RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch (CFMEU) for issue of right of entry permit to its official, Mr Mark Gava – Mr Gava held right of entry permit from 2001 – last entry permit expired on 28 November 2016 – permit returned to Commission two days beyond time limit allocated for it to be returned – cases involving Mr Gava considered, including those involving penalties imposed upon Mr Gava, CFMEU and other officials in the Liability and Penalty Decisions in 2014 – appeal against decisions subsequently lodged – Australian Building and Construction Commissioner (ABCC) contended that application be stayed pending determination of appeal, be considered with appeal or that entry permit should not be granted on basis that Mr Gava is not fit and proper person – Commission held that imposition of delay of indefinite duration appeared to have very real potential of visiting unfairness on applicant so application should be determined on evidence presented – Mr Gava gave evidence explaining manner and frequency of use of entry permit and significance of permit for performance of his duties – admitted contraventions alleged against him and accepted findings of contraventions made against him in Liability and Penalty Decisions – however, did not have specific recollection of events and also disputed certain facts about the 30 October 2013 incident – confirmed penalties imposed upon him had been paid – confirmed that he undertook further right of entry training with ACTU – submitted statutory declaration on 16 December 2016 advising that entry permit expired on 28 November 2016 and confirmed he had not attempted to use permit after it expired – subsequent statutory declaration signed on 12 January 2017 noted that Mr Gava had in fact issued entry notice on 1 December 2016 and exercised entry rights on 2 December 2016, but that he left the site when advised his entry permit had expired and explained his actions reflected an oversight – provided number of references in support of position that he was fit and proper person to hold right of entry permit – applicant submitted that Mr Gava had completed requisite training, had not been convicted of an offence against industrial law or offence against law of Commonwealth, State or Territory involving entry onto premises, fraud or dishonesty or intentional use of violence or damage – acknowledged penalties imposed upon Mr Gava but unique nature of his behaviour was recognised in Penalty Decision and in quantum of penalty imposed – provided evidence of his contrition which should be regarded as aberration – ABCC contended that findings made in Liability Decision against Mr Gava were to the extent that conduct was deliberate and pre-meditated and was part of concerted campaign in defiance of requirements in FW Act – further submitted that Mr Gava’s actions indicated he was susceptible to comply with directions from employer to engage in unlawful conduct – Commission held that magnitude of October 2013 behaviours, uncertainties about Mr Gava’s poor recollections of behaviours he has undertaken not to repeat, reliance on his entry permit three days after he handed it in, erroneous statutory declarations and uncertainty associated with extent of current Court proceedings did not support finding that he should be regarded as fit and proper person to hold entry permit – further, not satisfied that Mr Gava expressed genuine contrition – took into account extent to which applicant currently only has three permit holders in South Australia but did not regard this consideration as factor which overrode concerns – Commission not satisfied Mr Gava was fit and proper person to hold entry permit – application refused. Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch
March 17, 2017
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision at first instance finding employee protected from unfair dismissal and remedy was appropriate – appellant historically difficult to contact – failed to attend conciliation – Commission made enquiries as to appellant’s contact details in Australia on numerous occasions – Commission repeatedly informed there was no contact person in Australia as company located in China – appellant lodged notice of appeal on 13 February 2017 – appellant filed materials on 17 February 2017 – materials did not contain written submissions – appellant failed to lodge appeal books within seven calendar days of lodging notice of appeal in accordance with Rule 56(3) of Fair Work Commission Rules 2013 – numerous unsuccessful attempts made to contact appellant on day of hearing – hearing proceeded without them – employee submitted permission appeal should be refused on account of appellant’s non-attendance and lack of material filed supporting appeal – Full Bench made ex tempore decision – permission to appeal refused. Appeal by Inovit P/L t/a Inovit against decision of Clancy DP of 20 January 2017 [[2017 FWC 657] Re: Young
March 16, 2017
Twenty seven unfair dismissal/employment dispute applicants will plead their cases before the Fair Work Commission today. The full list is: Cromwell Cleaning Serviced Pty Ltd (Byrne), Conair Australia Pty Ltd (Barkhazen), MTP Marble Granite Sandstone (Chand), Saltwater Restaurant Bermgaui (Riley, Robbie), Truckin’ Good Food/Cafe 3F (Harper), Salvation Army (Nakasone), Menzies International (Australia) Pty Ltd (O’Brien), Challenger Limited (Bartier), Suez Walter and Treatment Solutions Pty Ltd (Bornstein), BlueScope Steel (AIS) Pty Ltd (Cassidy), AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD (Troltsch), Chubb Fire and Security Pty Ltd (Arnold), Hunts Hotels – Function Centre Pty Ltd (Garling), AICA Engineering Pty Ltd (Kaushal), Motorshades Pty Ltd (Melling), Vinci Holdings (WA) Pty Ltd Trustee for the M & J (Credaro), Endless Solar Operations (Cole), Kava Business Solutions Pty Ltd (Malo), Linfox Armaguard Pty Ltd (Darwin, Walter), Queensland Newspapers Pty Ltd (Monteith), Bendigo and Adelaide Bank Limited (Batchelor), Ceduna Tyres and Batteries Pty Ltd (Debnam-Dodd), Bunnings (Boxsell), Toll Transport Pty Ltd (Grillo), Penneshaw IGA Pty Ltd (Costigan).
March 15, 2017
There is a sprinkling of grocers making up the respondents quantum in today’s list of unfair dismissal/labour dispute applications to be heard in the Fair Work Commission. The full list is: Byron Bay Superfoods Pty Ltd (Garang), CNW Maitland (Roskell), Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney (Toohey), Aurrum (Pearce), National Union of Workers-New South Wales Branch (Belan), Cold Jet Australia (Piedrahita), Qube Logistics (SB) Pty Ltd (Kemp), Empowered Living Support Services Ltd (Davey), Town of Victoria Park (Wilson), MCTI Pty Ltd (Pitts), City of Swan (Lowenhoff), Bawinanga Aboriginal Corporation (Kelly), Qantas Airways Limited (McRae), XL Express Pty Ltd (Biffin), Mater Limited (Jones), Wilmar Australia Pty Ltd (Munro), Rio Tinto Aluminium Limited (Gill), DP World Brisbane Pty Limited (Johnston), Coles Supermarkets Australia Pty Ltd (Higgins), East Arnhem Regional Council (Lumsden), Crackshot Boring Pty Ltd (Caputo), Endless Solar Operations (Cole), Carpet Call Pty Ltd (Gasparotto), NRS Security Solution Pty Ltd (Jan), Rokon Pty Ltd (Whittingslow), Metropolitan Fire and Emergency Services Board (Stojanovska), Veruka Enterprises Pty Ltd (Cooper-Tims), Penneshaw IGA Pty Ltd (Costigan), CCC Financial Solutions Pty Ltd (Hall), Futuris Automotive Interiors Pty Ltd (Illingworth).
March 14, 2017
The list for today governing unfair dismissal and labour disputes includes: Farmers Choice Butchery (Adimari), Sky Falcon Enterprises P/L (Freeman), The Star Pty Limited (Clavijo), University of Technology, Sydney (Opperman), ISS Facility Services Pty Ltd (United Voice), Hawkesbury Race Club Limited (Leggett), Sig Group International (Gonzalez), Redcliffe Golf Club Inc. (South), NSW TRAINS (Riley), Brisbane Window & Solar Panel Cleaning (Burns), Regents on the Lake / Me-n-u Catering (Donovan), Downer EDI (Dudley), Corporate Protection Australia Group (Foster & Nicholson-Bliesner), Suez Recycling and Recovery Pty Ltd (Biagini), Permanent Realty Pty Limited (Houpt), Hay Point Services Pty Ltd (Cocup, Hayes, Miller).
March 10, 2017
Twenty three unfair dismissal claims will be heard by the Fair Work Commission today. The full list is: McCARROOLLS OF MOSS VALE PTY LTD (Bennett), SL Evans Pty Ltd/Jamaica Blue Erina Fair (Williams), Steve Jarvin Motors Pty Ltd (Al-Khalil), Mediq Wallan Medical clinic (Momin), Coles Pty Ltd (Solitua), Bill Buckle Autos Pty Ltd (Raymond), BGC Contracting Pty Ltd (Ninyette), Jaycorp Pty Ltd (Kneen-McDaid), Serco Australia Pty Ltd (McQueen), Textile Traders (Wallam), Best Telecom Australia Pty Ltd (Toki), National Australia Bank Ltd (Hogan), Transdev Brisbane Ferries Pty Ltd (Rayward), Pro-Built Engine Reconditioning Pty Ltd (Zielke), Jones Lang Lasalle (Vic) P/L (Walker), Melbourne City Council (Grey), Richard Spanicek (Javed), DNA Empire (Mumin), Australian Association of South Australia Limited (Manthoni), AGL Energy Limited (Jalloul), Textile Traders (Wallam).
March 10, 2017
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application seeking orders be issued against respondent pursuant to s.418 of the FW Act – ongoing disputes between respondent and applicant before Commission regarding workload allocation matters for applicant’s academic staff – frameworks for allocation of work to academic staff developed through process set out in clause 45 of Victoria University Enterprise Agreement 2013 (Agreement) – most recent application made by respondent to Commission in January primarily related to questions of appropriate allocation of time for the work of course and unit coordinators in various colleges of University – applicant raised jurisdictional objection that respondent had not met jurisdictional requirements of dispute settlement procedure – Commission recommended meetings between parties before making finding – respondent subsequently sent an email to academic union members which included ‘advice to staff’ – applicant submitted some aspects of email constituted directions to respondent’s members to work in particular manner and therefore constituted organising of industrial action – Commission satisfied that no industrial action occurred – necessary to determine if industrial action threatened, impending or probable – to extent that certain paragraphs of email purported to be a direction to union members to not do work that is properly within their skills and experience and is work generally required of them, was industrial action in that it was a restriction on the performance of work or a refusal to perform work – some words in email indicated intent for there to be a restriction on performance of work – considered context within which advice given – found provisions of clause 59.4 of Agreement continued to apply as internal meetings directed at resolving the dispute have continued and jurisdictional objection maintained – AGL Loy Yang applied – Commission satisfied action directed by respondent email did no more than seek to maintain the status quo as specified in clause 59.4 of Agreement – as such, action could not be industrial action – to grant the orders sought in circumstances where specific provisions of dispute settlement procedure apply would be outcome contrary to operation of Agreement – application dismissed. Interim order issued on 24 February 2017 will be set aside. Victoria University v National Tertiary Education Industry Union
March 10, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Senior Instrument Electrical Technician – applicant’s role was highly autonomous and often worked alone – one of three allegations put to applicant had been substantiated and warranted for applicant’s termination for serious misconduct – alleged applicant played golf during work hours – approximately 140 working days between 1 July 2014 and 30 June 2016 – all employees including applicant used personal digital assistant (PDA) to record data, information, dates, times and GPS location for assigned work tasks – respondent investigated a number of anomalies and identified inconsistencies with GPS coordinates recorded by applicant’s PDA, mobile phone records and assigned work tasks – respondent further submitted applicant failed to swipe company identification card required to open security gate to enter a particular worksite to complete tasks which supports claim applicant was not present at the location – respondent provided letter to applicant outlining allegations on 6 September 2016 – subsequent meetings between respondent and applicant were held and applicant’s employment was terminated on 20 September 2016 – Commission noted applicant’s long period of employment but also the number of prior warnings applicant received – found applicant not truthful during investigation into allegations and attempted to cover up any wrongdoing – satisfied applicant’s actions amounted to serious misconducted – found dismissal was not harsh, unjust or unreasonable – order dismissing application issued. Colella v Aroona P&T P/L t/a Aroona Alliance
