Twenty five applicants will argue unfair dismissal/contract dispute cases before the Fair Work Commission today. The full list is: Raymond Sampson ATF the Hedland Food Unit Trust (Ellis), HBF Health Limited (Hughes), Boral Cement Limited (Tuddenham), Ausply Big River (Honeysett), Kosciuszko Thredbo Pty Ltd (Bosley), Bupa Aged Care Mosman (Tavassoli), Gym & Tonic Healthclubs Pty Ltd As Trustee for the Snap Fitness Waterloo Unit Trust (Nasnikova), Goodstart Early Learning Limited (Hughes), The Flinders University of SA (Lim), West Motorsport Australia Pty Ltd (Steer), Bis Industries (Larcombe), The Trustee for Sajasan Trust (Ashby, Kapnistis, Muhlberg, Wedding), Bunnings (Boxsell), 99 Bikes (Edwards), Best Telecom Australia Pty Ltd (Toki), BHP Coal Pty Ltd (Tomlinson), Farstad Shipping (Indian Pacific) Pty Ltd (Rust), V/Line Pty Ltd (Woods), Sigma Company Limited (Khaleel), Bunnings Group Limited (Foyster), Mindaribba Local Aboriginal Land Council (Heard), Forsight Australia (Mamo).
March 27, 2017
Twenty-one applicants for relief from unfair dismissal/contract disputes will be heard by the Fair Work Commission today. The full list is: Bupa Aged Care Mosman (Tavassoli), Ronpom Pty Ltd (Pomering), Pittwater High School (Groves), Consolidated Mining Labour (Lawn), Dominos Pizza Enterprise Ltd (Hart), Spotless (Bowman), The Star Pty Limited (Clavijo), Murdoch University (Hayes), Vinci Holdings (WA) Pty Ltd Trustee for the M & J (Credaro), BHP Coal Pty Ltd (Tomlinson), Persal & Co Transmission Pty Ltd (Broom), National Galvanising Industries Pty Ltd (Lewis), DMK Forest Products Pty Ltd (McGee), Wilson Security Pty Ltd (Davis), Wilson Parking Australia (1992) Pty Ltd (Duran), Tenants Union of Victoria Limited (McLeish), Farstad Shipping (Indian Pacific) Pty Ltd (Rust), V/Line Pty Ltd (Woods), Wyllie Tiles Moonah (Dransfield), Pelican Impex Pty Ltd (Lucchini), AO Tong Bao Pty Ltd (Palmer).
March 27, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – applicant filed application seeking remedy for alleged unfair dismissal by respondent on 26 March 2014 – hearing of application delayed by lodgement and resolution of Full Bench appeals from decisions of other Members of the Commission – applications of Messrs Strauss, King, Deeney, Hughes, Park and Seiffert allocated to Commission for arbitration (concurrent applicants) – applicant’s employment governed by Patrick Projects P/L AMC Cargo Handling Agreement 2012-2015 (Agreement), a Memorandum of Understanding Deed (MOU) between respondent and Maritime Union of Australia, and contract of employment – applicant submitted all conditions in MOU were and are still applicable and enforceable employment conditions – applicant notified on 19 February 2014 that position would be made redundant on 20 March 2014 (Proposed Termination), which he submitted would have been harsh, unjust or unreasonable – employment terminated on 18 March 2014 for misconduct (Actual Termination) – applicant submitted actual termination was harsh, unjust or unreasonable – further submitted he had unresolved disputes with respondent at date of termination and Status Quo Clause of Agreement required he remain in employment until those disputes were resolved – Commission not satisfied issues identified by applicant as outstanding at termination were relevant to issues for determination – no issues alleged to still be in dispute were relied upon by respondent for termination – held nothing in Status Quo Clause dictated respondent had to maintain employment of employee involved in unresolved grievance or dispute – Commission otherwise satisfied Status Quo Clause was properly applied by respondent – applicant further alleged Training Clause entitled him to be trained in all high risk licences, including ones that respondent did not require – submitted there would therefore be work for him to perform if reinstated because training is work – submitted his employment was terminated so respondent could avoid training expense – Commission not persuaded Training Clause imposed obligation on respondent to train all employees in all high-risk licences – high risk licences were those required by respondent for operational needs and licence was applicable if respondent needed employee to do work for which licence was required – Commission satisfied no failure by respondent to meet training obligations – respondent became aware of applicant’s misconduct when respondent’s client informed he had approached them on a number of occasions to discover if they would be interested in pursuing opportunities with an alternative provider – alleged applicant requested sensitive information from client and sent text messages containing ‘serious and disparaging’ allegations about respondent – Commission satisfied applicant was trying to establish work for himself with client of respondent – because applicant denigrated respondent to its client, potential loss of any of respondent’s work would have been a serious matter – Commission satisfied respondent was entitled to take serious view of applicant’s conduct and considered approach to client to be serious misconduct – satisfied applicant knew about show cause meeting and it was important, so he could have and should have attended – Commission satisfied applicant’s refusal to attend show cause meeting was a refusal to obey lawful and reasonable direction – satisfied valid reason for summary termination – in relation to Proposed Termination, Commission satisfied applicant was properly consulted and accepted respondent’s evidence regarding non-availability of redeployment – applicant submitted there was some impropriety in offer of placement on casual employment list to employees whose positions had been made redundant – Commission held it was a matter for respondent to decide on what terms placement would be made – satisfied proposed termination of applicant’s employment arose from genuine redundancy which would have been valid reason for termination – satisfied respondent’s reasons for proposed termination on 20 March 2014 were sound, defensible and well-founded – s.387 considerations favoured respondent – dismissal not harsh, unjust or unreasonable – application dismissed. Strauss v Patrick Projects P/L
March 27, 2017
CASE PROCEDURES – stay order – ss.394, 400, 604 Fair Work Act – appeal – employee was dismissed from his employment as an official of the National Union of Workers – New South Wales Branch (NUW) on the basis of admissions he had made in the Royal Commission on Trade Union Governance and Corruption concerning unauthorised use of his union credit card – employee applied to the Commission for an unfair dismissal remedy – matter currently being heard before Dean DP – in the hearing the employee has called as a witness Mr Derrick Belan, his brother and the former Secretary of the NUW – Mr Belan has or will give evidence concerning the authorisation of the credit card expenditure of the employee – Mr Belan has himself been charged with a number of criminal offences arising from his period in office as the NUW Secretary, including charges of financial misappropriation – shortly after his cross-examination by the NUW’s counsel began, and it became apparent that Mr Belan intended to invoke the privilege against self-incrimination in respect of any matter the subject of the criminal charges against him, the NUW applied for an indefinite adjournment of the proceedings pending the finalisation of the criminal charges against Mr Belan – Dean DP refused the adjournment application – appellant has now lodged an appeal against that decision – as part of appeal it has also sought on an urgent basis a stay of the decision under appeal having regard to the anticipated resumption of the proceedings before Dean DP – principles applying to stay applications in this jurisdiction are well established – Edghill v Kellow-Falkiner Motors P/L considered – some doubt as to the efficacy of the application – under s.606 of the FW Act, the Commission is empowered to grant a stay of the decision under appeal, not a stay of the proceedings that are the subject of the decision – having regard to the materials and arguments, Commission not satisfied the appeal is arguable with sufficient prospects of success – decision made by Dean DP was an interlocutory procedural decision of a discretionary nature – well established appeals from such decisions will not ordinarily be encouraged – in considering the adjournment application, Dean DP was required to undertake a balancing of justice between the parties – Websyte Corporation P/L v Alexander (No.2) considered – Commission held Dean DP’s refusal of the adjournment application was a patently reasonable exercise of the discretion – appellant had not pointed to any particular error in the decision – appeal only appeared to exhibit general dissatisfaction at the outcome arrived at – appellant’s application for a stay dismissed. Appeal by National Union of Workers – New South Wales Branch against interlocutory decision in transcript of Dean DP of 8 March 2017 Re: Belan
March 27, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 397, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant’s application for extension of time for lodgement of unfair dismissal application dismissed at first instance – appellant sought permission to appeal Commission’s decision and order – whether in public interest, where test is ‘a discretionary one involving a broad value judgment’ [Coal & Allied] – whether decision involved ‘significant error of fact’, the test being ‘a stringent one’ [Coal & Allied] – rarely appropriate to grant permission to appeal unless arguable case of appealable error is demonstrated, since an appeal cannot succeed in absence of appealable error [Wan] – fact that Member at first instance made an error is not necessarily sufficient basis for granting permission to appeal [GlaxoSmithKline] – appellant’s unfair dismissal application was lodged 307 days outside statutory time limit – Member at first instance found no exceptional circumstances warranting extension of time – four grounds of appeal – Full Bench considered issue of whether appellant had resigned from his employment or was forced to resign a critical issue which was a contested fact – apparent from terms of s.397 that where a matter arising under Part 3-2 involves facts in dispute, the Commission must either hold a conference or conduct a hearing in relation to the facts in dispute [Shields] – whether an application was made within the prescribed time is a ‘matter arising’ under Part 3-2 [Shields] – Member at first instance did not hold a conference or hearing in relation to the matter and the contested facts were not considered in such a process – failure to comply with s.397 in circumstances where the contested fact is a critical issue enlivens the public interest [Shields] – it is in the public interest that applications to the Commission are dealt with in accordance with the Act – permission to appeal granted – substantive appeal to be heard. Appeal by Costelloe against decision and order of Drake SDP of 3 January 2017 [[2017] FWC 214] Re: Origin Energy Resources Limited t/a Origin Energy
March 27, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision and order refusing extension of time to appellant to file unfair dismissal application – application filed 11 weeks late – at first instance Commission found while there was an acceptable explanation for part of the delay, there was no satisfactory explanation for the further delay and no establishment of exceptional circumstances – appellant submitted the decision was counterintuitive and unjust as he was not in a mental or physical state to deal with the issue and his case was not heard – Full Bench not satisfied that there was an explanation for the totality of the delay in making the application [Cheval Properties P/L v Smithers] – no error in first instance decision – no public interest considerations enlivened – permission to appeal refused. Appeal by Pratt against the decision of Bartel DP of 17 January 2017 [[2017] FWC 316] Re: Pratt v Concrete Waterproofing Manufacturer P/L t/a Xypex Australia
March 27, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.400, 604 Fair Work Act 2009 – Full Bench – permission to appeal – application to appeal decision of Commission dealing with dispute arising under Bluescope Steel Port Kembla Steelworks Agreement 2015 – dispute whether Refractory Installers and Refractory Installation Bricklayers employed by respondent were entitled to Hot Work Allowance and Height Allowance – appellant contended Commission at first instance had little regard to plain and ordinary meaning of clauses relating to Hot Work Allowance (9.1.2) and Height Allowance (9.3.1) – respondent submitted no appellable error – the task of assessing if public interest test is met is a discretionary one involving a broad value judgment [Coal & Allied] – it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated [Wan] – Full Bench found Commission had regard to principles elicited in Golden Cockerel – appellant submitted Commission erred in finding Refractory Installers and Refractory Installation Bricklayers employed by respondent were not entitled to Hot Work Allowance or Height Allowance – Full Bench found objects of relevant allowances discussed at paragraphs [14]-[15] of first instance decision – context and purpose of Agreement considered in line with orthodox approach – appellant also submitted that Commission erred in finding that Hot Work Allowance and Height Allowance were ‘rolled up’ in 38 hour weekly rates – Full Bench found Commission had regard to 1995 BHP Refractory Employees Award Decision per Hungerford J in concluding allowances were ‘rolled up’ – found Commission entitled to have regard to surrounding circumstances, including relevant history, in making first instance decision [Golden Cockerel] – Full Bench not satisfied arguable case of error in relation to any ground of appeal nor public interest in granting permission to appeal – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union – Construction and General Division against decision of Riordan C of 7 November 2016 [[2016] FWC 7842] Re: Bluescope Steel (AIS) P/L t/a Bluescope Steel
March 27, 2017
TERMINATION OF EMPLOYMENT – remedy – s.394 Fair Work Act 2009 – decision dealing with remedy in relation to a previously decided unfair dismissal application – applicant sought reinstatement with payment of compensation for lost wages and continuity of his employment with the respondent – submissions made to deal with question whether reinstatement appropriate – applicant made submissions on negative treatment by employees and the way investigations into this treatment were conducted – respondent made submissions that it does not have trust and confidence in applicant – Commission concluded that nature of relationship between parties rendered reinstatement inappropriate – compensation of $64,655 ordered. King v Patrick Projects P/L
