Unfair dismissal/contract disputes and employment rule challenges continue to dominate the Fair Work Commissioners workload. Today’s list includes: TGIF Asia Pacific Unit Trust (Keelan), TNT Australia Pty Ltd (Stamenkovic), The Scots College (Tsewang), Weir Minerals Australia Ltd (Rigby), ANZ (Sutton), Michaelpage Internatioal Recruitment Limited (Lightbody), Linfox Armaguard Pty Ltd (Power), Patrick Projects Pty Ltd (Strauss), Bechtel Construction (Australia) Pty Ltd (Clarkin), Fair Work Commission (Liakos), Electricity Networks Corporation (Boekenstein), Civic Disability Services Ltd (Mallet), Catholic Health Care Ltd (Playford), Inner West Towing Pty Ltd (Maynard), Anatole G Kowaliw & Associates Pty Ltd (Shaddad), Experian Australia Pty Ltd (Andersson), Lakeside Packaging Pty Ltd (Faamanu), Australian Clinical Labs (Lumagbas), SeaRoad Shipping Pty Ltd (Miola), Hanson Construction Materials Pty Ltd (Force, Whitteker), Flick Anticlimax Pty Ltd (Dalton), The Brain Injury Association of Queensland (Leatham), Air Liquide Australia Limited (Eyers), Baking Industry Training Australia (Yuke), JBS Primo Queensland (McCormack), McArthur River Mining Pty Ltd (Hill), NBM Developments Pty Ltd (Peterson), McArthur River Mining Pty Ltd (Hill), Kentz Pty Ltd (Roe).
February 14, 2017
ENTERPRISE AGREEMENTS – approval – ss.180, 185, 604 of Fair Work Act 2009 – permission to appeal – Full Bench – decision at first instance issued on 9 April 2015 approving MSS Security QLD Enterprise Agreement 2014-2018 with an undertaking – appeal lodged by appellant on 30 April 2015 – whether employees better off under Award or Agreement – appeal heard and Full Bench decision issued on 12 November 2015 – permission to appeal granted, appeal upheld, Full Bench concluded Agreement to be approved with amended undertaking [[2015] FWCFB 6923] – Second approval decision (Presidential decision) issued on 1 December 2015 setting aside decision at first instance and approving Agreement with amended undertaking – Full Court of Federal Court of Australia quashed both Full Bench and Presidential decisions on 23 August 2016 and ordered Full Bench to rehear and decide appellant’s appeal according to law [[2016] FCAFC 124] – Full Bench reheard appeal on 5 December 2016 – permission to appeal granted in public interest – appeal raises important questions concerning application of the better off overall test (BOOT) where Member’s discretion to determine whether employees are better off under Agreement is in dispute – Full Bench to decide whether Commission erred by accepting the Agreement passed the BOOT – appellant submitted that Commission required to conduct and assessment to determine which clauses were more and less beneficial than Award, then make overall assessment of whether an employee would be better off under the Agreement – contended that Commission erred in failing to appreciate the effect of clause 4.3.5(a) of the Agreement – contended that Commission erred in relying on Harland – contended that Commission erred in approving Agreement while it contained clause 4.3.6 and in accepting undertaking offered by Respondent – asserted that by requiring an undertaking at all the Commission recognised that the Agreement did not pass the BOOT – should not have accepted undertakings, which effect would offend s.190(3)(a) of FW Act – should have refused to approve pursuant to s.192 – approval would result in contravention of s.323 – respondent contended the combined effect of clauses 4.3.1 and 4.3.5 would result in Agreement passing BOOT – asserted that its argument was accepted by both Commission and Full Bench and should likewise be accepted now – submitted that overtime is payable for any additional hours worked within cycle under Award, which is exactly the same under the Agreement – submitted that no provision of the Award determines how or when the ‘averaged’ hours are to be worked within roster cycle – asserted that no provision of the Award prohibits or prevents an employer allocating overtime within the roster cycle as it sees fit – respondent asserted that the need for an undertaking arises where a ‘concern’ exists, not that the Agreement doesn’t pass the BOOT and in any even the purpose of an undertaking is to resolve any BOOT issue – contended that the appellant’s assertions in relation to contravention of FW Act were without foundation – submitted that Commission should rehear application, consider statutory requirements and, if satisfied, should approve and provide reasons – Full Bench noted that decision under appeal is of discretionary nature and not open for Bench to substitute its view in the absence of error of appellable nature – noted that a key consideration regarding agreement approval is a determination that the Agreement passes the BOOT – NTEU v UNSW considered – the effect of clause 4.3.5 of the Agreement was disadvantageous to non-aggregated wage employees – they were better off under clauses 21.1 and 23.3 of the Award than under 4.3.5 of the Agreement – considered that undertaking accepted in relation to 4.3.6 of the Agreement did not satisfy the requirement prescribed by s.190(3)(a) and contravened s.323 – not satisfied that amended undertaking made employees better off under the Agreement – not satisfied there were other clauses of the Agreement that off-set the loss of overtime entitlements, or that other beneficial clauses result in non-aggregated wage employees being better off overall under the Agreement – not satisfied that overall assessment results in BOOT being satisfied – not rectified by amended undertaking – Full Bench decided there were appealable errors – Commission erred in approving the Agreement and did not properly exercise discretion – appeal upheld and decision at first instance quashed – Agreement not approved. Appeal by United Voice – Queensland Branch against decision of Gregory C of 9 April 2015 [[2015] FWCA 1559] Re: MSS Security P/L t/a MSS Security P/L
February 14, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appellant applied for permission to appeal and appealed three decisions approving enterprise agreements made by three different employers and their employees – the decisions, and the enterprise agreements to which they relate, are: a decision issued on 8 August 2016 (MMAOL Decision), where Cloghan C approved the MMAOL P/L Enterprise Agreement 2016 (MMAOL Agreement); a decision issued on 1 August 2016 (DOF Decision), where Binet DP approved the DOF Management Australia P/L Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (DOF Agreement); and a decision issued on 2 August 2016 (Smit Lamnalco Decision), where Roe C approved the Smit Lamnalco Australia Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (Smit Lamnalco Agreement) – appellant applied for the appeals to be heard together on the basis that they involved common factual and legal issues – this was resisted by the respondents (MMA Offshore Logistics P/L (MMAOL), DOF Management Australia P/L (DOF) and Smit Lamnalco Australia P/L (Smit Lamnalco)) – appeals heard sequentially – at the outset of hearing of first appeal, a member of the Full Bench raised with the parties an issue potentially affecting whether the DOF Agreement and the Smit Lamnalco Agreement were capable of approval under FW Act – issue had not been raised by appellant – issue was whether in each case a Notice of Employee Representational Rights (NERR) had been provided to employees who would be covered by the relevant agreement in accordance with requirement contained in s.174(1A) of FW Act – appellant sought leave to amend its notices of appeal with respect to the DOF Decision and the Smit Lamnalco Decision – alleged defect in NERR in each case was that it had not complied with prescribed form in Schedule 2.1 of Fair Work Regulations 2009 (FW Regulations), in that the form required telephone number of the Fair Work Commission Infoline (1300 799 675) be inserted but that the NERR in each case inserted a different telephone number, being that of the Fair Work Ombudsman (13 13 94) – Full Bench received written submissions from the parties concerning whether appellant should be granted leave to amend its notices of appeals – after the Full Bench had received those submissions, a Full Court of the Federal Court delivered its decision in Aldi – Aldi was concerned in part with the effect of s.174(1A) and consequence of failure to issue an NERR in accordance with the prescribed form – parties requested and were provided with an opportunity to file further written submissions in light of this decision – NERR prescribed by Schedule 2.1 does not actually set out the telephone number of the Fair Work Commission Infoline, but requires that number to be inserted – convenient to note that Commission’s website has at all relevant times contained a guide to completing and issuing the NERR, which identifies Fair Work Commission Infoline as being 1300 799 675 and contains a sample NERR which includes that telephone number – the matters agitated by appellant in the appeals may be placed in three categories – (1) a contention common to all three appeals, namely that that all three agreements had been made as a part of scheme amongst several industry employers to avoid bargaining with MUA and to thereby establish new industry standard of lesser employment conditions than that which currently exists (this issue was raised in grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal, and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal) – (2) matters specific to each appeal identified in the other grounds of the notices of appeal as they were at the time of the hearing (grounds 1-2 and 5-6 of the MMAOL Agreement notice of appeal, ground 1 of the DOF Agreement notice of appeal, and grounds 1-2 and 5-6 of the Smit Lamnalco Agreement notice of appeal) – (3) the NERR issue in relation to the DOF Agreement and the Smit Lamnalco Agreement – ‘confidence in the agreement approval process’ may be a significant matter weighing in favour of permission to appeal in respect of an appeal against a decision to approve an enterprise agreement, and that this may outweigh the fact that arguments proposed to be advanced in the appeal were not agitated at first instance [Hart] – in respect of the ‘common issue’ under appeal (grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal, and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal) the Full Bench considered that permission to appeal should be granted – further, the Full Bench admitted new evidence which appellant sought to adduce in support of these grounds of appeal – Full Bench also considered that permission to appeal should be granted in respect of grounds 1 and 2 of the MMAOL Agreement Decision appeal, ground 1 of the DOF Agreement Decision appeal and grounds 1 and 2 of the Smit Lamnalco Agreement Decision appeal – permission to appeal was refused in relation to grounds 5 and 6 of the MMAOL Agreement Decision appeal and grounds 5 and 6 of the Smit Lamnalco Agreement Decision appeal – in relation to the additional ground concerning the NERR issue sought to be raised in the DOF Agreement Decision appeal and the Smit Lamnalco Agreement Decision appeal, the Full Bench granted the appellant leave to amend its notice of appeal to add the additional ground in each case, and granted permission to appeal in respect of that ground – the common issue – necessary to make three significant observations about the statutory scheme for enterprise bargaining in FW Act – first was that there was nothing in the approval requirements for enterprise agreements in ss.186 and 187 of the FW Act which expressly prohibited the approval of enterprise agreements which had been established within a broader framework of industry bargaining or which reflected a standard established in an industry – second was that, subject to satisfaction of the BOOT requirement, the statutory scheme did not prohibit an employer from bargaining for wages and other conditions of employment which were inferior to those contained in an earlier enterprise agreement and/or those prevailing in an industry – third was that where an employee is not a member of an employee organisation, it is up to the employee to select who will represent him or her as a bargaining representative for a proposed enterprise agreement – appellant’s contention was that the three agreements came about as a result of a scheme between employers orchestrated by Australian Mines and Metals Association (AMMA) to obtain template enterprise agreements in maritime offshore oil and gas industry which undercut industry standard terms and conditions of employment established in the 2010 industry bargaining round, and to achieve this result by avoiding bargaining with the appellant – none of the employees covered by the agreements were at any relevant time members of appellant, so appellant could not have been their default bargaining representative at any time – the employees nominated persons other than appellant to be their bargaining representatives, and accordingly there was no basis for appellant to be involved in the bargaining process – grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal were rejected – other MMAOL Agreement appeal grounds – first appeal ground in relation to MMAOL Decision concerned the ‘genuinely agreed’ approval requirement – at first instance the Commissioner did not analyse the ‘genuinely agreed’ requirement in any detail, but only recorded his satisfaction that the requirement had been satisfied – new evidence which was adduced did not provide a proper basis for concluding that the MMAOL Agreement was not genuinely agreed – Full Bench considered the Commissioner was entitled to reach a state of satisfaction concerning the ‘genuinely agreed’ requirement based on the material before him – second appeal ground concerned the ‘fairly chosen’ requirement – appellant submitted the Commissioner erred by applying the test by reference to the employees who voted on the agreement, and not in relation to the group of employees covered by it – Full Bench found that in MMAOL Decision, the Commissioner made it clear that he understood that the requirement was to be assessed by reference to the coverage of the agreement under consideration – rejected the contention that the Commissioner failed to apply the proper test – Full Bench found no appealable error in the Commissioner’s findings concerning business rationale for choice of coverage of the MMAOL Agreement – other DOF Agreement appeal grounds – ground 1 of the appellant’s notice of appeal against the DOF Decision is in the same terms as ground 1 of the MMAOL Decision appeal – appeal ground raised issues concerning the ‘genuinely agreed’ approval requirement – Full Bench considered the material that was before the Deputy President was sufficient to enable her to reach a state of satisfaction concerning the ‘genuinely agreed’ requirement – appeal ground rejected – other Smit Lamnalco appeal grounds – ground 1 of Smit Lamnalco Decision appeal also concerned the ‘genuinely agreed’ approval requirement – Full Bench considered the Commissioner took into account the various factual considerations weighing for and against the conclusion that the agreement of the employees was genuine – appeal ground rejected – other appeal grounds also rejected – the NERR issue – no capacity to depart from the template in FW Regulations [Peabody] – consequence of failing to give a valid NERR is that the Commission cannot approve any subsequent enterprise agreement that is made [Peabody] – in Aldi, the Federal Court Full Court considered a challenge to the validity of the approval by the Commission of a particular enterprise agreement on a number of grounds including that the NERR issued by the employer did not conform to the form of the NERR in Schedule 2.1 – no member of the Full Court expressed the view that Peabody was incorrect – in light of Aldi, the Full Bench considered that the proper course was to follow Peabody and approach the NERR issue on the basis that a purported NERR which did not strictly comply with the prescribed form in Schedule 2.1 was invalid, and that an enterprise agreement which proceeded on the basis of an invalid NERR was incapable of approval – KCL considered – even if requirement for strict compliance still allowed some capacity for errors of an entirely trivial nature to be overlooked (the possibility of which was adverted to by Jessup J in Aldi at [49] and by the Full Bench in KCL at [17]), the Full Bench did not consider that the defect in the NERRs could be characterised as trivial – Full Bench concluded that the DOF Agreement and the Smit Lamnalco Agreement could not have validly been approved because the NERRs which the employer issued in each case were invalid – accordingly the DOF Decision and the Smit Lamnalco Decision must be quashed, and the applications for approval of the DOF Agreement and the Smit Lamnalco Agreement must be dismissed. Appeals by the Maritime Union of Australia against a decision of Cloghan C of 8 August 2016 [[2016] FWCA 5277], a decision of Binet DP of 1 August 2016 [[2016] FWCA 4654], and a decision of Roe C of 2 August 2016 [[2016] FWC 5249] Re: MMA Offshore Logistics P/L t/a MMA Offshore Logistics and Ors
February 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedure in Kentz P/L Ichthys Onshore Construction Greenfields Agreement (agreement) – dispute over application clause 19 of agreement, income protection insurance provisions and claim respondent had not paid income protection insurance – applicant submitted agreement requires respondent to pay income protection insurance into certain funds – respondent submitted was meeting obligations under agreement, although through different insurer – debate as to role of Commission in resolving dispute – whether Commission should (or could) determine income protection insurance policy to be paid relevant employees – agreed there were a number of threshold questions to be answered before Commission could consider if it had and should exercise powers to determine income protection insurance policy – Commission satisfied had jurisdiction to deal with dispute – Commission further held ‘approved insurer’ in context of clause 19(a) of agreement is an insurer offering relevant income protection insurance specified in paragraphs (1), (2) or (3) of clause; intention of clause is that income protection insurance specified in clause 19(a) be insurance taken out for relevant class of employees for as long as it remains available; if no other income protection insurance is agreed between relevant parties, listed products are default products for as long as they remain available and meet requirements of clause 19; should insurance no longer be available, parties should confer with view to reaching agreement as to an insurer/insurance product which is like insurance to that which is no longer available; there is no prohibition on parties agreeing to an alternative product that meets requirements of clause 19(a), use of phrase ‘such as’ is permissive in this respect; the 1.4% cap on cost of policy is maximum limit on cost of policy, agreement does not allow for additional contributions by employees; and cost of employer contribution to relevant Approved Worker Entitlement Fund and to approved insurer not part of employee’s gross earnings for purpose of clause 19 – Commission directed parties to confer on resolution of underlying dispute, that is, income protection insurance to be provided for relevant employees – Commission advised it was not understood at this point in time that insurance product specified in clause 19(a)(1) was no longer available – Commission held applicant required to advise Commission within six weeks of progress in discussions and/or of need to re-list matter. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz P/L
February 14, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – four applications for unfair dismissal remedy – 12 employees made redundant in July 2016 – four employees made unfair dismissal applications – respondent raised jurisdictional objection to applications on basis dismissals were cases of genuine redundancy – respondent submitted employer taken decision to restructure unprofitable position of warehouse – submitted restructure resulted in abolition of 12 jobs no longer required to be performed – submitted decision to implement redundancies made 5 July 2016 and on same day employer sent invitation to members of joint consultative committee to attend meeting on 11 July – respondent submitted there were no vacant warehouse roles and other roles were not suitable to applicants’ circumstances – applicants strongly challenged that respondent had complied consultation requirements of enterprise agreement – applicants submitted respondent had not consulted in any meaningful way, nor had it properly pursued reasonable deployment [CEPU v QR Limited] – applicants submitted dismissals were unfair because applicants were selected for redundancy via process that was severely flawed to extent they had no opportunity to challenge basis for their selection – Commission found no evidence of concern about budgetary underperformance of warehouse – found no proper opportunity for discussion about measures that might avert or mitigate adverse effects of decision to implement redundancies – found at no stage did respondent invite employees to give their views about impact of change – Commission found evidence unequivocally established respondent’s actions in respect to implementation of redundancies were so significantly noncompliant as to be grossly deficient – found no evidence of examination of potential redeployment opportunities – evidence demonstrated in December 2016 respondent employed 19 new permanent warehouse employees because of a requirement under enterprise agreement – found new employees engaged in jobs that were made redundant – would have been reasonable for applicants to have been redeployed into positions which had to be filled under obligations arising from enterprise agreement – dismissal of applicants were not cases of genuine redundancy and were harsh, unreasonable and unjust – applicants sought reinstatement as remedy – Commission found reinstatement appropriate – consequential orders for maintenance of continuity of employment and restoration of lost pay to be issued. Williams and Ors v Staples Australia P/L
February 14, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant employed as HSE HR Training officer for 10 months – dismissed for poor performance – respondent claimed applicant made aware of issues continually from April 2016 and provided with a list of recommendations for improvement – in October 2016 external auditor hired to do a preliminary assessment of upcoming audit – external auditors found unsatisfactory results with applicant’s audit – respondent submitted applicant provided with this evidence but applicant did not take responsibility for performance or show willingness to improve – applicant submitted had favourable performance review few months prior to dismissal – coupled with $5000 pay increase in April 2016 applicant argued there were no performance issues – Commission found evidence showed applicant advised on several occasions about performance issues and provided with opportunities to improve – found applicant not suited for particular employment and did not apply themselves adequately to role – found valid reason for termination but not on 16 August 2016 when she was first terminated – as such Commission found termination unreasonable as did not have a valid reason at time of termination – found termination harsh unjust and unreasonable – reinstatement not sought by applicant – compensation of $5,192.33 plus superannuation ordered. Purcell v Rock N Road Bitumen P/L t/a Rock N Road Bitumen
February 14, 2017
CASE PROCEDURES – representation – ss.394, 596 Fair Work Act 2009 – submission received for permission for paid agent or lawyer to represent applicant – submitted representative’s experience in jurisdiction would assist Commission to ensure it had the most reliable information before it could decide the issues in the case – Commission not satisfied representation would allow matter to be dealt with more efficiently – not satisfied involvement of lawyer or paid agent would assist in efficient resolution – Commission did not take into account the extent to which representative had, on various other occasions, failed to properly represent his clients in matters of this nature or had withdrawn from his involvement in matters involving arbitration shortly before the matter proceeded – permission for representation denied. Norrie v Craig Arthur P/L
February 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), The Australian Workers’ Union (AWU) (Unions) and some of their members employed by the respondent are variously covered by three agreements in respect to maintenance work the respondent is contracted by Origin Energy (Origin) to undertake – the agreements that cover the parties in dispute and pursuant to which the applications are made are the Transfield Services (Origin Energy Lang Lang and Yolla Facilities) Electrical and Instrumentation (ETU) Maintenance Agreement 2015-2018 (Yolla Electrical Agreement); the Transfield Services (Origin Energy Lang Lang and Yolla Facilities) AWU & AMWU Mechanical Maintenance Agreement 2015-2018 (Yolla Mechanical Agreement) (collectively the Origin Energy Agreements); and the Transfield Services (Australia) P/L and ETU Enterprise Agreement 2010-2014 (Thylacine Agreement) – CEPU lodged an application to deal with a dispute in accordance with dispute resolution procedure contained in Yolla Electrical Agreement and Thylacine Agreement – AWU also lodged an application to deal with a dispute under Yolla Mechanical Agreement – the applications concern a number of issues in respect of work performed at Origin Sites – respondent raised a jurisdictional objection arising from failure by Unions to comply with the dispute resolution procedures set out in Origin Energy Agreements and Thylacine Agreement – said the Unions had not complied with relevant threshold steps before matters in dispute may be referred to the Commission, and that the applications were made prematurely – respondent also separately opposed AWU application and submitted it should be dismissed because issues were resolved prior to hearing – dispute was listed for hearing to deal with jurisdictional objection – Commission found it had jurisdiction to deal with the disputes in the Origin Energy Agreements – found the dispute settlement procedures provided in clause 9.2 of the Origin Energy Agreements in respect of the issues that remained in dispute had been followed and Commission’s jurisdiction had been properly invoked – Commission not satisfied it had jurisdiction to deal with dispute settlement procedure of the Thylacine Agreement – not satisfied on evidence that CEPU had followed the procedure in clause 15.2 of the Thylacine Agreement – applications made by AWU and CEPU to deal with a dispute in accordance with dispute settlement procedure in the Origin Energy Agreements will be listed for conference. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Broadspectrum (Australia) P/L
