CASE PROCEDURES – correction of error – ss.505, 602, 603 Fair Work Act 2009 – Maritime Union of Australia (MUA) had made an application to deal with a right of entry dispute under s.505 of the FW Act (Initial Matter) – in [2016] FWC 7073 (Decision), Commission found that employees employed by Toll Energy in occupations as set out in paragraphs (a) to (g) of witness statement and assigned to Off Loading Facility (OLF) team were following the occupation of waterside worker – therefore MUA entitled to represent their industrial interests under s.484(b) of FW Act – order issued [PR586898] permitting entry of MUA permit holder to the ‘MOF [Materials Offloading Facility] and WAPET landing located on Barrow Island’ in accordance with s.484 FW Act – in current matter, MUA made an application seeking a variation of the Order to correct errors – first went to identification of Toll Energy as the employer (employing entity issue) – MUA submitted clerical error by Commission which extended into Order – employees were employed by Toll Transport – respondent acknowledged Toll Transport as employer – second, went to identification of members of the OLF team (quarantine inspector issue) – submitted exclusion of persons undertaking quarantine duties as described in paragraph (h) of witness statement was inadvertent clerical error – submitted proper construction of Decision required conclusion that whole of OLF team met test of waterside worker, including team member undertaking quarantine duties – third went to inclusion in Order of location of discussions under s.484 (inclusion of locations issue) – Order stated that ‘a permit holder of the…MUA…may enter the MOF and WAPET landing located on Barrow Island for the purpose of holding discussions’ – MUA submitted limiting entry to MOF and WAPET an unintentional error and Order should be amended to refer to entry to Barrow Island – Commission considered the extent to which the matters raised by MUA could be characterised as obvious error, defect or irregularity in accordance with s.602 of FW Act – applied concept of ‘slip and error rule’ (Rule) in Re Timber and Allied Industries Award 1999 – s.602 FW Act intended to be statutory analogue of Rule [RotoMetrics Australia P/L] – use of Rule permissible where unintentional omission; order does not conform with intention of court and would have been made if issue mentioned in proceedings; where no material differences of opinion between parties; where error is manifestly clear – Commission found distinction between Toll Energy and Toll Transport became academic in hearing but remained a significant distinction such that it affected character of Order – satisfied employing entity issue not in dispute and Decision and Order reflected an oversight – Commission not persuaded quarantine inspector issue represented an obvious error – Decision was specific in limiting findings about the work undertaken within OLF team such that this excluded quarantine inspector – differential treatment of quarantine inspector function consistent with Decision – not satisfied reasoning in Decision showed exclusion able to be described as obvious error consistent with s.602 – extent of difference between MUA and respondent significant – with respect to inclusion of locations issue, Commission not satisfied relevant aspect of Order able to be described as obvious error, defect or irregularity – on considering evidence in initial matter, issue of where work undertaken and nature of work matters of particular significance – identification of locations in Order may have reflected conclusions reached with respect to that evidence in context of s.484 – Commission not satisfied aspect of Decision defective – determination of issue would likely involve reconsideration of fundamental elements of matters in dispute – change sought was fundamental and effectively required reopening of matter – Commission then considered extent to which s.603 could be applied so as to vary order regarding quarantine inspector and inclusion of locations issues – Grabovsky applied – Commission concluded that variations sought would require reconsideration of evidence in Initial Matter – given precision with which Decision described employees found to be waterside workers, quarantine inspector issue would in effect require reopening of matter – inclusion of locations issue would potentially necessitate a new argument about matters not fully canvassed in original hearing – Commission held s.603 did not provide capacity for consideration of variations sought – noted even if s.603 had provided power to vary Order, variations sought were not sustained – enough of a linkage in Decision to ultimate Order that variation of Order sought had potential to profoundly change intent of Decision – Commission held variation should be made to paragraph 122 of Decision to replace Toll Energy with Toll Transport pursuant to s.602– corresponding amendment to Order proposed – Toll Transport to have opportunity to challenge variation – Toll Energy submissions taken to incorporate position of Toll Transport as related entity – absent advice to contrary by February 2017, variation proposed by Commission to be made. Maritime Union of Australia
February 28, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission approved the JBU Enterprise Agreement 2016 – two grounds for appeal – that the Commission erred in failing to properly undertake the task to be satisfied that the Agreement had been genuinely agreed by the employees covered by the Agreement; and to be satisfied that the Agreement did not contain any unlawful terms – Transport Workers’ Union (TWU) applied for leave to intervene in the appeal in order to make a submission – appellant supported the intervention application – Full Bench considered that the submissions that the TWU proposed making if leave to intervene were granted, would largely be a repetition of the submissions of the appellant – Full Bench held submissions by a non-party to an appeal wishing to intervene which propose to duplicate and merely support the submissions to be advanced by a party on appeal are of little assistance and as such do not provide a proper basis for the Commission to permit such submissions to be made by way of intervention or otherwise – unnecessary to determine whether permission to appeal should be granted and whether the appeal should be upheld by reference to the two grounds of appeal initially advanced by appellant – instead, Full Bench have decided to grant permission to appeal and to uphold the appeal on procedural fairness grounds based on previously undisclosed ex parte communications passing between the Chambers of the Commissioner and Broadspectrum which traversed material facts in dispute and appear to have had a material effect on the outcome of the application for the approval of the Agreement – to the extent necessary permission granted to appellant to amend its notice of appeal to include a ground concerning the ex parte communications – Full Bench have taken the unusual course of allowing the matter to be raised at the hearing of the appeal because the existence and extent of the communications and their impact on the decision to approve the Agreement was not known to appellant until Broadspectrum filed its submissions on the appeal on 16 January 2017 – LCR Group considered – no suggestion that the ex parte communications were entered into deliberately in the sense that a deliberate decision was taken to exclude the appellant – permission to appeal granted because Full Bench considered the appeal raised important issues about the practice and procedure of the Commission concerning communications with parties in relation to extant proceedings – appeal upheld on procedural fairness grounds – decisions quashed – application for approval of the Agreement remitted to Kovacic DP for determination. Appeal by United Voice against decisions of Riordan C of 15 November 2016 [[2016] FWC 7936] and 18 November 2016 [[2016] FWCA 8209] Re: Broadspectrum (Australia) P/L t/a Broadspectrum
February 28, 2017
MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – 4 yearly review of modern awards – two proposed variations to the Rail Industry Award 2010 (the modern award) – first proposal was made by the Australian Rail Tram and Bus Industry Union (RTBU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) (together the unions), supported by the Australian Manufacturing Workers’ Union (AMWU), and concerned rates of pay for work on a Saturday, particularly overtime work – second proposal was made by a number of rail industry employers (the rail employers) and concerned the proposed inclusion of additional detail in the definition of the Level 9 Clerical, Administrative and Professional Classification – Rates of pay for work on a Saturday – unions submitted it was anomalous for employees under the modern award who work overtime on a Saturday to be paid at a lesser rate than those who work overtime between Monday and Friday – Full Bench held no doubt that the current provision for overtime pay on Saturday in the modern award was quite unusual, when compared to provisions in other modern awards – satisfied that the modern award achieved the modern awards objective at the time that it was made – not satisfied that circumstances have changed sufficiently to justify a variation to the award as proposed by the unions – proposal to alter the current rates of pay for overtime on Saturday rejected – Level 9 Clerical, Administrative and Professional Classification – classification structure was inserted in the modern award by the Commission as part of the award modernisation process – rail employers described the proposed amendment as incorporating the existing requirements and adding additional indicia and examples – submitted that the proposed definition would provide greater guidance to employers and employees as to which employees within the organisation fall within the definition – RTBU submitted that the proposed variation was nothing more than an attempt to limit coverage of the modern award – Full Bench found rail employers presented no evidence concerning the need to amend the classification description – found no evidence there has been any particular confusion about which employees are covered by the classification – Full Bench did not consider that the proposed change was justified. Rail Industry Award 2010
February 28, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – in first instance the decision found the summary dismissal was unjust but determined to order no compensation – if dismissal included notice then the dismissal would not have been found to be harsh, unjust or unreasonable – grounds of appeal based on Commission’s misuse of the Briginshaw principle; WhatsApp transcript was hearsay evidence and highly prejudicial; witnesses used not reliable as they themselves had engaged in a criminal enterprise; WhatsApp transcript was not corroborated by any other reliable evidence that could substantiate a finding to the Briginshaw standard; Commission misapplied the principles of Sprigg and erred in reducing the compensation payable to zero – appellant submitted the matter is in the public interest due to correct application of Briginshaw principle; misuse of hearsay evidence and denial of natural justice; the Commission made a finding of serious misconduct on inherently unreliable and hearsay evidence – considered whether in public interest to allow appeal test is ‘a discretionary one involving a broad value judgment’ [Coal & Allied] – whether decision at first instance involved a ‘significant error of fact’, the test being ‘a stringent one’ [Coal & Allied] – whether it is in the public interest is a discretionary test [GlaxoSmithKline] – not up to the Full Bench to decide if they would have determined the matter different but whether there was an error in exercising the discretion [House v The King] – Commission is not bound by the rules of evidence but it does not mean the rules are irrelevant [Hail Creek v CFMEU] – Full Bench determined WhatsApp transcript is not hearsay evidence – further, s.64(3) of the Evidence Act 1995 provides an exception to the hearsay rule where the maker is available to give evidence – nothing in the Commission’s decision inconsistent with the Briginshaw principle – Full Bench not satisfied appellant was denied procedural fairness – not satisfied Commission erred in decision not to order compensation – not satisfied in public interest to grant permission to appeal – permission to appeal refused. Appeal by Wong against decision of Cambridge C of 10 November 2016 [[2016] FWC 7982] Re: Taitung Australia P/L
February 28, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision at first instance granting an extension of time to file a general protections dismissal application – confusion regarding application form and online lodgment – form used required the credit card details to be filled in, they were not and therefore the application was never lodged and was consequently not received by the Commission – once three business days had passed and no phone call had been received, the employee contacted the Commission and was advised the application had never been received – on 1 December 2016 the employee lodged the online form with credit card details – appellant contended that the decision at first instance was attended by appealable error and provided seven grounds of appeal, and that it would be in the public interest for permission to appeal to be granted – Makin considered – there must be an arguable case of appealable error in order for permission to appeal to be granted – Full Bench granted permission to appeal because the appeal raised an issue of general application, namely whether the Commission’s forms and online lodgement facilities are capable of misleading a potential applicant into believing that an application may successfully be lodged online without immediate payment – however Full Bench not satisfied that the appellant had demonstrated any appealable error in the decision at first instance or that the appeal otherwise had any merit – considered that it was reasonably open to the Commission to conclude that exceptional circumstances existed – Full Bench did not accept the appellant’s submission that these circumstances could not be characterised as exceptional because they face any person who attempts to lodge online – submissions failed to take into account the employee’s reliance on her sister to lodge the application, and the circumstances which led her sister to use a version of the application form which was different to that generated by the online lodgement facility and which caused both to be misled about the correct method of paying by credit card – Full Bench held circumstances of this matter give rise to concerns about the Commission’s procedures for lodgement of general protections dismissal applications – permission to appeal granted – appeal dismissed. Appeal by Atanaskovic Hartnell Corporate Services P/L t/a Atanaskovic Hartnell against decision of Ryan C of 30 December 2016 [[2016] FWC 9205] Re: Kelly
February 28, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss. 394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant a major State owned utility in Western Australia – provides water, waste water and drainage services and is on the State’s Critical Asset Register – appellant terminated employment of employee on grounds of misconduct – alleged applicant had manipulated data sets while working from home causing appellant’s plant to shut down – Commission at first instance found employee’s dismissal was harsh, unreasonable and unjust – reinstatement ordered – appellant submitted Commission at first instance acted on the wrong principles – further submitted public interest enlivened – employee submitted appellant had not identified issues of importance that justified permission to appeal being granted – further submitted appellant’s argument on public interest grounds was irrelevant – it would be rarely appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated – the public interest might be attracted where a matter raises issues of importance and general application [GlaxoSmithKline] – Full Bench considered it would be in the public interest to grant permission to appeal – appeal raised important issues as to safe and efficient operation of appellant’s plants – first instance decision raised novel and unusual issues as to whether there was a valid reason for dismissal – serious implications for senior managers of appellant as a result of first instance adverse findings against them – satisfied an arguable case of appealable error had been established – permission to appeal granted – Full Bench considered it was not able to determine merits of the appeal without requiring further evidence from employee – necessary for parties to make more detailed submissions – parties also directed to attend conciliation conference chaired by the Commission. Appeal by Water Corporation against decision of Cribb C of 21 December 2016 [[2016] FWC 9088] Re: Batchem
February 28, 2017
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158(1) Fair Work (Registered Organisations) Act 2009 – Local Government and Shires Association of New South Wales applied to alter eligibility rules and sought consequential rule amendments – Norfolk Island Advisory Council (NIAC) was previously eligible for Associate membership – NIAC was dissolved by virtue of federal legislation and replaced by Norfolk Island Regional Council (NIRC) – change was part of transition from system of self-government on Norfolk Island to system of regional local government under Commonwealth of Australia and modelled on New South Wales local government arrangements – as NIAC was a member of Association prior to it being dissolved, NIRC applied to become an Associate member – no objections to application to alter eligibility rules – statutory pre-requisites for alteration met – Commission consented to eligibility rule alterations – alterations effective from 1 March 2017 – consequential rule alterations to be dealt with by General Manager or her delegate. Local Government and Shires Association of New South Wales
February 28, 2017
CASE PROCEDURES – evidence – s.508 Fair Work Act 2009 – application to restrict rights if organisation or official has misused permit rights – matter listed for voir dire hearing to determine whether material intended to be relied upon by the Australian Building and Construction Commissioner (ABCC), which was disputed by the Construction, Forestry, Mining and Energy Union (CFMEU), may be utilised for the final hearing on 27 March 2017 – Commission not bound by the rules of evidence and procedure in relation to a matter before it – satisfied that material relating to the historical records of the CFMEU regarding the CFMEU’s conduct relating to rights of entry, including previous judgments, may be relevant – Commission of the view it would not be prejudicial, nor procedurally unfair to the CFMEU by allowing the material to be tendered at the final hearing on 27 March 2017. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Ors
