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
February 23, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Team Leader – covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) – applicant absent from work on four rostered shifts in January 2016 – disagreement over extent to which applicant notified of absences – applicant instructed by respondent to notify of future absences and process to do so – absence without notification in March 2016 – applicant given written warning – further absences in May 2016 – meetings held to discuss absences and alleged quality assurance fault – final written warning given – applicant last attended work 12 May 2016 – failed to attend work for subsequent rostered shifts – respondent unsuccessfully attempted to contact applicant through phone and in writing – respondent advised applicant by letter dated 30 May 2016 of termination of employment due to abandonment effective 13 May 2016 – whether dismissed at initiative of respondent or terminated due to unexplained absences that constituted abandonment of employment under clause 21 of the Award – applicant contended he was dismissed and absences not indicative of abandonment – had health issues and was admitted to hospital – limited evidence produced by applicant about his health during period of absences – respondent contended no dismissal at its initiative and failure to notify of absences met circumstances of clause 21 of the Award – Moly Mines and Gauci applied – Commission found applicant’s failure to notify respondent of absence for more than 14 days constituted abandonment of employment under clause 21 of the Award – termination letter had effect of acknowledging abandonment – not dismissed at initiative of respondent – termination not unfair – application dismissed. Bienias v Iplex Pipelines Australia P/L t/a Iplex Pipelines Australia
February 23, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant lodged application for relief from unfair dismissal – application dismissed at first instance – Commission found appellant resigned verbally – appellant submitted decision manifested an injustice – submitted that legal principle applied was inconsistent with those established by previous authority, Commission made error of fact by not inquiring as to the contract of employment, and regarding refusal to allow legal representation – further submitted contract of employment required written notice of termination making verbal resignation ineffective – contract not tendered in first instance – Coal & Allied Mining Services and GlaxoSmithKline considered – rarely appropriate to grant permission unless arguable case of appealable error demonstrated – Full Bench found verbal resignation not invalid despite written resignation required by contract – appellant did not challenge first instance finding that he resigned and confirmed resignation 2 days later – did not assert he was forced to resign due to conduct of respondent – Commission not required to inquire about contract of employment where neither party sought to rely on it – Commission did not make findings inconsistent with decided authority – unclear what could have been achieved had appellant been given opportunity to have legal representation – not satisfied in public interest to grant permission to appeal – not satisfied arguable case of error – permission to appeal refused. Appeal by Bonser against decision of Binet DP of 8 July 2016 [[2016] FWC 3224] Re: Nexus (Aust) P/L t/a Nexus Risk Services
February 23, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – application by Coal Mining Industry Employer Group (CMIEG) in respect of accident pay provisions – Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application and raised a threshold issue of whether the CMIEG was able to prosecute its application – question of whether CMIEG permitted to prosecute a case for reduction of accident pay benefits under the Award dealt with as a threshold question – Full Bench has issued three decisions dealing with the issue of accident pay – Determination varying the Award to delete clause 18.8 made on 19 December 2014 [PR559442] – CMIEG sought to be heard on the question of whether the 52 week limitation period concerning accident pay entitlements should apply to the Award – APESMA and CFMEU submitted that CMIEG’s request be refused because either the request was to reopen a matter which was finally determined by a decision of the Full Bench on 31 October 2014; or the request should be refused on discretionary grounds including public interest considerations and the need for a proper basis requiring the Commission to take a different course than that which has been earlier determined – Full Bench held employers in the coal industry wish to be heard in relation to a matter that has not been considered by the Commission in relation to the Award – considered that the Commission had jurisdiction to deal with this question as part of the 4 yearly review as its powers are conferred in broad terms and particularly in circumstances where the 4 yearly review is ongoing – appropriate to hear from the parties to ascertain whether changes of the type sought should be made – parties directed to confer on appropriate further directions for the hearing and determination of whether a 52 week limitation period concerning accident pay entitlements should apply to the Award. Black Coal Mining Industry Award 2010
February 23, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant lodged notice of appeal against decision to dismiss unfair dismissal application – Commission’s powers on appeal only exercisable if there is error on part of primary decision maker or is in public interest to do so – appellant able to identify small number of factual errors in decision but were all errors about peripheral matters which could not have had bearing on outcome of matter – Coal & Allied Mining Services considered – test under s.400 is stringent one – Commission determined application having regard to all matters required to take into account under s.387 of FW Act – Commission was not satisfied that dismissal was harsh, unjust or unreasonable – Full Bench found appellant did not demonstrate error on part of Commission in determining that unfair dismissal application be dismissed – found Commission’s conclusion was not unreasonable or manifested any injustice – found grant of permission to appeal would not be in public interest – permission to appeal refused. Appeal by O’Connor against decision of Commissioner Booth of 19 August 2016 [[2016] FWC 5719] Re: Crown Equipment P/L
February 23, 2017
TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision of Commission to dismiss application for relief from unfair dismissal – appellant argued Commission took incorrect approach to s.387(a) of FW Act and erroneously assessed the alleged misconduct – appellant further argued that there was discord among authorities on what matters arise for consideration under s.387(a) and that granting permission to appeal and settling the issue was therefore in the public interest – Full Bench agreed that there were competing authorities on the correct approach to s.387(a), but endorsed the approach in Bista – Full Bench satisfied that Commission approached the assessment of the misconduct correctly – Full Bench of the view that the gravity of an employee’s misconduct is increased in circumstances where the employee has previously engaged in the same or similar conduct and has been warned not to repeat it – no arguable case of error at first instance – public interest not enlivened – permission to appeal refused. Appeal by Diaz against decision of Hamberger SDP of 10 August 2016 [[2016] FWC 5305] Re: Anzpac Services (Australia) P/L
February 23, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant contended Commission erred in refusing to extend time for filing unfair dismissal application lodged five days late – permission to appeal application could only be determined by reference to notice of appeal – no outline of submissions filed, nor appeal book – no appearance by either party at hearing – most of appellant’s ‘grounds’ for appeal consisted of offensive comments – intelligible grounds sought rerun of case – whether permission to appeal in public interest – whether significant error of fact – public interest test is discretionary and involves broad value judgment [Coal & Allied Mining] – Full Bench concluded original decision was not unreasonable, manifestly unjust, nor counter-intuitive – appellant’s reasons for delay included difficulty getting legal advice and caring responsibilities – appellant never properly articulated why these reasons impeded filing of unfair dismissal application – grounds for appeal mostly irrelevant and did not address statutory requirements – grounds did not identify error that would justify granting of permission to appeal in public interest – permission to appeal refused. Appeal by Webster against decision of Drake SDP of 1 September 2016 [[2016] FWC 6210] Re: Costa Exchange Limited t/a Berry Exchange
February 23, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission found the appellant’s dismissal was unreasonable and unjust and ordered compensation of $1,100 – grounds for appeal included that there was no valid reason for dismissal; the respondent failed to provide appellant with fair treatment or to comprehensively and impartially investigate the allegations; and that the respondent had failed to prove that appellant committed serious misconduct – grounds of appeal did not challenge the Commission’s analysis and conclusions concerning the remedy – appellant submitted that the decision at first instance contained errors concerning the definition of serious misconduct and that it was in the public interest to clarify the definition – Full Bench considered that the appeal was fundamentally misconceived, because the issues it raised pertained to matters in relation to which the Commission made findings in his favour – held appeal sought to re-agitate issues upon which the appellant effectively succeeded before the Commission – found appellant had not demonstrated any arguable case of error in the decision and had not identified any issue requiring resolution at the Full Bench level – Full Bench had grave reservations about the manner in which the Commission dealt with the issue of remedy, particularly the assessment of the amount of compensation to be awarded – no appeal ground or submission advanced by appellant which challenged the assessment of compensation – not in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Jimenez against decision of Cambridge C of 5 August 2016 [[2016] FWC 5141] Re: Accent Group t/a Platypus Shoes (Australia) P/L
