RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the issue of a right of entry permit to its official, Mr Harkins – Mr Harkins is employed as an organiser with the CFMEU – Australian Building and Construction Commissioner did not wish to make a submission in relation to this application – application determined without hearing – considered question of whether a person is a ‘fit and proper person’ [MUA] – also considered CEPU – Mr Harkins had previously worked for Incolink and Unions Tasmania, and was an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), in which he was issued entry permits on three separate occasions – CFMEU filed declarations in support of application – these declarations advised Mr Harkins had received appropriate training, had not been convicted of an offence involving conduct described in ss.513(1)(b) or (c) of FW Act, and had not had any entry permit revoked, suspended or had imposed conditions on any such permit – Commission accepted the information disclosed as accurate and correct – declarations also disclosed that Mr Harkins previously engaged in unlawful industrial action constituted by a 24-hour strike of employees in the electrical industry in Tasmania, action was taken to be conduct of the CEPU and CEPU was ordered to pay a penalty in 2005 for contravening s.38 of the Building and Construction Industry Improvement Act 2005 – Mr Harkins filed a statement to the effect that he understood that he must comply with the law and gave an assurance that he will do so – Commission took into consideration the contravening conduct that resulted in the imposition of a pecuniary penalty, the significant passage of time between the conduct outlined above and the current application being made and Mr Harkins’ attitude to compliance with the law, in attributing appropriate weight to this particular permit qualification matter – previous application for a permit of Mr Harkins was made by the Tasmanian Branch of the CEPU in 2009, both the Committee of Management and proposed permit holder declarations in that matter failed to disclose the abovementioned contravention and penalty – the nature of the non-disclosure and the failure to return the Previous Permit within the statutory period was conduct of a serious kind and ought to have been included in the application for the Previous Permit – Commission held explanations provided to have been genuine and accepted that non-disclosure was one of inadvertence rather than deliberate – found ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Harkins for his past wrongdoing – the assessment was whether having regard to the permit qualification matters, some of which discloses past wrong doing, Mr Harkins was now a fit and proper person to hold an entry permit – application granted – entry permit to be issued. Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
February 21, 2017
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – applicant requested to commence bargaining in relation to a geographically and operationally distinct group of employees of O’Keefe Heneghan P/L and Auslife P/L and Rocky Neill Construction P/L t/a KNF Construction (KNF Construction) – KNF Construction did not reply – KNF Construction has agreement covering all its employees with a nominal expiry date of 15 February 2017 – applicant distributed petition to employees – claims 48 out of 60 relevant employees signed petition, and accordingly, was an appropriate method in determining majority support – KNF Construction objected to whether the group of employees was fairly chosen and the use of the petition to determine majority support – applicant submitted that petition should be provided to the Commission on a confidential basis and compared to list of relevant employees provided by KNF Construction to determine whether there was a valid majority – KNF Construction did not consent – lodged application for an order to produce names and signatures on petition, otherwise they would be denied procedural fairness – applicant submitted disclosure of names would be a risk to employees privacy and rights to freedom and association – argument as to whether confidentiality order should be made – Commission did not find any requirement to provide names and signatures on a petition to an employer on an interlocutory basis – did not find it appropriate or necessary for respondent to view names and signatures of petition – Commission not satisfied that there would be procedural unfairness to respondent – satisfied that confidentiality order should be made with respect to petition – ordered petition to be treated as confidential – KNF Construction ordered to provide list of employees covered by application to Commission. Construction, Forestry, Mining and Energy Union
February 21, 2017
TERMINATION OF EMPLOYMENT – extension of time – representative error – s.394 Fair Work Act 2009 – application for unfair dismissal lodged 25 days late – applicant submitted reason for late lodgment was ‘wholly the fault’ of his union – within a week of being dismissed the applicant attended the United Voice office (his union) on 11 July 2016 and instructed them to lodge an unfair dismissal application on his behalf – applicant became concerned when he had not heard anything about his application, so attended the union offices on 20 July 2016 to make enquiries – union lodged application on 19 August 2016 – whether exceptional circumstances exist [Nulty] – Clark considered – Commission satisfied that applicant was blameless in the delay – found union failed to act upon repeated instructions – satisfied reason for delay was entirely a representative error on behalf of United Voice – satisfied there were exceptional circumstances – extension of time granted. Phan v GJK Facility Services P/L t/a GJK Facility Services
February 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Mt Arthur Coal Enterprise Agreement 2016 – applicant participated in random drug and alcohol test at work – later that night was directed to undertake further drug test and refused to do so – issued with a final written warning – applied to Commission to deal with dispute in accordance with dispute settlement clause in Agreement – unsuccessful conciliation of dispute – Commission to determine four questions in dispute – inconsistency in parties evidence – respondent contended to have collected first urine sample at about 7:05pm and second sample at about 7:40pm, whereas applicant contended to have provided sample at 6:45pm and 7:05pm – Commission found it unlikely that applicant would have been able to provide first urine sample so early in circumstances where not advised of selection earlier and considering having to wait to have test completed – the drug and alcohol tester contended that sample was ‘extremely warm to touch’ and alerted to possibility of sample being adulterated – sample was ineligible as temperature was too hot – requested second sample from applicant – second sample had same physical presentation as previous sample, namely, it was turbid and cloudy – was negative for drugs, however tester requested applicant be escorted back to health clinic to provide third sample so that there was no question of integrity – believed applicant was under the influence of drugs which potentially may have caused a hazard or risk to himself and/or other employees at the mine – was not allowed to touch bag or go out for a smoke – request for smoke was within the scope of the Testing Policy as supervisor would be escorting – refused to take third test – applicant was aware that refusal to provide further urine sample would be considered a breach of Mt Arthur’s drug and alcohol procedures – applicant stood down and driven home – Commission found that applicant breached the Drug and Alcohol Procedure by refusing to undertake drug test – not unreasonable for respondent to issue applicant with final written warning – not unreasonable for respondent to require applicant to meet with the Employee Assistance Program provider – drug and alcohol testing had not been unreasonable and had been in accordance with policies and procedures – Commission declined to grant any relief sought by applicant – application dismissed. Muller v Mt Arthur Coal P/L t/a Mt Arthur Coal
February 21, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day late – reasons given for the delay included the Christmas and New Year period being within the 21 day timeframe, and that application was sent to the Commission by email within the 21 day time limit but it was not received – Commission held that there was no evidence that the employer would be prejudiced by extension of time – held there were exceptional circumstances [Nulty] warranting a grant of an extension of time – extension of time granted. Johnston v Empire Holdings P/L
February 21, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a business development manager – claimed constructively dismissed by respondent while on approved leave – respondent contacted applicant to clarify an issue in regard to the payment of a Townsville based trainer – respondent contended applicant voluntarily resigned and was not dismissed – resignation was accepted – evidence supported other options were available to applicant outside of resignation – applicant did not retract resignation – Commission found there was no dismissal at the initiative of the employer – requirement under s.385(a) not met – application dismissed. Carroll v Gold Training P/L t/a Gold Training
February 21, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a Lecturer from 19 January 2009 until resignation on 7 October 2016 – applicant claimed he was forced to resign to enable access permanent disability insurance benefits and superannuation funds – was diagnosed with depression and anxiety leading to inability to attend work – provided medical certificate stating he could work with restrictions that included avoiding contact and working from home – applicant was advised that this was not possible and that no suitable duties could be assigned to him – medical report received by the respondent on 14 April 2014 stated applicant was unable to work for three months and may then be able to commence a return to work program – respondent requested a further medical examination on 2 July 2014 advising applicant would be on unpaid personal leave until then – applicant advised respondent he was too ill to attend the examination and that he was applying for temporary disability benefits through his superannuation fund – applicant did not resume work between 4 April 2014 and resignation – applicant resigned in order to access permanent superannuation entitlements – Commission found that the decision not to allow applicant to return to work until a certificate of capacity was obtained was reasonable – found refusal to allow modified duties and conclusion that working from home was impractical was reasonable – respondent did not breach obligations to assist the return to work of an injured employee – no obligation to pay applicant for time not worked – decision to refuse the applicant to work from home was not a decision to stand down the employee – decision to refuse work from home and place on approved unpaid personal leave was not a demotion – Commission not satisfied that the dispute over work from home forced applicant to resign – applicant resigned after not being able to work for several years due to need for income and incapacity for work – applicant not dismissed – unfair dismissal remedy cannot proceed – application dismissed. Weber v Deakin University
February 21, 2017
ENTERPRISE BARGAINING – bargaining representative – privacy – s.185 Fair Work Act 2009 – application for approval of the Ron Southon P/L Enterprise Agreement 2016-2020 – CFMEU was not a party to the agreement – CFMEU sought access to Forms F16 and F17 lodged by employer – prior approval for enterprise agreement had been appealed by CFMEU [[2016] FWCFB 8413] (the Appeal) – Appeal had been allowed on the grounds that the agreement contravened s.55 of FW Act – employer submitted that access to the documents should be balanced with the need to protect the privacy of the individual bargaining agents – further submitted that the comments of the Full Bench in the Appeal relating to access to the documents were obiter – Full Bench had said that the Forms F16 and F17 should be ‘freely available to any member of the public’ unless exceptional circumstances ‘justify an order of confidentiality’ – CFMEU submitted that employer had not identified any exceptional circumstances that would prevent their access to the documents – Commission found that employer had provided no basis for conclusion of exceptional circumstances, and concluded that the Full Bench had considered the issue of access to the forms which was fully argued – Commission held that the finding of the Full Bench could not be considered obiter and was bound by the decision of the Full Bench – copies of the forms to be forwarded to the CFMEU. Construction, Forestry Mining and Energy Union v Ron Southon P/L
