TERMINATION OF EMPLOYMENT – small business employer – minimum employment period – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed on 25 October 2016 after serving 8 months and 14 days with respondent – respondent objected on grounds that it was small business employer as defined in s.23 of FW Act and therefore, applicant did not complete minimum employment period – at time of dismissal, employed six ongoing, permanent employees and 23 temporary (casual) staff (temporaries) working at host employers – submitted that temporaries should be excluded when determining whether company had less than 15 employees because once temporary assignment was completed with host employer, temporaries did not have continued employment – host employers determined length of assignment – temporaries contract provided for this and therefore, temporaries were not employed on regular and systematic basis with either host employer or respondent – further, temporaries did not have to give notice if they did not want to continue with assignment – applicant submitted that temporaries should be counted because FW Act states that all employees employed by respondent at relevant time were to be counted – only exception is casual employees not employed on regular and systematic basis, and there was no evidence that temporaries were casual – rather, employees in question were fixed term or employed for maximum term – further contended that temporaries were not contractors – Commission held that temporaries were casual employees, not fixed term as contract between temporaries and respondent did not provide details of assignment, did not specify that it was for period of time, and did not contain commencement or completion dates – further, duration of temporaries assignment could be unilaterally changed by host employer – this was akin to pattern of casual employee – next question to be determined was whether 23 casual employees were employed ‘on a regular and systematic basis’ – Ponce v DJT Traffic considered – two documents tendered by respondent showed length of assignments and number of extensions where applicable – work appeared consistent and assignments were undertaken over number of months, indicating regular and systematic employment – Commission listed 11 job titles of casual employees that met requirements for ’employed by the employer on a regular and systematic basis’ – held that total number of employees employed by respondent at 25 October 2016 was therefore 17 employees – respondent not small business employer at time of applicant’s dismissal – applicant met requirements in relation to minimum period of employment – jurisdictional objection dismissed – application referred for conciliation. Dawe v Optimum Recruitment Group (Vic) P/L t/a Optimum Recruitment
March 10, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Glen Cameron Nominees P/L NSW EBA 2015-2019 – dispute concerned interpretation of meal break provisions in Agreement and their application to shift workers – whether employees working afternoon or night shift are entitled to a paid meal break under Agreement – clause 2 of Agreement relied on ‘where a clause of this Agreement is inconsistent with a clause of the Award in part or in whole, the clause in this Agreement shall prevail to the complete exclusion of the Award clause’ – clause 18 of Agreement states an employee is allowed a 30 minute unpaid meal break – clause 24 of Award states all shiftworkers will be entitled to a 20 minute paid meal break – TWU sought determination stating that provisions of clause 24 of Award applied to employees of respondent performing shift work and covered by Agreement – TWU submitted shift worker provisions in Award must be relied upon as Agreement makes no specific reference to shift work – respondent submitted Agreement is silent on providing for a paid meal break for shift work so no such entitlement applies – submitted that an inconsistency was created as meal break provisions contained at clause 18 of Agreement so clause 2 applied – acknowledged that Agreement does not make specific reference to engagement of employees as shift workers – stated they applied shift penalties to shift workers as prescribed under the Award – Golden Cockerel cited – Kucks cited noting a narrow or pedantic approach to interpretation of awards should be avoided – Commission referred to s.109 of Constitution and High Court approaches to inconsistencies – Commission held as a matter of legal interpretation, specific provisions will ordinarily override those which are general in nature – stated that Award made separate provision for shift workers and their various entitlements and Agreement was silent – found it artificial to rely on general meal break provision under Agreement as being inconsistent with specific meal break provisions under Award – found respondent’s interpretation was a narrow or pedantic approach to interpretation – determination as sought by TWU to be issued. Transport Workers’ Union of Australia v Glen Cameron Nominees P/L t/a Glen Cameron Trucking
March 10, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with a dispute pursuant to a dispute settlement procedure at clause 63 in the TasWater General Employees (Southern Region) Enterprise Agreement 2015 – application not resolved by conciliation conference held on 10 January 2017 – respondent argued applicant had not followed all procedures within dispute resolution process and application could not be submitted to Commission – applicant stood down with pay for returning positive alcohol and drug test on 21 September 2016 – applicant returned to work on 28 September 2016 after being re-tested and deemed fit for work – respondent requested response from applicant in accordance with Alcohol and Other Drugs Policy (AOD Procedures) following formal warning – applicant provided no response – disputed formal warning under dispute resolution process (DRP) stating status quo applied until dispute resolved – respondent asked applicant basis of dispute and applicant provided statement of mitigating personal circumstances – respondent issued formal warning to applicant – respondent twice requested via email information regarding nature of applicant’s dispute and outcome sought – applicant failed to provide details – respondent argued details not provided by applicant pursuant to DRP in Agreement – Commission accepted respondent’s submission that no genuine attempt was made by applicant to resolve dispute in accordance with agreed DRP – determined jurisdiction not been enlivened as applicant failed to particularise dispute as required and within timeframe required under Agreement – application dismissed. Johnson v Tasmanian Water and Sewerage Corporation P/L t/a TasWater
March 10, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected to application on the basis that the applicant was an independent contractor and not an employee – respondent asserted it was a small business employer and dismissal was consistent with small business fair dismissal code and alternatively applicant not employee within meaning of s.380 of FW Act – Abdalla considered – Commission satisfied respondent had little day to day oversight of the applicant’s work – no impediment to the applicant working for others subject that work not being in competition with ANZ mortgage products – respondent provided key tools or pieces of equipment required to perform the role – applicant’s capacity to delegate or subcontract his work constrained by requirement for mobile lenders to be licensed – no material before the Commission to suggest that the respondent presented applicant as an emanation of its business – no income tax deducted by the respondent – applicant not entitled to paid holidays or sick leave – applicant’s work did not involve a profession, trade or distinct calling however applicant did draw on his experience in finance sector and required him to be licensed – Commission found majority of indicia supported applicant being independent contractor – found applicant does not come within the scope of s.382 – application dismissed. D’Ambrosio v Jakroas Financial Services P/L t/a ANZ Mobile Lending Belconnen/Gungahlin ACT
March 10, 2017
INDUSTRIAL ACTION – order against industrial action – interim order – ss.418, 420 Fair Work Act 2009 – application for order that industrial action stop – applicant sought order against the respondents and its members employed at the applicant’s terminal located at Eastern Creek, New South Wales – parties not in a position to prepare their cases due to acceleration of hearing – s.418 application made in relation to other proceedings being dealt with by the Commission under s.739 of the FW Act – applicant requested interim order under s.420 – respondents opposed making interim order – submitted interim order would be contrary to public interest – Commission satisfied requirements of s.420(2) established – held it would not be contrary to the public interest to make interim order – interim order issued – interim order to operate until application determined. Toll Transport P/L t/a Toll Express v Transport Workers’ Union of New South Wales and Ors
March 10, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – applicant dismissed for taking personal leave in excess of their entitlement under the National Employment Standards – respondent a small business – whether dismissal consistent with Small Business Fair Dismissal Code – at the date of dismissal applicant had taken numerous days off work beyond NES entitlement – Commission found respondent had not complied with Small Business Fair Dismissal Code – not satisfied valid reason for dismissal – dismissal harsh – ordered compensation of $4,788.00, taxed appropriately. Brewer v On The Spot Dry Cleaners
March 10, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant employed for eight months as a Basketball coach and administrative officer – respondent dismissed applicant on 17 October 2016 stating that the company could not sustain the applicants employment due to significant financial pressure – applicant not afforded opportunity to discuss termination – on same day a part-time employee was offered fulltime position taking over duties of applicant – respondent raised jurisdictional objection on the basis that the dismissal was a genuine redundancy – Commission satisfied that respondent did not comply with obligations to consult and therefore the dismissal was not a case of genuine redundancy – satisfied that dismissal was harsh, unjust and unreasonable – ordered compensation of $6,730.78 taxed according to law. Kerle v Basketballtek P/L t/a Basketballtek
March 10, 2017
ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – applicant sought a protected action ballot order (PABO) for all Swinburne TAFE staff, staff teaching ELICOS or Pathways programs staff responsible for the oversight of courses in TAFE, ELICOS or Pathway programs employed by Swinburne (PAVE teaching staff) for whom the applicant is a bargaining representative – respondent objected to application – applicant and respondent have been bargaining for a replacement agreement – applicant was bargaining for a single enterprise agreement – respondent wanted to be part of a multi-enterprise agreement (MEA) to cover Swinburne and other TAFE institutes – respondent did not agree to bargaining for a single enterprise agreement – respondent submitted a PABO must not be issued in relation to a multi-enterprise agreement – respondent argued that industrial action arising from the application would not be protected action as it would be in relation to the proposed multienterprise agreement – respondent further submitted if a PABO was issued where the industrial action stemming from it was not protected, then the PABO should not be issued – Commission satisfied the requirements of s.443 of the FW Act were met – none of the industrial action would be in relation to the MEA – respondent submitted wording of three ballot questions either vague and unclear or related to action that could not be considered industrial action – applicant consented to rewording question in relation to out of office messages which was accepted by the respondent – Commission allowed the remaining two disputed ‘vague and unclear’ questions as was satisfied the employees would understand the questions [John Holland] – Commission satisfied NTEU met requirements of the FW Act and the PABO was issued. National Tertiary Education Industry Union v Swinburne University of Technology
