dispute) – three month suspension of permit and conditions imposed – Mr Robinson also found to have been involved in organising unprotected industrial action in September 2016 (Lendlease dispute) – Commission considered permit qualification matters in s.513(1) of the FW Act – considered Bechtel and Lendlease highly relevant to consideration of whether Mr Robinson a fit and proper person to hold an entry permit and relate to his general attitude to complying with industrial law – noted inappropriate conduct in Lendlease dispute happened only three months after Mr Robinson was subject to penalties as a result of Bechtel dispute – drew inference Mr Robinson had not learned the error of his ways – Commission not satisfied Mr Robinson would perform role as a permit holder in a way that respects the obligations of that role – not satisfied any conditions could be imposed in accordance with s.515(1) of FW Act that would alter that assessment – found Mr Robinson was not a fit and proper person to hold an entry permit – application refused. Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch
April 20, 2017
TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – applicant received termination letter from his father on behalf of the respondent on 19 August 2016 – respondent alleged applicant transferred $5000 from the company’s bank account to his own, removed a computer from the premises and removed $990 cash from a company delivery vehicle – respondent alleged all actions were done without authorisation – the applicant was not notified of or asked about any of the three alleged actions that led to his termination before he received the letter – applicant did not deny he transferred money from company’s bank account to a business credit card – applicant submitted the respondent was aware the account was used almost exclusively for expenses incurred in relation to the respondent’s business – applicant also did not deny removing the computer – respondent subsequently withdrew allegation regarding $990 cash – Pinawin v Domingo considered in determining whether employer had complied with Small Business Code for dismissal – Commission considered respondent did not carry out a reasonable investigation into the applicant’s alleged misconduct before terminating his employment – determined dismissal not consistent with the Code – Commission found none of the three instances of alleged misconduct in the applicant’s termination letter constituted a valid reason for dismissal – respondent conceded applicant was not notified of the reason for dismissal until it took effect – found dismissal was harsh, unjust and unreasonable – procedural fairness not afforded to applicant – remedy of reinstatement not appropriate applicant awarded compensation – compensation calculated using Sprigg formula – Commission determined applicant would have continued to be employed for four weeks – no remuneration earned by applicant in first four weeks after dismissal – nothing deducted for contingencies – ordered compensation of $8,384.60 less taxation. Pomering v Ronpom P/L t/a Millers Turf Farm
April 20, 2017
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158(1) Fair Work (Registered Organisations) Act 2009 – proposed changes sought by the Australian Maritime Officers’ Union (AMOU) – eligibility for membership to include employers of any successors or assignees of the businesses listed in Rule 6, Part 3(c) including but not limited to Port Authorities – objection lodged by Australian Municipal, Administrative, Clerical and Services Union (ASU) – parties entered into negotiations and an agreement was reached – Memorandum of Understanding executed – undertaking by AMOU not to seek to enrol persons eligible for ASU membership who are employed by the Gladstone Port Corporation other than those persons who principally perform their duties in relation to Port Alma (Rockhampton) and/or Port of Bundaberg, further not to seek to enrol persons who are currently members of the ASU – Commission satisfied of requirements of the RO Act and Regulations – Commission consents to changes to eligibility rules sought by association – changes to rules to take effect from date of decision. Australian Maritime Officers’ Union, The
April 20, 2017
ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – applicant applied for bargaining order requiring respondent to cancel ballot in relation to proposed enterprise agreement and to meet with them and other bargaining representatives to bargain over certain clauses in proposed agreement – respondent was bargaining with employees and applicant for enterprise agreement to replace WorkPac P/L Mining (Coal) Industry Enterprise Agreement 2012 – negotiations for proposed agreement commenced in May 2016 and parties held 13 bargaining meetings and exchanged 14 drafts of proposed agreement – in November 2016 respondent put proposed agreement to ballot of employees which was rejected by majority of employees who cast a vote – meetings recommenced between the parties – on 20 March 2017, respondent wrote to bargaining representatives and forwarded them draft 14 of proposed agreement – respondent advised applicant that this was their final offer and that it intended to commence pre-voting requirements to allow proposed agreement to be put to a ballot of employees – applicant submitted it did not believe respondent had met requirements in ss.228(1)(d) and (e) of the FW Act because it failed to give bargaining representatives proper opportunity to engage with employer in respect of classification structure in Schedule 1 of proposed agreement – applicant sought an undertaking from respondent that it would cancel ballot and convene further bargaining meetings to discuss classification structure – respondent declined to provide undertakings sought by applicant – applicant submitted respondent had peremptorily terminated bargaining in order to avoid negotiating with employee bargaining representatives over terms of Schedule 1 – respondent submitted it had not failed to bargain in good faith and it had met each of the requirements of s.228(1) – whether party observes or fails to observe good faith bargaining requirements set out in s.228(1) is to be determined in light of all of the relevant circumstances – Endeavour Coal considered – found respondent did not fail to meet the good faith bargaining requirement in s.228(1)(d) – respondent participated in 13 bargaining meetings since May 2016 in attempt to make agreement with employees – respondent made its position clear in relation to proposals advanced by applicant and advanced its own proposals in response – found respondent did not fail to genuinely consider proposals advanced by applicant – found respondent did not fail to give genuine consideration to proposal advanced by applicant by refusing to meet to discuss its own final offer – refusal by respondent to engage in a further meeting after it had circulated its best and final offer was not failure to give genuine consideration to proposals of other bargaining representatives – found there was no failure to give reasons for refusal to participate in another meeting – found respondent did not fail to meet the good faith bargaining requirement in s.228(1)(e) – there is no absolute requirement the agreement of all bargaining representatives be obtained before proposed agreement is put to ballot of employees – had been extensive bargaining and limited scope for either party to move, it was therefore not unreasonable for respondent to refuse to participate in further meeting in the circumstances that pertained when it decided to put the proposed agreement to a ballot of employees – found respondent did not breach s.228(1)(f) – requirements in s.228(1) do not compel parties to keep negotiating until agreement is made and orders cannot be directed at that purpose – not satisfied discretion to making bargaining order was triggered or further meetings would serve any purpose relevant to meeting good faith bargaining requirements – held respondent met or was meeting the good faith bargaining requirements – application for bargaining order dismissed. Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v WorkPac P/L
