The wind down to Easter is underway with only 16 unfair dismissal/contract dispute applications listed for hearing today in the Fair Work Commission. The list includes: Solartint (Galvin), North Ryde Community Pre-School Inc (Hoolahan), Ferngrove Pharmaceuticals Pty Ltd (Ji), Harbour City Ferries Pty Ltd (Barratt), Baxter Healthcare Pty Ltd (Holm), Surfside Properties (Ulladulla) Pty Limited (McLennan), Enviroking Pty Ltd (Standen), Beechworth Montessori Children’s Group Incorporated (Martin), Invocare (Mackender), E & M services (Aust) Pty Ltd & Ibrahim and Another (Mutasim), Senwill Civil Pty Ltd (Golding), Peregrine Corporation (Murray), MSS Security Pty Ltd (Thomas), Vandagnini (De Marzi), Flinders University (Lim), Thiess Pty Ltd (Boers).
April 11, 2017
A parade of 25 will line up before Fair Work commissioners today and plead the efficacy of their unfair dismissal/employment dispute cases. The list is: Qube Ports Pty Ltd (Thomsen), L & H Group Services Pty Ltd (Vanderwert), Redy2Go Pty Ltd (Ahern), Omni Executive Pty Ltd (Colledge), Bidgerdii Community Health Service (VanDenBrink), Enviroking Pty Ltd (Standen), Asciano Services Pty Ltd (Pemberton, Skinner, Ross, Lucas, Hill, Bryant, Preston), Mt Arthur Coal Pty Limited (Crebert), Beechworth Montessori Children’s Group Incorporated (Martin), Suez Environment Pty Ltd (Adams), Sigma Company Limited (Khaleel), Boroondara City Council (Naeem), Nissan Casting Australia Pty Ltd (Rode), Gate Gourmet Services (NSW) Pty Ltd & Fisch and Others (Woodhouse), GM Holden Ltd (Pawlikowski), Allity Pty Ltd (Suhr), Tasmania Ports Corporation Pty Ltd (Finnis), Central Desert Shire Council (Abrahams), Penneshaw IGA Pty Ltd (Costigan).
April 10, 2017
A s.394 (Unfair dismissal) claim by Paul Baird against Airservices Australia has failed. Baird was employed as a leading fire fighter at Melbourne Airport. As part of his duties he is rostered to work in the Fire Control Centre. The core function of fire fighters in the FCC is to monitor aircraft, monitors and alarm systems. In addition there are a significant number of other tasks required. Whilst on duty in the FCC, Mr Baird videoed himself simulating playing Launchpad. Launchpad is an electronic device used to produce electronic music. He drew a simulation of the keys on a folder and used the FCC Room computer to play a piece of music. He then simulated playing the Launchpad in time with the music with one hand and videoed the simulation with the other hand. Whilst he was doing this a fire alarm sounded and he said “oh fuck ships burning down” and then “safe”. He then returned to the simulation.
April 10, 2017
Whilst there are 36 unfair dismissal/employment dispute cases listed for hearing in the Fair Work Commission today, 14 are tied to two companies. The full list is: Australian Pharmacy Council Ltd (Valdmanis), Allbids.com.au Pty Ltd (Hume), AAPC Properties Pty Limited (Janma), Asciano Services Pty Ltd (Pemberton, Skinner, Ross, Lucas, Hill, Bryant, Preston), Robert Guy and Sons (Hooker), Pittwater High School (Groves), Mastermyne Pty Ltd (Baird, Carrion, Leitch, Lyall, Marshall, Martin, Thomas), Grandbridge Limited (Wiburd), Concept Cabinet Makers Pty Ltd (Davies), National Group of Companies Pty Ltd (Ahern), Trident LNG Shipping Services Pty Ltd (Kingshott), Crawford & Company (Australia) Pty Ltd (Whitehead), Queensland Rugby Football League Limited (Spring), Tasmania Ports Corporation Pty Ltd (Finnis), Bulk Frozen Foods (Nugent), Autolync (Brooker), Freshwater Creek Steiner School and Kindergarten (Kecskemeti), GM Holden Ltd (Pawlikowski), Monjon (Australia) Pty Ltd (Watts), Habiku Pty Ltd (Gilchrist, Vowles), Swinburne University of Technology (Calleri), Boral Hollostone Masonry (de-Ruiter), Millennium Services Group Ltd (Hannemann).
April 7, 2017
A parade of twenty-two applicants will plead their unfair dismissal/workplace claims today in the Fair Work Commission. The list includes: Woolworths Limited (Adamis), Mint International Pty Ltd (Ho), Warren Thompson (Harrison), 99 Bikes (Edwards), The Trustee for Modern Marble Design (Fanani), Wandarrah Preschool & Community Centre (Gardiner), Healthcare Australia Pty Ltd (Sommer), Origin Energy Resources Limited (Costelloe), Global Reviews (Asia Pacific) Pty Ltd (Sawyer), Australasian Vehicle Buying Services Pty Ltd (O’Grady), Austin Health (Pritchard), Consolidated Linen Service (Briscoe), Garry Crick’s (Nambour) Pty Ltd as The Trustee for Crick Unit Trust (Parker), Guardplus Security Australia (Burns), Insurance Australia Group Services Pty Ltd (Slarks), Harbour City Ferries Pty Ltd (Barratt), Anglican Youth and Education Diocese of Sydney (Ballantine-Jones), Bay Termite and Pest (Law), Abbeyglaze Pty Ltd (Lewis), NSG Australia (Selvaraju), Global Construction Services Ltd (Adams).
April 7, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under WorkPac P/L Mining (Coal) Industry Enterprise Agreement 2012 – whether Field Team Members (FTMs) employed by respondent as Flat Rate employees under Agreement were entitled to be paid afternoon and night shift rates for all hours worked in circumstances where they worked under what CFMEU described as a ‘rotating roster’ – respondent submitted that even if Commission arbitrated dispute, the decision would not be binding on parties on basis that Dispute Settlement Procedure (DSP) did not specifically state that a determination following arbitration was binding on parties – disagreed with applicant’s interpretation of Agreement and asserted they were paying in accordance with Agreement – submitted that applicant had not provided respondent with any details or examples of a particular FTM so respondent could appropriately address issues, despite requests for information to be provided – stage 5 of DSP indicated that Commission could not arbitrate dispute unless each preceding stage of DSP had been completed or where there was agreement between parties to bypass the stages – respondent contended that non-identification of employees in dispute was a jurisdictional barrier to Commission dealing with dispute that could not be cured by amending application – assertion that employees were concerned that they would be dismissed because they were in dispute about matter did not provide a valid reason for their nonidentification in such circumstances – Commission found that DSP in Agreement was validly engaged, despite CFMEU not identifying employees it was representing – if wrong on that point, Commission found respondent had agreed to bypass Stages 1-3 of DSP to escalate it to Stage 4 – held that there were FTMs in dispute with respondent in relation to application or interpretation of Agreement – held that CFMEU acted at all times within its capacity as a representative of employees under dispute – CFMEU did not have standing under DSP to make application in its own right and such an application could only be made by employees who chose to be represented – Commission could exercise power to amend application but as a matter of discretion did not do so unless individual employees who made application were identified – Commission had power to determine dispute – provided CFMEU 7 days to file and serve on respondent an amended application naming employees in dispute – held that if respondent reconsidered its position on non-participation in framing of question for arbitration, it should submit a proposed question to CFMEU and Commission within 7 days of amended application and hold discussions with CFMEU in attempt to agree on question for arbitration – will convene a further conference accordingly – in absence of advice to the contrary from the respondent, the question for arbitration would be the amended version proposed by CFMEU, subject to Commission amending the question after further discussion with the parties – jurisdictional objections to applications dismissed. Construction, Forestry, Mining and Energy Union v WorkPac P/L
April 7, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – this Statement outlines the next steps in the plain language project – Statement to be read in conjunction with Full Bench decision issued on 20 January 2017 (January Decision) [[2017] FWCFB 344] and Full Bench decision issued on 21 March 2017 (March Decision) [[2017] FWCFB 1612] which dealt with the finalisation of the plain language drafting guidelines (the Guidelines) and certain award-specific clauses in the Pharmacy Award – Commission issued a Statement on 22 September 2015 establishing a pilot to produce a plain language draft of the Pharmacy Award [[2015] FWC 6555] – purpose of the pilot was to create a plain language exposure draft which was simpler and easier for employees and employers to understand than the current Award – selection of the first tranche of modern awards to be redrafted in plain language was based on an assessment of the level of award reliance among employers and employees in the industries covered by the instruments – particular weight given to award reliance among small businesses – an updated plain language modern awards timetable is set out in Attachment A of this Statement – standard clauses and common clauses: standard clauses are provisions that have arisen from previous test cases and generally appear in the same form across most awards – the standard provisions are: award flexibility; consultation; dispute resolution; termination of employment; and redundancy – common clauses include provisions and notes generated during the 4 yearly review of modern awards that have been inserted into most exposure drafts – National Training Wage Schedule: a plain language draft and a Full Bench statement published on 23 February 2017 – the Guidelines: following the January Decision, parties were given a further opportunity to make comments on the revised guidelines until 10 February 2017 – no submissions were received – the first tranche of awards: in the January Decision provisional views were expressed on the Pharmacy Award and determined a number of other contentious issues – March Decision resolved the majority of outstanding issues – a conference will be held before Hatcher VP to deal with: coverage; overtime; and definition of dispensary assistant – the second tranche of awards: a further 10 modern awards have been selected to be re-drafted in plain language – interested persons are invited to comment on the selection of the second tranche of modern awards for re-drafting in plain language – submissions that propose additional modern awards to those selected should be accompanied by reasons and any supporting data or factual material – written comments about the second tranche of modern awards should be sent to [email protected] by 4pm on Friday 7 April 2017. 4 yearly review of modern awards – Plain language re-drafting
April 7, 2017
MODERN AWARDS – 4 yearly review – common issue – s.156 Fair Work Act 2009 – Full Bench – decision deals with a number of outstanding matters in relation to the variation of annual leave terms in the Black Coal Mining Industry Award 2010 (the Black Coal Award) – to be read in conjunction with previous decisions issued on 11 June 2015 (the June 2015 decision) [[2015] FWCFB 3406], 15 September 2015 (the September 2015 decision) [[2015] FWCFB 5771], 23 May 2016 (the May 2016 decision) [[2016] FWCFB 3177], 24 June 2016 (the June 2016 decision) [[2016] FWCFB 3953], 22 September 2016 (the September 2016 decision) [[2016] FWCFB 6836] and 19 December 2016 (the December 2016 decision) [[2016] FWCFB 9074] – outstanding issues of concern related to the finalisation of the Determination varying the Black Coal Award, in particular: the form of shutdown provision to be included as part of the annual leave arrangements; and some minor editorial issues relating to draft determination issued by Commission – a number of unions opposed an amendment to the shutdown provision proposed by the Coal Mining Industry Employer Group (CMIEG) – following a conference of the parties conducted on 25 November 2016, the Full Bench provided a further opportunity for submissions – CMIEG, CFMEU and AMWU made additional submissions consistent with the positions advanced at the November conference – shutdown issue – existing shutdown clause (clause 25.10) provides that employees must be given a period of notice of the shutdown and that an employee who is directly affected may take accrued annual leave or leave in advance – with the removal of the general right to direct the taking of annual leave under the former clause 25.4(c), there appears to be no capacity to direct that annual leave be taken during a shutdown period, other than potentially in relation to excessive leave – unions raised two principal concerns about the CMIEG proposal – first, that a provision permitting the employer to direct the taking of leave is not reasonable, and is contrary to s.93(3) of the FW Act – second, the proposal would, in effect, reintroduce the power for the employer to direct the taking of leave – Full Bench held there was significant potential for uncertainty and inconsistency arising from the present provisions – shutdown clause should be clear and serve its evident purpose – Full Bench accepted there is merit in the unions’ concerns and that the provision as proposed by the CMIEG is capable of being applied in a manner which is inconsistent with s.93(3) -Full Bench provisional view that a revised shutdown provision be inserted into the Black Coal Award – may be appropriate that any direction to take accrued paid annual leave, or unpaid leave, be subject to the requirement that such a direction be reasonable – provisional view is that there are two means by which a shutdown term may be framed such as to ensure compliance with s.93(3) – such a term may either include a range of procedural and substantive safeguards (e.g. as is the case with the excessive leave model term), or it may simply require that any direction to take leave be reasonable – provisional view that the latter approach is preferable – invitation written submissions regarding the provisional views – submissions should be forwarded to [email protected] by 4pm on Tuesday 11 April 2017 – submissions in reply are due by 4pm on Wednesday 26 April 2017 – a short oral hearing to be held at 9.30am on Friday 5 May 2017 in Sydney. 4 yearly review of modern awards-Annual leave
