ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Liddell Open Cut Enterprise Agreement 2013 – applicant worked as operator at Liddell open cut coal mine – was involved in a near miss incident when driving a 230 tonne haul truck within about 3.3m of another haul truck being driven by Ms Noone – respondent conducted extensive investigation into incident and suspended applicant without pay for two weeks and issued her with final written warning – applicant contended that disciplinary action taken by respondent was too harsh in circumstances – where the employee has engaged in conduct which constituted a ‘serious or major breach’ of the ‘required standard’ was, on its proper construction, limited, in that the employer must exercise its discretion honestly and conformably with the purposes of the Corrective and Disciplinary Policy and must not exercise its discretion capriciously, arbitrarily or unreasonably – neither the applicant nor Ms Noone reported the near miss incident – both concede they should have done so – witness stated to have a very good view of the incident and would have seen if applicant had put truck’s blinkers on – Commission accepted witnesses statement – found that applicant did not have right hand blinker on when turning off the haulage road in front of Ms Noone’s truck – applicant failed to comply with obligation under Transport Management Plan to drive vehicle in a ‘safe and sensible manner, having due regard for other vehicles’ – breached a ‘required standard’ within the meaning of the Agreement – satisfied that respondent exercised discretion to take a range of disciplinary action including suspending without pay – satisfied that respondent’s investigation was thorough, fair and reasonable – disciplinary action was not harsh, excessive or disproportionate in the circumstances – respondent acted within the limits of the discretionary power conferred on it. McKenzie v Liddell Colleries P/L
February 7, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.382, 383, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked for respondent for 7.5 months – applicant claimed he was paid cash and never received a payslip – applicant believed an Apprehended Violence Order (AVO) had been taken out preventing him from returning to workplace – respondent failed to provide an Employer Response Form despite reminders from the Commission – matter listed for telephone conciliation conference which respondent failed to attend – email received from respondent stating he had an ‘urgent family matter’ and that the applicant had ‘never been an employee of the company’ – teleconference convened on 30 August 2016 degenerated into a shouting contest and was terminated – on 11 October 2016 the Commission called the business and was advised it had been sold, and the new proprietor did not know the whereabouts of the respondent or about the matter – respondent requested extension of time for submissions and then failed to comply – respondent failed to respond to emails and his phone had been disconnected – proceeded to Determinative Conference and respondent did not attend – the Commission was informed by police that there was no AVO against the applicant – the Commission found that the applicant was an employee as business cards and the company Service NSW receipt included his details – period of employment less than the 12 month mandatory minimum employment period for a small business – applicant not a person protected from unfair dismissal in accordance with the FW Act – applicant also claimed he had not been paid for the last four weeks of his employment nor any superannuation – the Commission advised these matters are within the jurisdiction of the Fair Work Ombudsman – application dismissed. Hadou v Big West Diesel Service P/L
February 7, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Berri P/L (Leeton) Enterprise Agreement 2014- 2017 – dispute about the non-payment of a Laundry Allowance to employees – Berri also lodged an application to vary the Agreement in order to remove an ambiguity or uncertainty – both applications heard together – Golden Cockerel considered – Commission satisfied there was an ambiguity in the Agreement with respect to the Laundry Allowance – ambiguity arose from the failure of the Agreement to specify how the allowance is to be paid, and explain the basis of the payment – Agreement does not explain who is entitled to it, and there is no positive obligation to pay the allowance – clear that the specific entitlement words in the Agreement for the Laundry Allowance were deleted from the 1999 version of the Agreement – neither the AMWU officials nor delegates have raised the non-payment of the allowance for some 16 years – on the balance of probabilities the Commission accepted that the Laundry Allowance was bought out by the Company as part of a wages package for the 1999 version of the Agreement – 2014 Agreement needs to be read in the context of what went before it – satisfied that the correct interpretation of the Agreement is that there is no entitlement for employees to be paid the Laundry Allowance – Commission will not vary the Agreement to remove the reference to the Laundry Allowance as sought by Berri – nominal expiry date of Agreement is 1 February 2017, any re-drafting of the Agreement should be addressed by the parties in bargaining – application dismissed. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-New South Wales Branch v Berri Limited
February 7, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day late – applicant lodged his application by email at 12.15am, 15 minutes outside of the time frame prescribed by s.366(1)(a) of FW Act – reasons given for the delay were related to excessive anxiety – Nulty considered – Commission held short delay in filing the application was a relevant consideration, but it did not, without more, establish the existence of exceptional circumstances or otherwise justify the exercise of discretion to grant an extension of time – found applicant’s evidence was not sufficient to support a finding he was incapacitated, or otherwise unable to file his application in the 21 days following his dismissal – not satisfied there were exceptional circumstances – extension of time refused – application dismissed. Midon v JD Taylor Family Trust t/a ITS Management
February 7, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed for just over 11 months as Business Development Executive on full-time basis – dismissed for serious misconduct – respondent claimed applicant acted in an unprofessional manner – had opportunity to respond to reasons and disputed any wrongdoing – no procedural deficiencies in dismissal – gravity of misconduct was at lower end of scale of seriousness – poor attitude and failure to be a team player – not serious misconduct warranting summary dismissal – dismissal was disproportionate to his conduct – considered harsh and therefore unfair – order that respondent pay compensation of $9,464.42 before tax, plus superannuation. Muirhead v Parramatta National Rugby League Club P/L t/a Parramatta National Rugby League Club
February 7, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – at issue was reduction of total fixed remuneration (TFR) paid to employees as a result of changes to rosters/hours of work – initial decision deemed methodology used by employer to determine the TFR was appropriate and consistent with the terms of the Peabody Energy Australia Coppabella Enterprise Agreement 2013 – methodology proposed by the appellant rejected by Full Bench – agreement had no appeal provisions – appeal grounds were based on reliance on award underpinning the agreement – the agreement provided for award underpinning the agreement only where the agreement specifically indicated – roster clause of the agreement did not specify the award applied – agreement was silent on methodology for reviewing remuneration following a roster change – employer considered relevant provisions of the award in its construction of the TFR – dispute clause of the agreement conferred on the arbitrator a broad discretion to arbitrate the dispute – Full Bench agreed with initial decision and found there was no demonstrated appealable error – no proper basis to exercise their discretion to grant permission to appeal – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Asbury DP of 13 October 2016 [[2016] FWC 7428] Re: Peabody Energy Australia Coal P/L t/a Peabody Energy Australia PCI Mine Management P/L
February 7, 2017
TERMINATION OF EMPLOYMENT – small business employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission determined termination of employment was not one of genuine redundancy – found appellant was unfairly dismissed and was awarded compensation for loss of income – appellant sought permission to appeal due to his understanding the case was one of genuine redundancy not unfair dismissal; that compensation awarded did not take into account all the relevant evidence; and that the Commission failed to give consideration to several aspects of appellant’s case – public interest test is a broad discretionary one [Coal & Allied], [GlaxoSmithKline] – Full Bench determined appellant’s contentions were not part of Commission’s reasoning and notice of appeal does not otherwise raise any issue of general application or importance – not satisfied it would be in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Maat against decision of Cribb C of 23 November 2016 [[2016] FWC 8324] Re: WCH Services P/L t/a WCH Services
February 7, 2017
TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as CEO of the respondent in Racing industry – respondent objected to application on basis applicant’s was earnings were more than the high income threshold and he not covered by a modern award – applicant submitted that he was covered by the Registered and Licensed Clubs Award 2010 – respondent submitted Award does not cover employers in the Racing industry, that classifications in Award do not apply to a manager at CEO level and that the respondent does not fall within definition of ‘Club’ in Award – coverage of Award considered – Commission found respondent operates for benefit of members, however, not persuaded that a club that promotes and holds racing events is conducted for the benefit of the community – not satisfied that the respondent is a ‘Club’ within definition of the Award – Commission held that even if wrong in that conclusion, the respondent is not covered by operation of the exclusions in coverage of the Award – Commission not satisfied applicant was covered by modern award – not satisfied applicant was a person protected from unfair dismissal – application dismissed. St George v Gold Coast Turf Club Ltd t/a Gold Coast Turf Club
