TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent a small business – respondent asserted applicants were directors of company and that they had agreed that, given the parlous finances of the business, they would not be paid until and unless the business recovered – respondent asserted applicants had stolen company property and acted fraudulently when they represented to two clients that the respondent was licensed to build their houses – considered whether employees at time of dismissal – held that applicants must be regarded as employees at time of dismissal as the arrangement was not a form of voluntary arrangement – the correspondence sent to the applicants on 19 October 2016 clearly suggested that they were regarded by the respondent until that date to be employees – did not imply that they had any legitimate claim to particular additional payments over that time – held respondent had reasonable grounds to believe applicants had stolen vehicles and equipment, evidence to police to same effect – this evidence establishes the respondent had reasonable basis for concern – requirements of the Code for summary dismissal have been met – dismissal not harsh – applications dismissed. Middleton and Anor v Build West P/L atf The Leverett Trading Trust t/a Build West
March 27, 2017
REGISTERED ORGANISATIONS – amalgamation – Transitionally Recognised Association – Sch.1, Cl.6(2) Fair Work (Registered Organisations) Act 2009 – applicant sought extension of its transitional recognition to fully rationalise its internal affairs with those of its federal counterpart – submitted it had made progress and extension necessary to complete the process – amalgamation of applicant and Food Preservers Union of Western Australia Union of Workers (FPU) approved by the Western Australian Industrial Relations Commission on 14 December 2016 (WAIRC decision) pursuant to the Industrial Relations Act 1979 (WA) (the WA IR Act) – applicant submitted if extension not approved, it’s members and members of FPU would be substantially disadvantaged – National Union of Workers (NUW) asserted application without jurisdiction because applicant is a new organisation as a result of merger with FPU and therefore had never been transitionally registered pursuant to cl.2, schedule 10 of the Workplace Relations Act 1996 (Cth) or transitionally recognised under Schedule 1, Fair Work (Registered Organisations) Act 2009 (FWRO Act) – applicant submitted no reason why a written instrument recording the granting of a transitional recognition under the FWRO Act cannot pass between organisations when an amalgamation occurs in accordance with the WA IR Act – contended application to extend transitional recognition was the continuation of the initial grant of recognition – preservation of pre-existing transitional recognition relies on provisions of s.72 of the WA IR Act in context of constitutional limitations on state legislation – applicant submitted s.78B Judiciary Act 1903 (Cth) limited Commission’s ability to consider those issues – Commission held s.72 of the WA IR Act and the WAIRC decision establish the applicant was a new organisation and pre-14 December 2016 applicant and former FPU ceased to exist – applicant had not achieved transitional recognition in its own right post-14 December 2016 – Smith & Others v Trolloppe Silverwood applied – Commission found it was not prevented from considering standing of state-based legislation in context of constitutional limitations – held transitional recognition was a right to participate in the legislative scheme established by FW Act and cannot be regarded as a property, duty or obligation – issue whether s.72 of the WAIR Act can prescribe pre-14 December 2016 rights are preserved and conferred on new applicant and whether constitutionally valid – if transitional recognition applied to post-14 December 2016 applicant, recognition given without consideration of preconditions for recognition under Sch.1 FWRO Act – inherently inconsistent with provisions of Sch.1 FWRO Act – applicant not a transitionally recognised association at time of application – application dismissed. Australian Workers’ Union, West Australian Branch, Industrial Union of Workers
March 27, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant filed for unfair dismissal remedy – applicant terminated due to inappropriate Facebook posts directed at the chairman of Qube – respondent alleged applicant had been given two written warnings for attending work with medication in his system without reporting this to management – respondent alleged applicant also damaged hatch four of a ship and took unauthorised photos of a ship – applicant’s evidence contradictory and unlikely – Commission found all four reasons for termination valid – applicant notified of all reasons for termination, given an opportunity to respond and had support person present – termination not harsh, unjust or unreasonable – application dismissed. Campbell v Qube Ports P/L t/a Qube Ports & Bulk
March 27, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union, Construction and General Division for an entry permit for Mr Cummins – Mr Cummins convicted for trespass under s.70A of the Criminal Code WA for conduct in 2010 – jumped fence at cricket match and ran onto field for 50 metres until apprehended – fined $1500 – became CFEMU Organiser in 2014 and was issued with entry permit – CFMEU did not disclose trespass conviction in 2014 application (original application) – in preparing current application, Mr Cummins advised CFMEU of conviction and said had also disclosed to CFMEU when original application prepared – current application disclosed trespass offence – Commission issued Decision in 2016 [[2016] FWC 536] (2016 Decision) concerning a right of entry dispute in which orders sought against respondents including CFMEU and Mr Cummins – concerns with Mr Cummins’ conduct included not following reasonable directions, not remaining with escort, not holding meeting in correct location and holding discussions with employees outside union’s eligibility – in 2016 Decision Commission indicated had given serious consideration to issuing orders to address future likelihood of repetition of conduct but decided not to issue orders – Commission in present matter found Mr Cummins received appropriate training about the rights and responsibilities of permit holder, most recently in October 2016 – no convictions of an offence against an industrial law – convicted of offence against State law involving entry onto premises, being 2010 trespass conviction – never ordered to pay a penalty under an industrial law – no revocations, suspensions or conditions placed on an entry permit or cancellations or disqualifications regarding right of entry – trespass conviction and matter subject of 2016 Decision relevant – Commission considered 2016 matter more serious – number of adverse findings made against Mr Cummins in decision which in effect found he had exercised right of entry in a way inconsistent with objections under FW Act – no orders made because Commission considered they would not be appropriate way of resolving dispute – Commission held no evidence that Mr Cummins had misused entry permit on any other occasion, or otherwise acted inconsistently with obligations under industrial law – having regard to factors, Commission satisfied Mr Cummins a fit and proper person to hold entry permit – permit issued. Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
March 27, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed from October 2015 to October 2016 – respondent argued applicant was not dismissed but had abandoned employment – applicant worked as changeover driver for transport company – had accident in Albury and advised by respondent to return to Melbourne depot and then go home – applicant submitted he was contacted by respondent and advised he would be allocated local work – submitted he was not contacted further by respondent and assumed he was stooddown – provided respondent with timesheets and medical certificate on 5 October 2016 – alleged he was informed by respondent on 8 October 2016 he had abandoned his employment – respondent submitted applicant did not advise he was sick nor did he ask for any leave but did not contact him further – respondent accepted they had no discussions with applicant and applicant had submitted timesheets and claimed personal leave prior to making decision to terminate his employment – Commission satisfied applicant did not abandon employment but was terminated by respondent – dismissal a result of serious miscommunication between parties – held dismissal not justified – Commission satisfied dismissal was unjust, unreasonable and without a valid reason – applicant not afforded procedural fairness – remedy – applicant did not seek reinstatement – compensation – Commission satisfied applicant would have remained in employment for at least one year – applicant had obtained other work since dismissal earning a comparable amount -compensation of $10,745.80 less tax plus $574.20 superannuation ordered. Brittain v Nova 5 Group P/L t/a AJM Transport
March 27, 2017
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – applicant commenced employment with respondent on 30 October 2014 – applicant received promotions and a pay rise during period of employment – applicant mentioned to respondent he planned to at some stage start a business of his own and the respondent should not make any long term plans for him with the company – applicant received notice of termination via email on 2 August 2016 due to conflict of interest – applicant stated he was forced to start his own business a lot faster than intended due to his termination – business he started posed no conflict of interest as the target markets are different – respondent builds retaining walls and some hire work whereas the applicant’s business undertakes supply and delivery of materials – following termination of his employment the applicant’s marriage broke down due to financial stress and applicant now living with his father – respondent claimed he had heard applicant was promoting his new business on the company’s time however no evidence was produced to substantiate this fact – considered [Consolidated Paper Industries v Matthews] ‘An employee is not, however, prohibited during his employment from making preparations for setting up a business when the employment ends’ – respondent provided no evidence to support claim the applicant’s ability to perform effectively and safely on the site was compromised by the potential of him starting his own business – no conflict established before the Commission – Commission not satisfied a valid reason existed for the applicant’s termination – applicant had no opportunity to respond to the reason for termination – found applicant unfairly dismissed – remedy – reinstatement inappropriate – compensation – Sprigg applied – applicant’s annual base income was $90,000 – likely applicant would have remained in employment for 3 months following dismissal – applicant had not earned an income since starting his own business – applicant received four weeks wages following termination and this was deducted from compensation amount – applicant awarded eight week’s wages less tax – order issued. Berger v United Crib Block Construction P/L
March 27, 2017
TERMINATION OF EMPLOYMENT – remedy – ss.385, 394 Fair Work Act 2009 – applicant alleged employer engaged in unreasonable conduct which forced her to resign – Commission considered s.385(a) – whether applicant was a person who had been dismissed – s.386(1)(b) states that a person has been dismissed if they were forced to resign because of conduct engaged in by employer – applicant alleged that after company restructure, she found what she believed to be an advertisement for her job on an employment website – employer invited applicant to have discussions, and encouraged her to focus on her job as the company underwent significant change – however applicant sent letter from lawyer that ‘acted to galvanise the termination of employment’ – employer submitted that applicant voluntarily chose to resign, and clarified that the job advertisement was in relation to another role in a related company – Commission found that applicant had options other than resignation including accepting invitation to further discussions with employer – employer not responsible for dismissal – applicant ‘not a person dismissed from employment’ – application dismissed. Johnson v Granite Transformations P/L
March 27, 2017
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – applicant requested to commence bargaining in relation to geographically and operationally distinct group of employees of O’Keefe Heneghan P/L and Auslife P/L and Rocky Neill Construction P/L t/a KNF Construction (KNF Construction) – initial decision ([2017] FWC 780) on 9 February 2017 in relation to confidentiality of names on petition obtained by the Construction, Forestry, Mining and Energy Union (CFMEU) – confidentiality order made – KNF Construction ordered to provide list of employees to Commission – Commission to examine list of employees and petition to determine whether majority support existed – KNF Construction appealed decision and accompanying orders and sought stay – stay application heard by DP Gooley on 22 February 2017 – not granted – hearing proceeded in respect of merits – substantive appeal with respect to confidentiality order yet to be heard – CFMEU submitted group fairly chosen – KNF Construction submitted choice of group artificial and did not provide sound basis to conclude majority of employees supported the application – KNF Construction also submitted majority of work to end on project in April 2017 so granting of application of little utility – Commission compared CFMEU’s petition with list of employees provided by KNF Construction – petition did not disclose majority support for bargaining – satisfied group fairly chosen on geographic basis – group is operationally distinct – limited duration of job weighs against application – cannot be satisfied of matters in s.237(2) of the FW Act as petition did not establish majority who want to bargain – CFMEU submitted Commission should order that the AEC conduct a ballot – order made that AEC conduct ballot as soon as practicable to determine whether majority want to bargain – order issued. Construction, Forestry, Mining and Energy Union
