ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Fulton Hogan Industries P/L NSW State Collective Agreement 2015 – Fulton Hogan conducts a road maintenance business – work often needs to be done quickly, at night or on weekends – sometimes necessary for employees to switch from night work to day work, or vice versa, during weekly roster cycle – employees paid eight hours ordinary pay on ‘rest day’ between cessation of night shift and commencement of day shift – dispute concerned payments that must be made to an employee who undertakes a shift change part way through the week and is then directed to work a fifth shift during the week – Fulton Hogan contended that work performed on a ‘fifth shift’ was part of their ordinary hours of work, and employees can be required to work such hours and are entitled to be paid their ordinary rate of pay – AWU contended that work performed on a ‘fifth shift’ was overtime, and employees may refuse to work those hours if they are unreasonable, and if worked must be paid as overtime – AWU posed two questions for arbitration: whether ‘rest day’ considered as time worked; and are ordinary hours concluded (ie reach 38) at the end of the fourth day – proper construction of clause 18.7 of the Agreement considered – Commission held ‘fifth shift’ not additional hours and is to be paid at ordinary rate of pay – answer to two questions no – application dismissed. The Australian Workers’ Union v Fulton Hogan Industries P/L
February 21, 2017
ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – application for approval of a single-enterprise agreement – whether genuine agreement – whether scope fairly chosen – application to approve MTP Enterprise Agreement 2016 by Thiess P/L – no employee or union bargaining representatives – three employees said to be covered and all voted in favour of agreement – agreement will cover employees engaged to work at or in connection with Mt Pleasant Mine Project – Thiess not yet successful in obtaining contract – no Thiess employees are or have been working at Mine – if successful in gaining contract hundreds of workers expected to be employed under agreement – Thiess submitted the three employees were engaged at time of vote in work necessary for and preparatory to work at Mine on equipment owned by Thiess which it may require for project – three employees selected from Brisbane based maintenance team and sent to Nebo and Mt Thorley sites to inspect and repair equipment – Construction, Forestry, Mining and Energy Union (CFMEU) raised concerns about lack of genuine agreement and scope not fairly chosen – CFMEU allowed to be heard – submitted employees not properly informed of effects of agreement – concerned about better off overall test (BOOT) and NES – concerned about cashing out annual leave – Thiess agreed to provide undertakings regarding pay rates, annual leave provisions, including for shiftworkers, all inclusive rates (to exclude overtime which is not part of the regular roster), and how they are calculated, to meet the BOOT – Commission satisfied undertakings address concerns and do not result in financial detriment to an employee – satisfied requirements for approval were met other than issues related to legitimacy of agreement being made and scope of agreement not being fairly chosen – CFMEU submitted the three employees not covered by agreement, not operationally, organisationally or geographically distinct and had no real interest in agreement – submitted scope excludes bargaining a greenfields agreement and denies those who will be employed at Mine opportunity to bargain – Commission not satisfied work performed by the three employees fell within coverage at 3.1(b) of agreement but satisfied work would fall within scope should Thiess obtain contract – not satisfied that the employees who voted were covered by agreement – s.186(2)(a) of FW Act not met – cannot approve agreement – however, if wrong, Commission also not satisfied scope of agreement fairly chosen nor agreement genuinely agreed to by employees covered by it – ss.186(3), (3A) and s.188(c) not met – cannot approve agreement – application dismissed. MTP Enterprise Agreement 2016
February 21, 2017
ENTERPRISE BARGAINING – majority support determination – ss.236, 237 Fair Work Act 2009 – application for a majority support determination lodged by Australian Workers’ Union (AWU) – employer to be covered by proposed agreement Huon Aquaculture Company P/L (HAC) – employees to be covered by proposed agreement engaged in farm attendant duties in connection with marine operations at Macquarie Harbour, Tasmania – HAC opposed making of determination on basis that it had agreed to bargain with AWU – submitted it did not consider relevant employees to be geographically distinct from rest of Tasmanian workforce and not ‘fairly chosen’ – AWU relied on remote nature of Macquarie Harbour site to support argument that relevant employees were geographically distinct from rest of Tasmania – Commission satisfied AWU was bargaining representative for relevant employees – satisfied majority of employees wished to bargain for proposed agreement – satisfied preconditions contained in ss.236(1), s.237(2)(a) FW Act satisfied – precondition contained in s.237(2)(b) considered – role of a majority support determination is to commence the bargaining process when there is majority support among employees to collectively bargain, when their employer has not agreed to do so [Coca-Cola] – Commission found that HAC had agreed to bargain with relevant employees and therefore s.237(2) was not fulfilled – application dismissed. ‘Australian Workers’ Union, The
February 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (AWU) (the Unions) applied to Commission to deal with dispute in accordance with dispute settlement procedure in Brockman Engineering P/L Workshop and Site Collective Bargaining Agreement 2014 (Agreement) – Brockman provided tank maintenance services to Viva Energy Australia P/L under contract – Viva employed employees to perform maintenance work on specialised plant and equipment but did not employ employees to perform tank maintenance work – Viva employees were regulated by Shell Geelong Refinery Enterprise Agreement 2013 – Maintenance Employees (Viva Agreement) – dispute concerned interpretation and operation of clause 39, colloquially known as ‘jump up clause’ – question to be determined whether Brockman required, under the jump up clause, to apply wage rates or any other benefits of the Viva Agreement that were superior to those applying under the Agreement – Commission agreed with Brockman that provision of clause 39 as a whole were ambiguous and did not operate in the manner contended by the Unions – determined that the entitlement created by clause 39 should be broken into four constituent elements: that ‘an employee is employed or engaged at a site/client premises’; there must be ‘a general provision that applies to employees engaged on that site/client premises’; that ‘general provision’ must provide ‘benefit that is superior to the provisions of’ the Agreement; and, if the first three elements were satisfied then ‘the superior conditions shall apply’ to that employee – Commission held there was no real dispute that the first and third elements were satisfied but doubted whether provisions of Viva Agreement could properly be said to be a ‘general provision that applies to employees engaged on the client/site premises’ – that Viva Agreement had limited application and only applied to Viva’s employees, notwithstanding that they were engaged on Viva’s premises – Commission determined accordingly and no orders necessary. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Anor v Brockman Engineering P/L
February 20, 2017
Ankush Sharma has had his unfair dismissal claim against CMBM T/A Cleaning Company tossed out because he failed to respond to the Fair Work Commission. “A number of attempts were made to make contact with Mr Sharma on his mobile number without success. An email was sent and a voice message was left for Mr Sharma to contact my Chambers,” said Commissioner Simpson.
February 20, 2017
The Fair Work Commission has 23 unfair dismissal/employment dispute applications on the hearing list today including: Marquis & Mollydooker Wines Pty Ltd (Gawith), Toll Transport Pty Ltd (Hann), BBH Services Pty Ltd (Hipwell), Telstra (Hunter), Aboriginal and Torres Strait Islander Community Health Service Brisbane Limited (Renouf, Upkett), Safeguard Home Improvements Pty Ltd (She), STG Pumps Pty Ltd (Williams), PresCare (Alderslade), Stratco (Adams), TNT Australia Pty Ltd (Kokinovski), Australian Retirement Holdings (Priest), Christian Community School Ltd (White), Parabellum International Pty Ltd (Bolton, Mallard, Stonehouse, Wood), Australian Transit Group (Cox), Australian Government Solicitor (Waring), Ecowise Services (Australia) Pty Ltd (Latter), Priam Australia Pty Ltd (Broad), Anglicare Victoria (Humphreys), Wesley Mission Victoria (Dark).
February 17, 2017
A lightweight Friday list has a paltry seventeen unfair dismissal/contract dispute applications lodged for hearing. The parade includes: Police Citizens Youth Club NSW Ltd (Nicholls), Automotive Holdings Group (Clutterbuck), Raptis fisheries (Tomkinson), Child Adolescent Psychology Services – CAPS Pty Ltd (Riolo), Department of Immigration and Border Protection (Gibbens), Grandbridge Limited (Wiburd), Newmont Mining Services Pty Ltd (Lu), Metropolitan Fire and Emergency Services Board (Duggan), Bendigo and Adelaide Bank Ltd (Konakalla), SAE CREATIVE MEDIA INSTITUTE (Henebury), Republic Theatres Darwin Pty Ltd (Schneider), Standard White Cabs Ltd (Harrison), The Brain Injury Association of Queensland (Leatham), Australian Leisure and Hospitality Group Pty Ltd (Whipps), New centenary Mercedes Benz Pty Ltd (Kumar), CB&I Pty Ltd (Asiata), Community Services #1 Incorporated (Robertson).
February 16, 2017
The Fair Work Commission has 26 unfair dismissal and labour dispute cases listed for hearing today. The list includes: CNW Maitland (Roskell), Total Tools Bunbury (Virgin), Chubb Fire and Security Pty Ltd (Arnold, Connolly), Summit Care (Borg), Kmart Australia Limited (Devlin), Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney (Mahony), Iplex Pipelines Australia Pty Ltd (Heron), Mecure Darwin Airport Resort (Saia), Bechtel Construction (Australia) Pty Ltd (Clarkin), Sigmond International (Rodda), Jones Lang Lasalle (Vic) P/L (Walker), Airservices Australia (Baird), Monash University (Bluzer), Nursery and Garden Centre Pty Ltd (Budha), Asent Pty Ltd (Delacroix), Eureka Operation Pty Ltd (Kumar), I Cook Foods (Nawalage), Peabody Energy Australia PCI Mine Management Pty Ltd (Hill), The Brain Injury Association of Queensland (Leatham), Dial A Local Doctor (Meyers), Pro-Built Engine Reconditioning Pty Ltd (Zielke), McCosker Contracting Pty Ltd (Pennell), United Arab Emirates Embassy (Allam), Magill Campus and Community Children’s Centre Inc (Edgecomb).
