MODERN AWARDS – 4 yearly review – ss.117, 156, 323 Fair Work Act 2009 – Full Bench – number of matters referred to Full Bench regarding payment of wages on termination of employment – purpose of Statement to express preliminary view – ABI/Ai Group claim current framework in various awards unworkable and place increased burden on employers – proposals will reduce costs and promote modern award objectives – Full Bench of view s.323 FW Act requires employer to pay wages within a month but not clear whether it encompasses amounts accrued under award or NES – s.117 does however state that termination payment to be made prior to or upon termination – issue broader than previously appreciated – provisional view that each modern award should provide for payment of wages/other amounts owning on termination – proposal put forward by Full Bench for future discussion. 4 yearly review of modern awards – payment of wages
February 23, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for relief from unfair dismissal – confidentiality order issued at beginning of proceedings – applicant employed as Corrective Service Officer (CSO) – dismissed for ‘gross misconduct’ – used unreasonable and unjustified force on prisoner – serious breach of the respondent’s Code of Conduct and Ethical Behaviour policy – applicant submitted no evidence of wilful or deliberate misconduct in particular incident – further submitted reasons for termination not defensible or justifiable on objective analysis of relevant facts and were prejudiced and not supported by credible evidence – respondent alleged applicant’s conduct was not authorised by s.143 of Corrective Services Act 2006 (Qld) (CS Act) – submitted use of force should be last resort – alleged applicant knowingly made false declaration in an official record – further submitted Commission should take into account special vulnerability of prisoners towards CSOs – Commission found that no witness gave evidence that strictly supported CCTV footage – Commission accepted respondent’s findings of investigation – found that applicant’s actions were not lawful actions required pursuant to s.143 of CS Act – satisfied of valid reason for dismissal and that misconduct was serious breach of respondent’s code of conduct – dismissal not harsh, unjust or unreasonable – application dismissed. Mr S v Respondent
February 23, 2017
TERMINATION OF EMPLOYMENT – small business employer – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as jewellery sales executive – respondent submitted it was a small business and the dismissal complied with Small Business Fair Dismissal Code – applicant contended respondent not a small business and was an associated entity of larger organisation – Commission found respondent was not a small business employer as a principal organisation incorporated in Hong Kong controlled associate business – applicant dismissed for using mobile phone whilst driving and walking away without notice carrying property of business – respondent failed to inform applicant of these reasons – applicant believed real reason for dismissal was complaining about not being paid overtime – Commission found dismissal was sound, defensible and well founded – applicant was denied procedural fairness in dismissal process – held that dismissal was unjust and therefore unfair – ordered compensation of $2,902.50 before tax, plus superannuation at 9.5%. Lau v Nelson (Australia) J A P/L
February 23, 2017
MODERN AWARDS – dispute about matter arising under award – jurisdiction – ss.595, 739 Fair Work Act 2009 – dispute concerned written warning issued to applicant and her request to have written warning withdrawn – applicant sought to have Commission deal with dispute in accordance with Dispute Resolution clause contained in Clerks – Private Sector Award 2010 – respondent raised jurisdictional objection on basis that Commission had no jurisdiction to deal with application because dispute not about matter arising under relevant Award and/or National Employment Standards (NES) – submitted that applicant was employed under terms of Banking, Finance and Insurance Award 2010 rather than Clerks – Private Sector Award 2010 but that question of which Award had coverage was of no consequence as they contained same Dispute Resolution procedure – Commission satisfied nothing in Award or NES dealt with provision of warnings to employee about behaviour or work performance – held that terms of dispute procedure did not provide Commission with jurisdiction to deal with present application – application dismissed. Pavlic v SAI Global t/a SAI Global Property
February 23, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – respondent submitted that the applicant had abandoned her employment – applicant cited medical treatment and time zone differences as reasons for lack of contact prior to termination – date of termination of employment in dispute – whether exceptional circumstances exist [Nulty] – reason for delay by applicant included medical care and miscarriage of pregnancy – Kornicki v Telstra-Network Technology Group considered – Commission satisfied exceptional circumstances present – extension of time granted. Flanagan v Coaching College P/L t/a Coaching College
February 23, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as a Cabin Crew Supervisor – terminated due to serious misconduct – respondent alleged applicant repeatedly engaged in sexual harassment of a number of colleagues and that conduct was inconsistent with Equal Employment Opportunity policy – applicant denied all allegations against him – respondent invited applicant to attend meetings relating to investigation of allegations but applicant declined to attend – respondent forwarded to the applicant a notice of termination of his employment on 4 February 2016 – Commission found applicant read, acknowledged and accepted a contract of employment which required him to comply with the respondent’s policies during his employment – found the alleged conduct did occur and was serious misconduct – applicant’s dismissal not harsh, unjust or unreasonable – application dismissed. Applicant v Respondent
February 23, 2017
TRANSFER OF BUSINESS – enterprise agreement – varying agreement – s.320 Fair Work Act 2009 – application to vary transferable instrument by Commonwealth Superannuation Corporation (CSC) – ComSuper Enterprise Agreement 2015-2018 (transferrable instrument) approved by Commission on 19 June 2015 – ComSuper merged into CSC as and from 1 July 2015 – application sought to vary clauses 63.1 and 25.1 to align the performance management cycle of former ComSuper employees with the performance management cycle applying to other CSC employees – CSC and Community and Public Sector Union supported the proposed variations to the transferrable instrument – Commission satisfied it was appropriate to vary the transferable instrument as sought – order made. ComSuper Enterprise Agreement 2015-2018
February 23, 2017
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order that industrial action stop or not occur, against all employees employed at specific site, and not be organised by respondents – applicant submitted that employees and sub-contractors had attended a stop work meeting after a failure by sub-contractors to rectify errors in calculating invoices had resulted in invoices for weeks ending 22 and 29 September 2016 not being processed – the applicant submitted the stoppage of work amounted to a refusal to perform work and was therefore industrial action as defined by the FW Act – applicant submitted the industrial action was not protected and contrary to the dispute resolution procedure contained in the relevant enterprise agreement – Commission satisfied that stop work meeting constituted unprotected industrial action – Commission also satisfied that further unprotected industrial action was probable [Harbour City Ferries] – having made such findings, Commission now without discretion and must made order that industrial action not occur and not be organised – orders made. Toll Transport P/L t/a Toll IPEC v Transport Workers’ Union of Australia New South Wales Branch; Transport Workers’ Union of New South Wales
