TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant signed letter of resignation during meeting with respondent on 11 August 2016 – applicant submitted that conduct of respondent was designed to bring her employment to end – prior to meeting applicant claimed that she had been ostracised in the workplace; that she had been excluded from meetings and her usual work; that her duties had been reduced as a result of respondent appointing a Construction Manager; and that her integrity had been questioned by the respondent in relation to the taking of sick leave – applicant claimed that respondent had prepared resignation letter for the meeting of 11 August 2016, signalling the respondent’s intention of bringing the employment relationship to an end – respondent disputed this and submitted that meeting was called to discuss serious concerns about applicant’s performance – respondent submitted there was no prepared resignation letter at the meeting ready for the applicant – resignation letter was a HR template only produced when the applicant asked for it – respondent submitted that applicant was not forced to resign but chose to – issue of whether applicant was forced to resign because of course of conduct of respondent – O’Meara considered – Commission found that some of applicant’s complaints were legitimate and contributed to her decision to resign, however, none of the matters relied upon by the applicant could be found to have forced her resignation – Commission satisfied that actions of respondent were not intended to bring the employment relationship to an end – found that applicant went into meeting having foreshadowed to her partner about her intention to resign – satisfied that if applicant had not asked twice for a resignation letter, the meeting of 11 August would have continued – Commission not satisfied that applicant was forced to resign because of course of conduct by respondent – application dismissed. Coughlan v McLeod Rail
March 10, 2017
TERMINATION OF EMPLOYMENT – consultation – s.533 Fair Work Act 2009 – application for an order made by the AMWU and the AWU (Unions) alleging that respondent failed to provide them with an opportunity to consult about measures to avert or minimise proposed dismissals and measures to mitigate the adverse effects of proposed dismissals – respondent had been advised by VIVA that it required respondent to reduce its workforce of approximately 72 permanent employees at VIVA refinery in Geelong by approximately 50% – respondent advised applicants and employees of pending redundancies, sought voluntary redundancies and held meeting with applicants to discuss redundancies – at meeting applicants’ requested respondent let redundant workers know the outcome as soon as possible – Commission noted opportunity to consult must be real – consultation involves opportunity for one party to put forward proposals and for those proposals to be given genuine consideration – Commission was satisfied applicants were provided with an opportunity to put forward proposals and respondent gave genuine consideration to those proposals – as soon as respondent knew redundancies were possible it notified applicants, conducting discussions with local delegates and then organisers – organisers had opportunity to put proposals to respondent which were considered by respondent and in some cases acted upon – satisfied respondent seriously considered proposals put forward – while it was clear the central proposal of applicants that employees be given priority in future hirings was not accepted, Commission did not consider respondent’s failure to accept meant there was no genuine consideration – while Commission accepted applicants not able to waive respondent’s obligations under s.531(3) of FW Act, it considered applicants contributed to short time frame by requesting that process be truncated – application dismissed. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Anor v UGL Operations and Maintenance P/L t/a UGL
March 10, 2017
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – Lawrence DP issued three orders – KNF Construction (KNF) has sought a stay of two of the orders – the order which required KNF to produce list of its employees with classification/work area covered by application with information to be treated as confidential; and the order which listed the matter for hearing on 23 February 2017 – KNF did not comply with order to produce list of employees and sought stay of the order – submitted that to do so prior to hearing of stay application would defeat the capacity of Full Bench to give relief – Commission found there needs to be an arguable case with some reasonable prospects of success both on question of permission to appeal and appeal itself and balance of convenience must weigh in favour of order subject to the appeal being stayed – held balance of convenience does not warrant the granting of a stay as effect of granting the stay would be to stay proceedings before Lawrence DP – Commission did not accept KNF submission that balance of convenience favours stay because Lawrence DP has prejudged central issue namely whether petition is appropriate way to determine if majority want to bargain – majority support determination is important step in bargaining process – if appeal is unsuccessful matter will need to be determined by which time there may be argument that petition CFMEU seeks to rely upon will not be most current evidence of whether employees want to bargain and application may be rejected – is possibility if matter not heard and determined the employees will be denied opportunity to bargain – Commission did not accept KNF’s that denial of procedural fairness has crystallised – cross examination of CFMEU witnesses provided basis for KNF to apply to Lawrence DP to vary order – KNF may also be able to put forward evidence from employees to cause Lawrence DP to vary or revoke order – it cannot be said that refusal to grant stay of orders denies appellant right to rely on grounds in this appeal or in any appeal against a majority support determination if it is made – party the subject of an order is required to comply with order until a stay order is issued – applying for stay does not entitle party to ignore its obligations – accepted that there was delay in appeal being allocated for the determination of the stay it did not entitle KNF to ignore obligation to comply – held the balance of convenience favours the refusal of stay application – not necessary to consider whether KNF’s appeal is arguable with some reasonable prospects of success – did not consider KNF’s failure to comply with order to produce documents – application for stay dismissed. Appeal by O’Keeffe Heneghan P/L & Rocky Neill Construction P/L & Auslife P/L t/a KNF Construction against order of Lawrence DP of 9 February 2017 [[2017] FWC 780] Re: Construction, Forestry, Mining and Energy Union
March 10, 2017
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – application for stay order – Commission issued decision and order that appellant pay part of respondents legal costs in unfair dismissal application – before stay order is granted Commission required to be satisfied that arguable case exists with some reasonable prospects of success in respect of both question of leave to appeal and substantive merits of appeal and that balance of convenience favours granting of stay – Edghill considered – appellant submitted that Commission denied procedural fairness as schedule of costs relied upon in making decision as to quantum of cost was not provided – appellant could not make submissions as to appropriateness – appeal not lodged within 21 days of decision – satisfied arguable case existed with some reasonable prospect of success – found appellant would not suffer financial hardship if required to comply with order – found respondent would repay monies paid if order was varied or set aside – balance of convenience does not favour granting of stay – application for stay order dismissed. Appeal by Just Relations – Consultants against decision and order of Bissett C of 25 November 2016 [[2016] FWC 8491] and 27 January 2017 [PR589765] Re: Ecolab P/L
March 9, 2017
Twenty six applications governing employment issues will be heard by the Fair Work Commission today. The applicants and respondents are: NIB Health Funds Pty Ltd (Sherwood), Luskintyre Investments Pty Ltd (Degenhardt), Sing Tao Newspapers Pty Ltd (Au), Sulles Pty Ltd (Sutherland), Oracle Corporation Australia Pty Limited (Lawrence), Boral Cement Limited (Tuddenham), Build West Pty Ltd ATF The Leverett Trading Trust (Middleton), Total Marine Technology Pty Ltd (Hutchinson), ACT Government as represented by the Health Directorate (Flegg), State of Victoria – Department of Justice (Minas), Endless Solar Operations (Cole), Metropolitan Fire and Emergency Services Board (Stojanovska), St Vincent’s Hospital (Melbourne) Limited (Chislett), Higgins Coatings Proprietary Limited (Hayman), Quest Acquisitions No 3 Pty Ltd (Kumbukage), Fitz Electrix & Halmicalt Pty Ltd (Martin), Journeys Kitchen & Bar (Winder), The University of Queensland (Lang), Eric Insurance Limited (Sellars), Middle Beach Education and Recreation Centre Inc (Barkla), Super A-Mart Pty Ltd (Lynch), Magill Campus and Community Children’s Centre Inc (Edgecomb), Murray Bridge Community Children’s Centre (Heard), Sandam Pty Ltd (Nappa), The C Hammick Family Trust & The Trustee for The Andrew Dean Family Trust (Kalioros).
March 8, 2017
Nineteen unfair dismissal/labour dispute applications will be heard by the Fair Work Commission today. The list includes: Gonzalez Steel Pty Limited (Gay), Cardwell Enterprises Pty Ltd (Simmons), Sydney Trains (Dhillon), The Star Pty Limited (Clavijo), National Union of Workers-New South Wales Branch (Belan), MCMLXX Pty Ltd (Spirkovski), Water Corporation (Batchem), Goldbreak Holdings Pty Ltd ATF The Brown Family Trust (Sophia), MMG Australia Ltd (Bennion), Chandler Macleod & Bell (Hobbs), The Trustee for Health Employees Superannuation Trust Australia (Donert), Easy Payroll Pty Ltd (Haines), Rubi Shoes (Voss), Menarock Aged Care (Schloss), Uraidla Physio (Mitchell), Murray Bridge Community Children’s Centre (Heard), Brown and Doleman Unit Trust (Hillyer), Oakatokes Grazing Trust (Keene, Osgood).
March 7, 2017
There are only eighteen unfair dismissal/labour contract disputes to be heard by the Fair Work Commission today. The full list is: Zalcom Pty Ltd (Ryan), Air Liquide Australia Limtied (Moffat), S&D Mamone Investments Pty Ltd (Jabboury), Fernwood Fitness Albury Wodonga (Jensen), Allity (Connor), Coles Epping (Guo), Hunter TAFE NSW (Smythe), Healthshare Pty Limited (Wilson), Chubb Fire and Security Pty Ltd (Arnold, Connolly), Endeavour Energy (Mcwhirter), The Trustee for the APR Business Trust (Cowen), University of Technology, Sydney (Opperman), Consolidated Mining Labour (Lawn), Westbourne Grammar School (Martin), Tri-Assett Pty Ltd (Seamer), Iron Mountain Australia Group Pty Ltd (Hand), Sunrise Way Therapeutic Community (Henderson).
March 6, 2017
The list for today’s unfair dismissal and contract dispute applications to be heard by the Fair Work Commission is as follows: St Vincent’s Hospital Sydney Ltd (Grygiel), Construction Staff NSW (Melim), Hunter TAFE NSW (Smythe), Global Disability & Health Care Services Pty Ltd (Stepnickova), Dykes Bros Pty Ltd (Changezi, Nayeb), Origin Energy Resources Limited (Costelloe), Star Track Express Pty Ltd (Gianetti), I Sec Security (Ibrahim), Concrete Waterproofing Manufacturer Pty Ltd (Pratt), Inovit Pty Ltd (Young), Marquis & Mollydooker Wines Pty Ltd (Gawith), Scott’s Transport Industries Pty Ltd (Pavlenko, Polito), The Trustee For Sajasan Trust (Ashby, Kapnistis, Wedding), Lovola B & Terrance R Murtagh (Garrett), Department of Natural Resources and Mines (Wanninayake), Transport Workers Union Of Australia Qld Branch (Giddens), Griffith University (Sorg), Australian Learning Group Pty Limited (Iijima), Dy-Mark (Aust.) Pty Ltd (Flowers).
