TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on basis that termination was genuine redundancy due to financial difficulties and change in its operational requirements – applicant asserted termination of his employment occurred for reasons other than a downturn in business – Commission satisfied that evidence put forward established respondent no longer required the position – fact that other employees not selected for redundancy did not detract from redundancy circumstance – approach in Ulan Coal Mines adopted – evidence confirmed redeployment options were examined – Commission satisfied the requirements of s.389 of the FW Act met – found case of genuine redundancy – termination of employment cannot be regarded as unfair – application dismissed. Hughes v The Trustee for Zippy Unit Trust t/a Zippy Cleaning and Maintenance Services P/L
February 28, 2017
TERMINATION OF EMPLOYMENT – high income threshold – enterprise agreement coverage – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as Offshore Maintenance Technician, Power and Control in Production, based offshore – respondent claimed applicant was not an employee protected from unfair dismissal as not covered by a modern award or enterprise agreement at the time of dismissal; annual rate of earning exceeded the high income threshold – respondent claimed international assignments were variations to the existing contract and not covered by the enterprise agreement – respondent remained the employer for payroll purposes but for all other purposes the assignment was managed by the host affiliate – claimed applicant’s position not kept open that was held before accepting international assignment – applicant had not performed any work in original location – on return from international assignment applicant rejected onshore position – had applicant accepted role upon return, would have fallen within the coverage clause and classifications in the Agreement – nature of duties while on assignment remained the same and also received the same pay – applicant contended that geographical restrictions had no effect – Commission found work applicant performed met criteria in award as tasks could be performed either offshore or onshore – held that applicant was covered by the Hydrocarbons Industry (Upstream) Award 2010 – satisfied covered by s.382(b) FW Act – determined common ground applicant employed by respondent for eight years therefore covered by s.382(a) – high income threshold was not relevant and applicant protected from unfair dismissal – respondent’s jurisdictional objection dismissed – matter listed for arbitration before Commission on a date to be advised. Stephens v Esso Australia P/L
February 28, 2017
ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – in October 2016 respondent issued notice of employee representational rights to its employees to negotiate replacement of current agreement – applicant presented its log of claims in November 2016 – three negotiation meetings had taken place up to 2 December 2016 – respondent sought cuts in wages and entitlements as result of economic downturn – applicant accepted some cuts to wages, but did not agree to full reduction proposed by respondent – agreement went to vote on 13 December 2016 and was rejected – respondent subsequently made application to terminate current agreement – as a result of that application, applicant lodged application for a protected action ballot order (PABO) – respondent opposed application on basis that applicant has not been genuinely trying to reach agreement – respondent argued that applicant failed to acknowledge the respondent’s position and the critical nature of the reduction required in order to remain competitive – Commission considered s.443(1) and s.443(2) – onus is on applicant to prove that it has been ‘genuinely trying’ to reach agreement – a finding that an applicant has not genuinely trying to reach agreement will necessarily involve accepting evidence that the applicant had some other, extraneous purpose [JJ Richards & Sons] – satisfied that applicant’s intention is to reach agreement with respondent based on fact that meetings have been held, claims have been put to the respondent and concessions have been made by applicant – concluded that parties have simply come to a stalemate in negotiations, and the fact that the applicant has not agreed to the reduction in wages and entitlements to the level the respondent believes is necessary does not mean that they are not genuinely trying to reach agreement – Commission satisfied applicant has been, and is, genuinely trying to reach agreement – application granted. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Konecranes P/L
February 28, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about matter under Nyrstar Port Pirie Enterprise Agreement 2014 (Agreement) and NES – applicant is a Grade 2 Tradesperson – made application for dispute concerning classification – concerned application of Classification Structure and Base Salary Levels contained in Appendix 1 of Agreement and application of Performance Standards Guide – applicant made request to be reclassified – outcome of decision likely to have flow on effects to other employees – applicant submitted that Performance Standard Guide created by Nyrstar without consultation and after Agreement approved, was additional document that went beyond requirements set out in Agreement and should not be used to determine employees’ classifications – Nyrstar submitted that first step in implementation of new classification structure was to align employees to their appropriate classification structure within the structure – further submitted that focus was to engage with experts and to develop Implementation Guidelines – If employee had some, but not all competencies, training programme was developed – once process was completed, process for progression through Grades commenced which resulted in consideration being given to elements of performance standards – Performance Standards Guide was subsequently developed – Commission considered Agreement Classification Structure contained in Appendix 1, Clause 2 which provided for progression within each level – progression was subject to consideration of skills utilised by employee and subject to consideration of individual performance – Commission found that Nyrstar produced internal document which was intended to reflect requirements and expectations for Grades at each level – Commission further considered Performance Standards Guide Tradesperson Classification document – found that Performance Standards Guide was not subject of agreement between parties or submitted as part of agreement approval process – found that it was a more expansive document and would not be an issue if it was consistent with Classification Table in agreement – imposed additional requirements not contained in Classification Table – Commission applied principles of interpretation in Golden Cockerel to Agreement and Performance Standards Guide – found Performance Standards Guide imposed obligations in excess of those required by Classification Table in Agreement – found not agreed document or industrial instrument – cannot operate to undermine or impose greater obligations in Agreement – Commission ordered Nyrstar reassess applicant’s eligibility for promotion by reference to Agreement within 14 days of decision. Stevens v Nyrstar Port Pirie P/L
February 28, 2017
TERMINATION OF EMPLOYMENT – identity of employer – demotion – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant initially employed by labour hire contractor in 2010 to supply security services to respondent who was sole provider of security services to Metro trains in Melbourne – alleged he had been employed directly by respondent since June 2010 working regular hours – applicant lodged complaint with Fair Work Ombudsman regarding underpayment of wages in 2016 – respondent denied they were employer – labour hire company also denied they were employer – applicant’s usual shifts cut by respondent, not offered tax forms to sign and couldn’t contact respondent – lodged unfair dismissal claim in September 2016 – shifts restored with reduced hours after two weeks – provided evidence to Commission of employment relationship with respondent – Commission not satisfied that respondent provided definitive evidence that applicant was not an employee – respondent submitted that in 2016 Metro made changes to its security requirements with consequential reduction in shifts required – applicant received notice in December of change of employer – did not consent to change – Commission satisfied applicant employed by respondent as a causal employee on a regular and systematic basis with an expectation of ongoing employment – not satisfied that the events of September 2016 can be described as dismissal – not satisfied that, given legitimate business reasons, reduction in circumstances was dismissal – Commission satisfied that applicant continued to provide security services to Metro despite not consenting to respondent changing his employer to a different labour hire company who had taken over the work – not necessary to determine whether or not applicant was dismissed in December 2016 – application dismissed. Khan v Risk Protection Group
February 28, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – in decision at first instance the Commission approved the Sparta Mining Services P/L Enterprise Agreement 2016 with certain undertakings – First Appeal Decision [[2016] FWCFB 7057] concluded that question of whether respondent had complied with s.180(2) in relation to the industry codes of practice had not been dealt with – jurisdictional prerequisite in s.190(1)(b) of FW Act for the application were not fulfilled – additional factual matters emerged – three employees who voted upon Agreement were no longer employed by respondent – also employer now employed approximately 40 employees – gave ground that Agreement was not genuinely agreed to by employees – Full Bench ordered parties to adduce further evidence – respondent did not propose to lodge any further written submissions and did not wish to have the opportunity to make further oral submissions – appellant proposed that an enterprise agreement could only be approved of the requirements set out in the FW Act were satisfied – Full Bench found that the requirements of s.186(2)(a) had not been satisfied – rendered Agreement incapable of approval – Full Bench upheld appellant’s appeal – quashed the decisions of 5 July 2016 and 6 July 2016 – application for approval of Agreement dismissed. Appeal by Construction, Forestry, Mining and Energy Union against decisions of Spencer C of 5 July 2016 [[2016] FWC 3100] and 6 July 2016 [[2016] FWCA 4528] Re: Sparta Mining Services P/L (No 2)
February 28, 2017
ANTI-BULLYING – likely to continue – applicant dismissed – s.789FC Fair Work Act 2009 – application for alleged breach of general protections with a conference held in April 2016 – conference unsuccessful in resolving the dispute – anti-bullying application also made – applicant delayed submitting relevant material due to medical reasons until February 2017 – on 12 January 2017 applicant informed Commission employment with respondent had been terminated – subsequent unfair dismissal application lodged on 25 January 2017 – Commission advised parties due to unfair dismissal claim, Commission unable to make an order to stop bullying – Commission received submissions from both parties related to the issue of hearing the anti-bullying application – as the employee is no longer at work the Commission no longer has power to make an order to stop bulling, therefore the application has no reasonable prospect of success [Shaw v ANZ] – power to dismiss application on the basis of no reasonable prospect of success discretionary [Application by P.K] – Commission considered that application for unfair dismissal leading to reinstatement at some point is speculative and uncertain – satisfied currently no risk of applicant being bullied at work – satisfied application has no reasonable prospect of success – applicant sought legal advice from Commission, advised that Commission cannot provide legal advice – application dismissed. Application by C.I
February 28, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applicant subject to disciplinary action for alleged misconduct – received final written warning and 4-day suspension – employee allegedly used company truck and forklift unauthorised for personal purposes, stored bricks on employer’s premises unauthorised and failed to adequately restrain load of bricks on company truck – employee covered by BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement) – applicant submitted evidence proved employee had authorisation to use truck and load had been restrained adequately – sought warning be revoked and employee paid for 4-day suspension – respondent submitted Commission did not have jurisdiction to order removal of final written warning but accepted it had jurisdiction to deal with suspension – contended penalty was appropriate given employee had not sought permission to use truck and breached load restraint guidelines – Commission found employee did not engage in misconduct – held decision to stand employee down for 4 shifts invalid and therefore employee entitled to be paid for those 4 shifts – construction of Agreement – Golden Cockerel applied – Commission found Agreement quite specific in relation to Commission’s role in respect to matters arising under Agreement and NES – found Commission did not have jurisdiction to deal with employee’s final warning – orders made. The Australian Workers’ Union v BlueScope Steel Limited
