ANTI-BULLYING – constitutionally-covered business – s.789FC Fair Work Act 2009 – application for order to stop bullying – employer raised jurisdictional objection that it was not a constitutionally-covered business – issue for determination whether employer was a constitutional corporation – Commission satisfied employer was a corporation formed within the limits of the Commonwealth – whether a foreign, trading or financial corporation – applicant submitted employer was a trading corporation – employer submitted it was not a trading corporation because it did not sell goods or services or engage in trading – contended it relied almost entirely on government funding, registered with Charities and Not-for-Profits Commission – a corporation may be a trading corporation even when trading is not its predominant activity but trading must be a substantial not merely peripheral activity [Cowie] – trading activities conducted in the public interest or for a public purpose will not necessarily exclude those activities from being ‘trade’ [Cowie] – no clear authority that determines what proportion of trading activities is ‘substantial’ [Bankstown] – Commission did not accept employer’s reasons for why it was not a trading corporation – authorities establish a charity or not-for-profit organisation may still engage in trading substantial enough to warrant characterisation as a trading corporation – found income employer received from services was not insignificant – found trading activities substantial enough to characterise employer as ‘trading corporation’ and therefore a constitutionally-covered business – jurisdictional objection dismissed – applicant eligible to make application for order to stop bullying. Ms Parfitt
April 7, 2017
CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – Full Bench – Commission at first instance found that applicant and applicant’s representative (appellant) had omitted to produce critical information and determined 50% liability for costs of respondent from 25 August to 8 September 2016 – Decision issued on 25 November 2016 and Order on 27 January 2017 – appeal against Decision and Order lodged on 17 February 2017 – appeal against Order lodged within time – extension of time sought to appeal against Decision – rule 56(2) of Fair Work Rules 2013 governs extensions of time for appeals – principles in Jobs Australia v Eland considered – Full Bench held that appellant was aware of amount of costs claimed – held that explanation for delay not satisfactory – not satisfied that that any matters raised by appellant justify the grant of permission to appeal or raises any public interest considerations – application for extension of time to lodge appeal against Decision dismissed – appeal against Order – Full Bench only considered whether appellant denied procedural fairness by not being provided with revised schedule of costs and not afforded an opportunity to make submissions about appropriateness of order to be made – Full Bench held revised schedule central to Commission’s determination on costs and opportunity to comment on revised schedule not provided to appellant – satisfied Commission erred in failing to ensure appellant was provided with all necessary documentation – satisfied Commission erred in failing to provide appellant an opportunity to be heard regarding revised schedule – permission to appeal granted – appeal against Order upheld – Order quashed – matter referred back to Commission for determination. Appeal by Just Relations – Consultants against decision of Bissett C of 25 November 2016 [[2016] FWC 8491] and order of 27 January 2017 [PR589765] Re: Ecolab P/L
April 7, 2017
ENTERPRISE AGREEMENTS – genuinely agree – s.185, 186 Fair Work Act 2009 – application by Broadspectrum (Australia) P/L t/a Broadspectrum for approval of single enterprise agreement, JBU Enterprise Agreement 2016 (Agreement) – Agreement initially approved by Commission [[2016] FWCA 8209] – United Voice opposed approval of Agreement on basis that group of employees covered by Agreement was not fairly chosen and Agreement had not been genuinely agreed to – subsequently appealed decision to approve Agreement – Full Bench quashed decision to approve agreement and referred application for approval back to Commission as currently constituted for determination [[2016] FWCFB 871] – Full Bench granted permission to appeal and upheld appeal on procedural fairness grounds – Broadspectrum submitted Commission should conclude that all four employees were employees to whom the classifications and Agreement applied – further submitted that United Voice’s contention that employees’ work was not correctional work because CS&CS contract was not in place was not consistent with Carpenter – submitted that although none of the four employees were involved in prisoner transport or welfare at time of engagement it was not enough to conclude that none of them had been engaged to perform correctional work that fell within one of the classification descriptors set out in Corrections and Detention (Private Sector) Award 2010 (Corrections Award) – however, if work performed by the four employees did not come within classification descriptions of Corrections Award then they qualified for coverage under the Clerks – Private Sector Award 2010 (Clerks Award) – United Voice submitted that Commission should not approve Agreement because of concerns as to whether it had been genuinely agreed to per s.186(2)(a) of the FW Act – ALDI considered – Commission found comparison of evidence regarding work undertaken by the four employees and classification descriptors in Corrections Awards indicated that work performed by the four employees at time Agreement was made bore little resemblance to classification descriptors contained in the Awards – Carpenter considered – Commission held Agreement not genuinely agreed to as required by s.186(2)(a) on basis that the employees who made Agreement were not covered by it at the time it was made – held could not be approved – application dismissed. JBU Enterprise Agreement 2016
April 7, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant contended application lodged by email on 13 January 2017 – application not received until 22 January 2017 – 9 days out of time – reasons given included administration system failure of applicant’s representative Australian Dismissal Services (ADS) – Commission contacted their external provider for log of emails sent from ADS – no emails from ADS to FWC dated 13 January 2017 – PDF document properties of original application reviewed – PDF created and modified on 22 January 2017 – ADF unable explain how a document created on 22 January 2017 could be lodged on 13 January 2017 – Commission found application lodged on 22 January 2017 – applicant relied on representative error to explain delay – Nulty considered – Commission held representative error may be a sufficient reason to extend time within which an application for relief is to be lodged [Clark v Ringwood Private Hospital] – found applicant took appropriate steps to ensure application was lodged within time – applicant not at fault in respect of any delay in transmission, or lodgment of application – found exceptional circumstances – extension of time granted. Doran v Beaumaris Sports Association Incorporated t/a Joondalup Sports Association
April 7, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by United Voice under dispute resolution procedure in United Voice and Wilson Security Safeguard Agreement 2014 (Agreement) – dispute arose from Wilson Security’s proposal to change arrangements regarding payment of shift work allowance where employees worked shifts that finished after 6.30 p.m. – affected employees located at offices of Department of Treasury and Finance in Melbourne CBD – employees who worked regular shifts commencing at 7 a.m. and concluding at 7 p.m. no longer to be considered afternoon shift workers because their ordinary time hours finished prior to 6.30 p.m. – hours in each 12 hour shift to be comprised of 10.86 ordinary time hours and 1.14 overtime hours – Wilson Security therefore submitted that affected employees no longer entitled to 20% afternoon shift loading but would instead be paid time and a half for overtime hours – overall impact of change was reduction in earnings – United Voice claimed changes were contrary to intent of Clause 20 of Agreement, which provided that afternoon shift was any shift finishing after 6.30 p.m. and attracted a 20% loading, required to be paid on all ordinary hours worked in that shift – submitted that Wilson Security had not previously distinguished between shifts that finished after 6.30 p.m. and that shift loading had been paid for all shifts that finished at that time – alternatively, it submitted that overtime hours in any roster should be those worked at end of particular roster cycle e.g. hours worked beyond 38 hours in one week – as consequence, afternoon shift loading would apply to any shift finishing after 6.30 p.m. except where that shift finished by way of overtime worked at end of roster cycle – Wilson Security submitted that Commission did not have jurisdiction at this point to deal with alternative position by United Voice because it had not complied with steps in settlement of disputes procedure in Agreement – submitted that only matter in dispute before Commission was about payment of shift allowance and not about allocation of overtime – also submitted that plain meaning of Clause 20 made it clear that employee was only entitled to afternoon shift loading if their ordinary hours, not overtime hours, extended beyond 6.30 p.m. and the fact that shift allowance had been paid in the past was irrelevant – Commission noted that consequences of dispute were significant for those involved as affected employees would suffer significant decrease in weekly earnings if proposed changes were made – Golden Cockerel considered – considered Full Bench’s position in Linfox that shift work could include overtime hours – Commission adopted Full Bench decision in Linfox which concluded that ‘the real issue in dispute between the parties is whether day workers performing overtime work on a regular basis do become shift workers’ – evidence of employee, Mr Senyuva, not disputed and indicated he regularly worked 3 x 12 hour shifts with each shift finishing at 7 p.m. as well as a further 5 hour shift finishing at 12 noon – Commission satisfied that evidence established pattern of hours which constituted regular repeating weekly roster cycle and regularly involved shifts finishing after 6.30 p.m. – satisfied that shifts finishing after 6.30 p.m. in this regular roster cycle could be considered to be afternoon shifts under definition in Clause 20 of Agreement because they formed part of regular roster pattern – this could be contrasted with working hours that sometimes finished after 6.30 p.m. by way of sporadic or occasional overtime being worked – no indication in Mr Senyuva’s evidence that his working hours involved roster that was structured around shifts concluding before 6.30 p.m. – Commission held there was nothing in definition in Clause 20 that indicated that a shift must finish after 6.30 p.m. by way of only ordinary time hours being worked – held that shift arrangements detailed in evidence of Mr Senyuva came within definition of ‘afternoon shift’ in Agreement and therefore attracted 20% allowance for each ordinary hour worked – Commission declined to express any concluded view about overtime allocation and emphasised that decision was based primarily on evidence concerning working patterns of Mr Senyuva, which were understood to be similar working patterns of other affected employees – therefore, decision should not be considered to necessarily have application to other forms of roster arrangements or working patterns that may well be viewed and interpreted differently in terms of entitlements that applied – Commission held that hours worked constituted regular and repeating weekly roster cycle with rostered shifts finishing after 6.30 p.m., and that these shifts could be considered ‘Afternoon shifts’ under definition in Clause 20 of Agreement. United Voice v Wilson Security P/L t/a Wilson Security
April 7, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – applicant worked as a Sales Agent and Auctioneer – dismissed with two weeks’ notice – applicant argued no valid reason for termination and not afforded procedural fairness before being terminated – respondent raised jurisdictional objection that applicant was a contractor and not an employee – Commission found that applicant determined for himself how he worked as a salesperson, used his professional skills for an entity other than respondent while working for respondent, paid for mail drops to promote his own services, used his own car and equipment, and was not presented to the world at large as an emanation of the respondent business – Commission found applicant was an independent contractor – respondent’s jurisdictional objection upheld – application dismissed. Hillyer v Brown and Doleman Unit Trust t/a House 2 Home Real Estate
April 7, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked for respondent for six years as a caravan finisher – applicant on leave on date of dismissal – respondent alleged applicant took unauthorised leave and said applicant ‘grated’ on him – further claimed that applicant took unauthorised breaks and encouraged other staff to slow down production – Commission found applicant did not engage in alleged conduct – held that reasons relied upon by respondent appeared to be capricious – not disputed that applicant did not receive written notice – Commission found termination unfair – ordered compensation of $15,051 plus 9.5% superannuation, taxed appropriately. Galea v Billabong Custom Caravans P/L
April 7, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Key Accounts Manager at time of dismissal – respondent terminated applicant’s employment on the grounds of lost confidence and trust – on 9 November 2016 applicant sent an intemperate and inappropriate email to respondent’s customer services team and another disparaging and highly offensive email about clients to a friend employed by respondent – the clients about whom the comments had been made were inadvertently copied into the email – applicant unsuccessfully tried to recall email – respondent issued letter to applicant to attend disciplinary meeting on 14 November 2016 and until such time would not perform any duties or contact any clients – applicant advised she was unable to attend the meeting however provided a detailed written response for respondent’s consideration – respondent considered applicant’s explanation and found employment relationship was damaged due to gravity of applicant’s conduct – payment made to applicant in lieu of notice – Commission satisfied respondent had valid reason for termination of applicant’s employment – procedural fairness afforded to applicant – dismissal not harsh, unjust or unreasonable – application dismissed. Sologinkin v Cosmetic Suppliers P/L t/a Coty
