ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – AWU filed application to deal with a dispute in relation to introduction of Trade Operator Model (TOM) into the Slabmaking Department at Port Kembla steelworks – Steel Treatment Department (Steel Department) and Shift Maintenance Department sit within Slabmaking Department – BlueScope decided to reduce the number of Operators by 6 in Steel Department – reduction to require tradespersons from the Shift Maintenance Department and shift staff employees to undertake Grade 3 Operator tasks during periods of peak workload in Steel Treatment Department – AMWU raised threshold issue that introduction of TOM a ‘significant change’ as defined by s.35.2.2(c) of the BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement) – as significant change, consultation provisions in clause 35.2.3 of Agreement required to be followed – not in dispute that maintenance employees and Unions had not been consulted in accordance with clause 35.2.3 – BlueScope argued introduction of TOM did not result in significant change for maintenance employees – Commission considered AWU, CEPU & AMWU v BlueScope in which BlueScope submitted that introduction of TOM a significant change in other departments and consulted with unions (Trade Operator Decision) – Commission found that requiring maintenance employees to learn and utilise new skills for at least 20% of their hours of work created a substantial change to the skills of a tradesperson working in Slabmaking Department – change to substantially alter the constitution of Slabmaking Department – disingenuous for BlueScope to make contrary submission to that made in Trade Operator Decision – found maintenance employees and unions entitled to be consulted pursuant to clause 35.2.3 of Agreement – proposal to introduce TOM into Slabmaking Department failed to satisfy threshold question raised by AMWU – found BlueScope did not comply with introduction of change processes in clause 35.2.3 of Agreement – consultation not fair, comprehensive or genuine – BlueScope required to recommence consultation in relation to proposal. The Australian Workers’ Union – New South Wales Branch and Anor v BlueScope Steel (AIS) Port Kembla
March 6, 2017
ANTI-BULLYING – repeated behaviour – reasonable management action – ss.789FC, 789FD Fair Work Act 2009 – application for an order to stop bullying – applicant worked as casual food employee and bar attendant at Park Beach Bowling Club Limited (the Club) – made application for order to stop bullying against CEO and Administration and Events Manager as persons she alleged engaged in bullying behaviour – applicant also sought order that warning issued to her by Club on 18 October 2016 be withdrawn or retracted – Commission considered test for what constitutes bullying under FW Act – test is objective – behaviour is unreasonable if a reasonable person, having regard to the circumstances, may consider it to be unreasonable – apparent from the reference to ‘repeatedly’ in s.789FD(1) of the FW Act that a one-off incident will not be a sufficient basis for the making of an application to the Commission [Re SB] – provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of ‘repeated’ behaviour, nor does the same specific behaviour have to be repeated [GC] – necessary to also undertake objective assessment of action to determine whether action constitutes reasonable management action [Re SB] – allegations of bullying behaviour were limited to four instances – first instance of alleged bullying related to the Club’s investigation into complaints made by employees against applicant – second instance related to an allegation that applicant was spoken to for being rude and insubordinate towards Bar Coordinator – third instance related to an alleged failure to conduct an investigation into a matter involving applicant in a fair and equitable manner – fourth instance concerned a complaint made by applicant against Bar Coordinator – evidence was given in proceedings in relation to some of the ways in which applicant refused to obey directions given to her by supervisors and managers at work – Club accepted that warning letter dated 18 October 2016 was not appropriate and was unreasonable disciplinary measure – Commission found that warning letter issued to applicant by Club Chairman was unreasonable behaviour and was not reasonable management action carried out in reasonable manner – having considered other allegations by the applicant, Commission not satisfied there had been any repeat of any unreasonable behaviour towards applicant by individual or group of individuals at work – Commission found applicant had not been bullied at work within s.789FD – application dismissed. Brown v Park Beach Bowling Club Limited v Ors
March 6, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Freightliner Australia Coal Haulage P/L Enterprise Agreement 2015 about whether ‘advice periods’ apply in circumstances where employer seeks to advance (by up to two hours) or delay (by up to four hours) the start of an employee’s shift – union contended that respondent must notify employees within the ‘advice period’ set out in agreement – employer contended ‘advice periods’ do not apply in these circumstances – principles of Golden Cockerel apply – two further principles relevant: conduct of parties after an industrial instrument is mad cannot be used to aid interpretation of that instrument [Essential Energy]; guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts [Linfox Australia] – right of employer to adjust the commencement time of a shift not contingent upon the giving of notice within the ‘advice periods’ – construction of agreement in manner contended for by employer preferred. Australian Rail, Tram and Bus Industry Union v Freightliner Australia Coal Haulage P/L
March 6, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as diesel fitter at Peak Downs Mine -alleged to have not complied with safe work instructions and rules and placed himself at an unacceptable level of risk on 22 March 2016 – applicant suspended with pay from the date of the incident – response to ‘show cause’ letter not discussed – dismissed 3 May 2016 – applicant submitted he had acted in accordance with training provided to him and in a manner known to staff and accepted – denied acting contrary to his obligations – submitted no valid reason for dismissal and procedural inadequacies – sought reinstatement – respondent submitted it should have been clear to applicant that breach of any safety-related policy might result in discipline or termination – submitted that if any procedural deficiencies found, dismissal still justified [Byrne] – contended reinstatement inappropriate due to loss of faith in applicant’s ability to work safely – Commission found a valid reason for dismissal – held dismissal unreasonable due to lack of procedural fairness – found dismissal unjust because decision to terminate based on allegations not put to the applicant – remedy – Commission held applicant had unsatisfactory regard for workplace risk and poor attitude towards safety – satisfied reinstatement inappropriate – compensation – applicant had secured other employment – Sprigg applied – four months’ compensation less lieu of notice, other earnings and 30% deduction for misconduct – total compensation of $25,448.98 plus 9.5% superannuation, less tax – order issued. Crawford v BHP Coal P/L
March 6, 2017
CASE PROCEDURES – costs – ss.611, 739 Fair Work Act 2009 – Commission issued decision concerning an application under s.739 of FW Act – Commission decided that the relevant provisions of the Southern Air (Tas) P/L Enterprise Agreement 2015 (Agreement) set out comprehensively the operation of rostered days off (RDO) and entitlements of employees when on various forms of leave, in particular that those provisions do not provide for the accrual of a credit towards RDOs when on paid leave [[2016] FWC 7266] – Southern Air (Tas) P/L applied for a costs order under s.611 – submitted application was made without reasonable cause – further submitted alternative of no reasonable prospects of success – Kanan considered – CEPU submitted that because the Commission rejected its arguments it does not follow that application was made without reasonable cause – further submitted that threshold required for Commission to order costs was not reached – costs respondent relied on Wodonga Rural Council v Lewis and submitted s.611(2)(b) was not enlivened – Keep v Performance Automobiles and Deane v Paper Australia considered – not satisfied that it should have been apparent that the CEPU had no reasonable prospects of success or that originating application was made without reasonable cause – application for costs dismissed. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Southern Air (Tas) P/L
March 6, 2017
TERMINATION OF EMPLOYMENT – misconduct – valid reason – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed from July 2011 until November 2015 as Operator at Dawson Mine – dismissed following incident involving dump truck operated by applicant coming into contact with critical safety barrier (centre bund) causing damage to barrier and truck – incident not reported – applicant contended no recollection of event due to alleged concurrent broken tooth causing loss of focus and awareness – respondent contended applicant responsible, knew of damage and failed to report it – respondent conducted investigation – applicant required to ‘show cause’ – explanation not accepted – at hearing expert reports provided by applicant and respondent witnesses – Commission considered all evidence in great detail – concluded it probable that applicant knew he had damaged bund or, at very least, that his vehicle had sustained reportable damage – accepted that applicant broke his tooth but conflicting evidence given about extent of damage, which tooth and when incident occurred – stated that applicant’s evidence and explanation contained significant inconsistencies – Commission satisfied on balance that there was a valid reason for dismissal – does not accept applicant’s version of events and contentions – dismissal not unfair – application dismissed. Frethey v Anglo Coal (Dawson Services) P/L
March 6, 2017
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158(1) Fair Work (Registered Organisations) Act 2009 – proposed changes sought by AMWU – eligibility for membership of organisation to include independent contractors – objection lodged by Transport Workers Union of Australia – matter adjourned to facilitate discussions aimed at settling objection – Memorandum of Understanding executed – undertaking by AMWU to take reasonable steps to avoid boundary disputes arising arise from any overlap in eligibility rules – Commission satisfied alteration made pursuant to rules of organisation – no other organisation effectively represents members eligible because of alteration to rules – changes granted. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
March 3, 2017
Thirty seven unfair dismissal applications are lined up to be heard today in the Fair Work Commission. The full list is: Mar Gra Pty Ltd (Quinlivan), Ivicon Australia Pty Ltd (Bramble), Anglicare NSW South, NSW West & ACT (Herald-Bock), Independence Ulladulla Incorporated (Pike), The Intermedia Group Pty Ltd (Rowsthorne), Allied Overnight Express PTY LTD (Diallo), Little Moreton Pty Ltd (Rayner), Ashlane Pty Ltd (Rappold), TJS Services (Rattanavilal), WESTMEAD FOOD & BEVERAGE PTY LTD (Shinebayar), IKEA Pty Ltd (Copson), Woolworths Limited (Fitzgerald), Navitas English Pty Ltd (Khayam), Asciano Services Pty Ltd (Forster), F and J Childcare Pty Ltd (Keneally), Sports Centre Pty Ltd (Sims), Millennium Services Group Ltd (Hannemann), Bicycle South Australia Inc (Bridge), Omega Greenpower Limited (Parkes), Van Oord Australia Pty Ltd (Korwa), Dial A Local Doctor (Meyers), Springwood Property Services Pty Ltd (Valles Escobar), Roman Catholic Trust Corporation for the Diocese of Townsville (Waterman), Churchill Management Pty Ltd (Athanates, Knights, Messent, Pearce), XL Express Pty Ltd (Biffin), Drivestar Management Pty Ltd (Ford), Barada Barna Aboriginal Corporation (Dargan, Roos), Skilltech-UASG (Gooch), Shaun’s Bar and Grill (Puckeridge), Sunraysia Murray Group Training (Ryan-Dengate), Rokon Pty Ltd (Whittingslow), Moorelex Pty Ltd (Jolley), Roy Morgan Research (Mulhallen), Jetstar Airways Limited (Albouni).
