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
February 14, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant dismissed due to respondents poor financial performance and consequent inability to keep him employed – Small Business Fair Dismissal Code not applicable – respondent did not file Employer Response Form or any other material in response to the Commissions directions – respondent failed to attend hearing – respondent informed Commission that directors were based in China – only contact for them an email address and Australian branch no longer operating – applicant sought payment of wages, accrued annual leave and superannuation entitlements – also reimbursement for toll, mobile phone and fuel expenses – no support material filed regarding the company’s financial performance – applicant stated performance issues were never raised with him – only performance review he was commended and received a new car allowance – applicant not notified of reason for termination before decision was made – not given opportunity to respond – Commission found the termination was harsh, unjust and unreasonable – ordered compensation of $24,750 plus 9.5% superannuation gross, taxed according to law. Young v Inovit P/L t/a Inovit
February 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as National Business Development Manager for seven months – respondent dismissed applicant for misconduct concerning two issues at company event – claimed applicant was aggressive to female colleague whilst criticising employer – claimed applicant also made inappropriate comments to different female colleague – considerable conflict between parties about context – respondent also claimed after dismissal it became aware applicant misused position to obtain personal benefits from suppliers – Commission accepted applicant was aggressive to colleague though not sufficiently serious – procedural process did not result in unfairness in circumstances of case – found dismissal was not unfair – application dismissed. Rogers v Allianz Australia Services t/a Club Marine Insurance
February 14, 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 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was Assistant Branch Manager of respondent – applicant dismissed for providing two customers with products without charge – one customer supplied goods despite his account being on ‘Stop Credit’ – other customer was a ‘close friend’ who received $12,000 of goods without charge or record of delivery – applicant was notified of reason for dismissal in a meeting and he was given an opportunity to respond at that meeting – Commission found applicant’s conduct involving provision of goods was inconsistent with trust and confidence required for a continuing employment relationship – satisfied there was valid reason for termination – Commission did not accept applicant’s allegations the respondent had ulterior motive for dismissal – also did not accept applicant’s submission that other employees provided goods when a customer’s commercial account was on ‘Stop Credit’ – the equivalent conduct of the applicant would, on its own, have resulted in a first and final warning only – Commission found incidents were in breach of policies the applicant either knew or should have known – consequences of the dismissal for applicant with 13 years of service did not outweigh his serious misconduct – dismissal not disproportionate to gravity of misconduct – application dismissed. Karahalios v Reece Australia P/L t/a Reece P/L
February 14, 2017
GENERAL PROTECTIONS – extension of time – representative error – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day out of time – whether exceptional circumstances exist [Nulty] – administrative error by applicant’s solicitor led to application not being lodged by due date – application immediately filed the following day once error discovered – submitted failure to lodge on time solely a result of legal representatives error which applicant should not be held responsible for – Commission satisfied applicant taken action to dispute dismissal – satisfied representative error responsible for delay in filing – satisfied error on part of solicitor constituted exceptional circumstances – extension of time granted. Misura v P.R.E. Security P/L
February 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – employer policies – breach of alcohol and drug policy – applicant failed breath test for alcohol – over double the limit prescribed in company policy – applicant claimed lower than usual alcohol metabolising – evidence supported slighter lower than average alcohol metabolising – applicant had unblemished history of employment of 19 years – applicant aware of policy – breach not trivial – on balance factors weighed against conclusion dismissal was harsh, unjust or unreasonable – application dismissed. Bennett v Viterra Operations P/L
February 14, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged three days outside the statutory 21 day time limit – reason provided for the delay was applicant actively contested the matter but chose wrong jurisdiction to lodge complaint – applicant had filed Form F2 with the Western Australian Industrial Relations Commission (WAIRC) 20 days after termination – applicant was advised on 30 October 2016 that WAIRC had no jurisdiction to deal with matter – applicant filed application with the Commission later that day – Commission found the applicant’s reasons for delay were ‘exceptional circumstances’ [Nulty] – extension of time granted. Pritchard v Laserfax P/L atf B & T Unit Trust t/a Scope Business Imaging
