TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – on 13 September 2016 respondent requested applicant to sign Safe Work Method Statement – applicant refused – respondent queried why applicant refused to sign the Statement – applicant refused to provide explanation – applicant alleged to have repeatedly sworn at respondent – applicant stood down provisionally on pay – respondent ordered applicant to take personal possessions from office, return office key and have applicant’s access to company emails and digital profiles cut off during stand down period – applicant maintained he was sacked – invited to a meeting several days later – cancelled meeting – respondent made several attempts to contact applicant without success – applicant did not return to workplace following 13 September 2016 – Commission resolved no communications between applicant and respondent, whether in isolation or collectively, expressly terminated applicant’s employment – application dismissed. Lawson v Environet Australia P/L t/a ESP – Environmental & Safety Professionals
February 28, 2017
TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant’s income exceeded high income threshold – whether applicant covered by the Manufacturing and Associated Industries and Occupations Award 2010 (manufacturing award) or the Mining Industry Award (mining award) and therefore protected from unfair dismissal under s.382(b)(i) of FW Act – Commission held that the respondent business did not operate in the manufacturing industry, but in the mining industry, and so the applicant was not covered by the manufacturing award – held that the applicant was a supervisor, but that supervisors are not covered by the mining award [Fry], [McMillan and Norman] – held that applicant was therefore not a person protected from unfair dismissal, as he was above the high income threshold and was not covered by and enterprise agreement or award – application dismissed. Scarborough v Sandfire Resources NL t/a Sandfire Resources NL
February 28, 2017
CASE PROCEDURES – representation – ss.400, 596, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission granted permission for the respondent to be represented – grounds for appeal included that the Commission failed to properly and duly consider and correctly apply the Federal Court decision in Warrell v Walton – effect of s.400(1) of FW Act is that permission to appeal is not available on discretionary grounds but may only be granted if the Full Bench considers the public interest test is met – whether or not s.400 applies – Full Bench applied public interest considerations [GlaxoSmithKline] – rarely appropriate to grant permission to appeal unless arguable case of appealable error demonstrated – not commonly the case that permission is granted to appeal interlocutory decisions – Full Bench not persuaded that it was in the public interest to grant permission to appeal – even if s.400 did not apply, no discretionary grounds justifying granting permission to appeal – permission to appeal refused. Appeal by Rayner against decision of Binet DP of 19 December 2016 Re: Little Moreton P/L t/a H-R Products
February 28, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – Commission at first instance found that the employee’s dismissal was not in accordance with Small Business Fair Dismissal Code (the Code) – appellant challenged all identified aspects of the decision – 18 grounds for the appeal including failure to provide adequate reasons for findings and failure to determine the jurisdictional issue relating to the Code before considering the merits of the application – appellant also submitted permission to appeal based on public interest – GlaxoSmithKline Australia P/L v Makin considered – Full Bench accepted appellant’s submission that Commission erred in not discretely considering and determining whether dismissal was consistent with the Code before turning to issue of whether dismissal was unfair – however Full Bench found it does not follow from that conclusion that permission to appeal should be granted – Full Bench found decision procedure did not affect the obvious correctness of the conclusion that the dismissal was not consistent with the Code – found decision made sufficiently clear the basis upon which Commission decided the matter and has allowed the appellant a proper opportunity to exercise its appeal rights – Full Bench wholly satisfied that the text message and abusive phone call could only be understood as constituting a dismissal – not satisfied appeal raises any issue of general application or is counter-intuitive or manifests any injustice – permission to appeal refused. Appeal by Inner West Towing P/L against decision of Drake DP of 14 December 2016 [[2016] FWC 8582] Re: Maynard
February 28, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for relief from unfair dismissal dismissed at first instance – Commission found the applicant had deliberately headbutted a colleague for no apparent reason which led to a final warning – Commission found Mr Hughes behaviour at a subsequent Momentum social function was aggressive and had the potential to damage the reputation of Momentum – grounds for appeal included that Commission erred by applying the wrong legal test in determining whether there was a valid reason and findings made in relation to the altercation – Full Bench considered whether in public interest to grant permission to appeal – whether decision at first instance involved significant error of fact – Coal & Allied and GlaxoSmithKline applied – rarely appropriate to grant permission to appeal unless arguable case of appealable error is demonstrated [Wan] – Full Bench satisfied Commission at first instance duly considered all relevant evidence and no appealable error was identified – permission to appeal refused. Appeal by Hughes against decision of Williams C of 13 February 2017 [[2016] FWC 9072]] Re: Momentum Wealth P/L t/a Momentum Wealth
February 27, 2017
The applications list for unfair dismissal contract dispute matters in the Fair Work Commission today includes: John L Pierce Pty Ltd (Drysdale), Rashay’s Hume Hwy Franchise (Singh), South West Radiology Pty Ltd (Ramrakha-Sharma), Bloodstock Auction Pty Ltd (Mantell), Fork2U (Unregistered) (Burtonclay), Independence Ulladulla Incorporated (Pike), The Star Pty Ltd (Clavijo), CPSU, the Community and Public Sector Union-SPSF Group, Western Australian Branch (Suter, Van Wees), Labelmakers Group Pty (Senevirathna), Kitchen Galerie (Herry), Melbourne City Council (Grey), Jones Lang Lasalle (Vic) P/L (Walker), CCDO Family Trust and Gumley Investment Trust and NSASZA Family Trust (Richardson), Resthaven Incorporated (Woods), East Coast Development Engineering Pty Ltd (Dreger), Basketballtek Pty Ltd (Kerle), Shahin Enterprises Pty Ltd (El-Ali), Community Bridging Services (Szondy), Four ways Ltd Pty (El Fahim), TAFE NSW, Northern Sydney Institue. ONE TAFE (Schwarzenecker), Doyles Restaurants Family Trust (Zhang), IP Australia (Joss), Dykes Bros Pty Ltd (Changezi, Naseb), Tailored Workforce (Krueger), All Tools Pakenham Pty Ltd (Campbell), Oji Fibre Solutions (Aus) Pty Ltd (Ameti).
February 24, 2017
The unfair dismissal/employment dispute list in the Fair Work Commission today includes: NSW Trains (Ayub), TNT Australia Pty Ltd (Kokinovski), Cormack Packaging MFG Pty Ltd (Ali), Quad Services Pty Ltd (Cohen), Chevron Australia Pty Ltd (Solin), Enjoy Going Pty Ltd (Zhang), Chamber of Commerce & Industry of Western Australia (Dhue), Celebration Nominees Pty Ltd (Beswick), Groote Eylandt & Bickerton Island Enterprises Abor (Massey), Iron Mountain Australia Group Pty Ltd (Hand), Suez Recycling and Recovery Pty Ltd (Biagini), AWX Pty Ltd (Oliver), Bundaberg Brewed Drinks Pty Ltd (Climas), National Jet Systems Pty Ltd (Sidler), Jetstar Airways Limited (Craik), Department of Health and Human Services (Morag), Ramada Suites Zen Quarter Darwin (Elayoubi).
February 23, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – ss.595, 739 Fair Work Act 2009 – alleged dispute about casual conversion under the Unilever Australia Trading Limited – Tatura Site – Enterprise Agreement 2015 – Commission conducted a conciliation conference but the matter could not be resolved – question posed for arbitration by the AMWU was whether sub-clause 29.3 of the Agreement was ‘precatory in that it does not operate to allow the employment of permanent part time employees on terms contrary to the rest of the Agreement?’ – Unilever raised a number of objections to the matter proceeding to arbitration – Unilever contended that the question as formulated by the AMWU was beyond the jurisdiction of the Commission, that there was no actual dispute that needed to be resolved using the dispute resolution processes of the Agreement – further contended that the AMWU was seeking that the Commission give an opinion as to the interpretation of the Agreement rather than resolve an industrial dispute – jurisdiction of the Commission to deal with this application – jurisdiction arises through a term of the enterprise agreement which meets the statutory requirements of s.186(6) of FW Act – there are times when the Commission should decline to exercise its jurisdiction under the dispute resolution term of an enterprise agreement when the applicant has failed to comply with a procedural step for attempting to resolve the dispute at the workplace or enterprise level – not the case in the present matter – Commission has jurisdiction to deal with the matter in dispute under clause 9 of the Agreement and ss.595 and 739 of the FW Act – separation of powers challenge – Unilever submitted that the question posed by the AMWU and the relief it sought amounted to asking the Commission to exercise a judicial power – Kentz considered – necessary for the Commission to form conclusions as to the legal rights and liabilities of the parties to the Agreement and to give a decision expressing a conclusion as to the operation of the relevant terms of the Agreement, in order to discharge the Commission’s role in the dispute resolution procedure to resolve disputes between the parties to the Agreement – held nothing the Commission was doing in relation to the matter in dispute constituted the exercise of judicial power – issue for arbitration – clause 29.3 permits Unilever to propose forms of ‘flexible permanent part time employment’ for consideration by the parties – clause 29.3 is not precatory or hortatory or aspirational as contended for by the AMWU – clause 29.3 must be read and understood in the context of the Agreement – plain words of clause 29.3 refer only to the act of exploring ‘the possibility of creating’ a new concept of part time employment – question proposed by AMWU must be answered in the negative – clause 29.3 of the Agreement is not precatory in any sense. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Unilever Australia Trading Limited
