ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by Police Federation of Australia (Victoria Police Branch) (PFAV) to deal with dispute in accordance with dispute settlement procedure in Victoria Police Force Enterprise Agreement 2011 (2011 Agreement) – dispute related to terms and conditions and special arrangements applicable to employees of Victoria Police Force deployed to work at the G20 Leaders Summit held in Brisbane in 2014 – prior to G20, PFAV reached agreement with Victoria Police that, on day employees were to return to Victoria after G20, they would be paid in accordance with 2011 Agreement for time spent travelling as if on duty – this included payment from time of leaving hotel and boarding transport to travel to Brisbane airport, until ceasing duty in Melbourne with minimum payment of eight hours – where travel was not until late in the day, efforts were made with hotels to arrange late checkout for employees – this application related to employees staying in accommodation where late checkout was not available and where they were not required to be ready for transport to the airport until 4.00pm – PFAV submitted that these employees were at work from the time they were required to checkout of their accommodation at 10.00am, even though they were not collected for transport to the airport until 4.00pm, and hence should be paid from this time – if they were entitled to be paid from 10.00am then some of the time spent travelling would be in excess of eight hours and therefore attracted appropriate overtime rates – Victoria Police submitted that employees were not at work from the time they checked out of accommodation and were not entitled to any payment from 10.00am – treatment of six hour period between 10.00am and 4.00pm in contention – PFAV submitted that time spent ‘in transit’ to and from G20 or ‘waiting’ to commence travel should be recognised as time worked – transit time commenced at checkout time of 10.00am – Victoria Police determined that working hours on departure day from G20 deployment would commence from time employees required to board bus for transport to airport – submitted that ‘work’ did not include time where no specific work was performed – further, ‘work’ included travelling where employee was deployed to special event interstate, but at the time in question, employees were only waiting to commence travelling – Golden Cockerel considered by Commission – Clause 37.4 of 2011 Agreement defined ‘work’ and if accepted, Commission not convinced that activity being undertaken by employees between 10.00am and 4.00pm fit said definition – ‘work’ did not include ‘part of any period spent away from employee’s station during which no specific work is performed’ – between 10.00am and 4.00pm employees concerned were not performing any specific work and were not directed to work, nor were they required to hold themselves in any particular state of readiness to return to work at short notice – Commission therefore satisfied employees were not at work – held that whilst travel was considered to be ‘work’, Ponczek did not stand for proposition that all time spent waiting to commence travel was time spent travelling – not satisfied that employees were engaged in travel during period in question – Commission held employees did not have entitlement to remuneration for period between 10.00am and 4.00pm – application by PFAV dismissed. The Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police
April 20, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as a merchandiser and company representative from 13 July 2015 – dismissed on 24 August 2016 via telephone call where respondent told applicant to return all company property to the office as he ‘was fired’ – applicant not provided with reason for dismissal – only given reason when Employer Response Form was filed by respondent to the Commission – form stated applicant dismissed for using social media during working hours and had been previously given 5 written warnings about conduct – Facebook post made by applicant alluded to an employee’s conduct towards a boss however applicant submitted it referred to his mother’s boss not the respondent – applicant stated not given workplace policies including the policy on use of social media – applicant submitted he did not receive written warnings referred to in respondent’s submission – Commission considered termination could be one or combination of harsh, unjust or unreasonable [Byrne v Australian Airlines] – Commission reasoned it difficult to conclude the respondent had a valid reason to dismiss the applicant or if there was a valid reason it had not been properly established by the respondent as there was a lack of any investigation before the decision to terminate his employment was made – Commission not satisfied there was evidence to establish the applicant had been aware of the policy banning the use of social media at work – not satisfied there was a valid reason for dismissal – satisfied dismissal was harsh and unreasonable – applicant unfairly dismissed – s.390 FW Act considered for remedy – reinstatement inappropriate compensation awarded – calculated per Sprigg – applicant able to find work within one week however now earns $995.00 gross less per month than when employed by respondent – compensation calculated as per loss of earnings for 6 months being $5,970.00 with an additional week’s pay when unemployed between roles, Commission subtracted 10% in respect to contingencies – total amount awarded $6,238.00 less taxation. Somogyi v LED Technologies P/L
April 20, 2017
TERMINATION OF EMPLOYMENT – small business employer – minimum employment period – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – jurisdictional objection – respondent submitted they were a small business employer and applicant had not served 12 month minimum employment period – parties agreed to at least 13 employees at relevant time, however, 4 other employees were in dispute – respondent submitted two of the disputed employees were directors, one was on labour hire and one was an employee of another company doing work for respondent – Commission held that the two directors were not employees as they were not provided with any form of remuneration – held that third person was not an employee as they were in a labour hire arrangement and no consideration passed between themselves and respondent – held that fourth person was not an employee based on lack of evidence of employment relationship and consideration – Commission satisfied that respondent employed fewer than 15 employees (13 employees) – found employer a small business owner – jurisdictional objection made out – application dismissed. Bramble v Ivicon Australia P/L t/a Ivicon
April 20, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – appellant sought permission to appeal – decision at first instance found process of selecting candidates for position complied with clause of Victorian Government Schools Agreement 2013 – whether in public interest to grant permission – whether decision at first instance involved significant error of fact – Full Bench not satisfied in public interest to grant permission to appeal – decision not attended by sufficient doubt that would warrant reconsideration or a substantial injustice would arise if leave not granted – permission to appeal refused. Appeal by Heading against decision of Wilson C of 13 December 2016 [[2016] FWC 8949] Re: The Secretary of the Department of Education and Training on behalf of the State of Victoria
April 20, 2017
MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – Decision issued by Full Bench on 23 February 2017 in relation to penalty rate provisions in number of awards in hospitality and retail sectors [[2017] FWCFB 1001] – Decision outlined options for transitional arrangements – interested persons directed to make submissions in relation to transitional arrangements by 24 March 2017 – 29 submissions received (contained in Attachment A) – parties to address questions on notice contained in Attachment B in conjunction with submissions in reply by Friday 7 April 2017 – parties wishing to make oral submissions to inform Full Bench by emailing [email protected] by 4pm Tuesday 2 May 2017 – hearing listed for Tuesday 9 May 2017 in Melbourne. 4 yearly review of modern awards – Penalty Rates
April 20, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.604 Fair Work Act 2009 – appeal – Full Bench – appellant and respondent each lodged notices of appeal with respect to decision at first instance – at appeal hearing, parties agreed to adjourn to private conference – following conference, parties advised Full Bench they had reached agreement by consent to quash Decision – order to be issued quashing Decision. Appeal by The Australian Workers’ Union against decision of Riordan C of 14 February 2017 [[2017] FWC 336] Re: BlueScope Steel (AIS) P/L
April 20, 2017
It’s still Fair Work Commission post-Easter ‘lite’. The nineteen applications to be heard today includes: Baxter Healthcare Pty Ltd (Portelli), Australian Diabetes Educators Association Limited (Oddy), San Carlo Homes for the Aged (Alleva and Others), The Hair Room Lancefield (Brown), ICC Sydney Pty Ltd (Goh), Charles Sturt University (Wedgwood), The Scots College (Witheridge), Thompson Healthcare Pty Ltd (Adamopoulos), Virgin Australia Airlines Pty Ltd (I.), Liquid Operations Pty Ltd (Butler), Yeast2West Pty Ltd (Willersdorf), Rio Tinto Aluminium Limited (Gill), J.L Johnson & J.R McIntyre (Harris), Sutton Security (Willis), Jetstar Airways Limited (Albouni), Serco Australia Pty Ltd (McQueen), Bicycle South Australia Inc (Bridge), Centacare Catholic Family Services (Powell), Lutheran Community Care (Harpur).
April 19, 2017
Eighteen claimants for justice, vindication and reward will pursue unfair dismissal claims/employment clarification in the Fair Work Commission today. The full list is: Weir Minerals Australia (Compton), Cessnock Ex-Services Club Ltd (Blakemore), Bawinanga Aboriginal Corp (Kelly), Grill’d Healthy Burgers (Shellum), BGC Contracting Pty Ltd (Ninyette), Star Interior Solutions Pty Ltd (Brain), Linfox Armaguard Pty Ltd (Power), SFDC Australia Pty Ltd (Hepguler), Kirinari Community Services (Milojevic), Moretto Group (Savina), Enjoy Going Pty Ltd (Zhang), City Kalgoorlie-Boulder (Long), Oasis Patios (Winch), Billabong Gold (Russell), Yaringa Boat Harbour (Miller), Australian Workers’ Union, The – Victoria Branch (Narahari), Pro-Built Engine Reconditioning Pty Ltd (Zielke), XL Express Pty Ltd (Biffin).
