ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – application for approval of the ALDI Derrimut Agreement 2016 by ALDI Foods P/L as General Partner of Aldi Stores a Limited Partnership t/a ALDI Stores – agreement covered all operational employees who would otherwise be covered by a modern award, employed in ALDI’s Derrimut region – Shop Distributive and Allied Employees Association (SDA) objected to agreement – submitted agreement did not pass the better off overall test (BOOT) and that subsequent undertakings provided by ALDI not sufficient to remedy BOOT issues – further issue regarding Notice of Employee Representational Rights (NERR) – ALDI had substituted word ’employer’ for ‘leader’ in final paragraph – determined prior to hearing that NERR issue to be deferred until decision handed down by Full Court of Federal Court in ALDI Regency Park – Commission satisfied that group of employees to be covered by agreement fairly chosen for purposes of s.186(3), based on operational and geographical distinction of employees – rates of pay in agreement significantly higher for most classifications than comparable award classification – Commission concluded that at the test time each award covered employee and each prospective award covered employee for agreement would be better off overall if agreement applied – conclusion based on indicative rosters and undertakings provided by ALDI, and consideration of agreement terms which are more beneficial and less beneficial and an overall assessment of whether employee would be better off overall [Armacell] – undertakings did not result in substantial change to agreement or cause any financial detriment to employees – satisfied ALDI complied with s.180(2) of FW Act – regarding NERR, identical issue addressed in obiter in ALDI Regency Park – ALDI submitted ALDI Regency Park did not provide clear guidance to Commission where NERR departs from strict form in FW Regulations – SDA submitted that despite opportunity, ALDI Regency Park did not overturn Peabody and application must be dismissed due to NERR’s deviation from prescribed form – ALDI to make application to Commission President under s.608 for referral to Federal Court of questions related to NERR compliance with prescribed form – Commission unable to approve agreement unless satisfied valid NERR issued – with exception of NERR issue, Commission otherwise satisfied that agreement met all legislative requirements for approval – due to further legal proceedings regarding NERR, Commission’s decision issued as interim decision – approval or dismissal of application stayed until applicant requests final decision to be issued, or conclusive determination provided by a Full Bench of Commission or Full Court of Federal Court or other circumstance Commission deems requires a final decision. ALDI Derrimut Agreement 2016
February 7, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with a dispute under QBE Enterprise Agreement 2016 made on 6 October 2016 – respondent raised a jurisdictional objection to the application, submitting that at the time the application was made the applicant was not an employee, and therefore not covered by the Agreement – this decision only deals with the jurisdictional objection – on 11 August 2016 respondent sent a letter to applicant notifying her that her role had been made redundant and she would commence a four week period of redeployment – further letter sent on 31 August 2016, notifying applicant that her employment would terminate on 7 September 2016 due to redundancy – at the time of her termination, the applicant was on a period of parental leave and was due to return to work on 30 September 2016 – respondent submitted in light of clauses 3(b), 38 and 40 of the Agreement, the Agreement did not cover persons no longer employed – applicant submitted the decision to run the redeployment period concurrently with a period of approved unpaid maternity leave was a dispute which remained unresolved as at 7 September 2016 when her employment was terminated – further submitted she suggested that the status of her employment should not be altered from approved maternity leave to redeployment until the agreed return to work date of 3 October – applicant filed a series of emails with her application showing discussions between herself and respondent, concluded with applicant commencing dispute resolution process in Clause 38 of Agreement – a majority in the Full Bench decision in Jajoo found the Commission had jurisdiction to hear an application to deal with a dispute in circumstances where Mr Jajoo had filed his application in the Commission after his employment had terminated – Broadspectrum considered – Commission held the application for the Commission to deal with a dispute was filed after the applicant’s employment had ceased – found applicant engaged in the dispute resolution procedure in the manner required before her employment was terminated so as to entitle her to bring the dispute pursuant to clause 38.6 of the Agreement, despite her no longer being an employee at the time of filing her application in the Commission – dispute arose when the employment relationship between applicant and respondent existed and applicant sought to progress a dispute under Clause 38 while still employed – disputes will arise while the employment relationship exists and continue after the termination of the employment, but this is not a bar to the Commission dealing with them [Jajoo] and [Broadspectrum] – found that applicant was engaged in the dispute resolution procedure in the manner required before her employment was terminated and this entitled her to bring the dispute pursuant to clause 38.6 of the Agreement, despite her not being an employee at the time of filing her application in the Commission – matter to be listed for further hearing. Toohey v QBE Management Services P/L t/a QBE Insurance
February 7, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – Clause 14 of the Black Coal Mining Industry Award 2010 makes provision for severance and retrenchment payments to be made to redundant employees – on 10 April 2015 a Full Bench of the Commission issued a decision [[2015] FWCFB 2192] and determination varying the Award by deleting clause 14.4(c) – as part of the 4-yearly review of awards, the Coal Mining Industry Employer Group subsequently proposed a variation to clause 14 to introduce a cap to the maximum entitlement payable – in conducting a 4-yearly review, the Commission takes into account the historical context applicable to each modern award and previous decisions relevant to any contested issue – severance pay was first introduced by a decision of the Coal Industry Tribunal (CIT) in 1973 – scheme further enhanced by CIT by the addition of the retrenchment pay scale in 1984 – Full Bench satisfied that it remains appropriate for the Award to continue to contain an industry-specific redundancy scheme broadly along the lines of that contained in clause 14 – largely because of the long history of the scheme, and its acceptance by employers and employees in the industry over many years – satisfied that there are certain distinctive features of the black coal mining industry that support the retention of the industry-specific redundancy scheme – given the abolition of the 60 years of age redundancy cap, the current entitlement is not the industry based scheme that previously existed – Full Bench held some amendment to clause 14 necessary – a cap, based on complete years of employment, should be applied to the retrenchment payment of two weeks for each completed year of employment in order to restore the industrial balance in the scheme in a non-discriminatory way – effective cap of 15 completed years of employment (or 30 weeks payment) should be applied to the retrenchment payment – a ‘grandfathering clause’ should be adopted to protect those employees who have already completed more than 15 years of employment – draft revised clause 14 of the Award attached – interested parties invited to file written submissions about the form of the proposed clause within 14 days of decision. Black Coal Mining Industry Award 2010
February 7, 2017
GENERAL PROTECTIONS – jurisdiction – ss.365, 604, 725 Fair Work Act 2009 – appeal – Full Bench – permission to appeal previously granted by differently constituted Full Bench [[2016] FWCFB 6892] – Commission at first instance determined general protections application was prohibited by s.725 of FW Act and dismissed application – role of Commission in s.365 applications considered – Full Bench concluded Commission is authorised and empowered to decide whether a general protections dismissal application can be prohibited by s.725 – appellant lodged complaint with AHRC against former employer before lodging application – challenged Commission’s conclusion in first instance that her application was in relation to her dismissal – relied on five grounds of appeal: that s.725 not contravened; that Commission erred in not properly characterising the general protections application; erred in interpreting the scope of restriction of s.725 so widely; erred by finding her application was ‘in relation to’ her dismissal when the named respondents did not employ her and could not have dismissed her; and failed to have regard to the definition of ‘dismissal’ embodied in s.386 – Full Bench satisfied Commission applied correct statutory purposed to s.725 – satisfied Commission applied the proper test to reach the conclusion that the appellant’s general protections application was barred by the operation of s.725 – satisfied appellant was required to make an election between the remedies available under FW Act and those available under the AHRC Act – does not consider that different respondents to different applications or complaints is determinative of whether such applications or complaints relate to the dismissal of the employee – Full Bench satisfied that Commission did not err in any of the ways contended by appellant in relation to the finding that the appellant’s general protections application was an application in relation to her dismissal, with the result that it was barred by s.725 – appeal dismissed. Appeal by Hazledine against decision and order of Kovacic DP of 26 July 2016 [[2016] FWC 4989] and [PR583263] Re: Mr Wakerley; Mr Giddings
February 7, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance seven appellants’ unfair dismissal applications were dismissed, the Commission found each dismissal was a case of genuine redundancy – Full Bench found appeal raised important questions concerning the application of s.389(2) of FW Act and granted permission to appeal on 9 August 2016 – in particular, in circumstances where the consideration of a swap of the positions of persons identified for retrenchment with persons who were open to a voluntary redundancy had been raised as a possibility by an employer or was a possibility sought by persons identified for retrenchment – grounds for appeal included that the Commission erred in finding each of the dismissals were a case of genuine redundancy and that it would not have been reasonable for the respondent to redeploy the appellants – in determining whether it would have been reasonable, a number of relevant factors might need to be considered – in Ulan the required qualifications for the position, the skills, qualifications and experience of the employee, the location of the position and the level of remuneration were all identified as relevant matters – Full Bench considered these to be only a sample of the matters that might be considered – no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy – Full Bench held the possibility of swaps should have been considered, and the respondent’s failure to do so, by removing that option from consideration altogether, resulted in the respondent having failed to comply with its obligations under s.389(2) – not satisfied that the respondent did all that it was required to do in determining whether it would have been reasonable in all the circumstances to redeploy a person whose position was redundant by allowing that person to swap with another employee who wished to accept redundancy – not satisfied that the dismissal of the appellants was a case of genuine redundancy – Full Bench allowed the appeal and quashed the Decision at first instance – applications will be referred to Commissioner Johns for rehearing. Appeal by Skinner and Ors against decision of Johns C of 4 May 2016 [[2016] FWC 2720] Re: Asciano Services P/L t/a Pacific National Bulk
February 7, 2017
Thirty-one labour dispute/unfair dismissal applications will be heard by the Fair Work Commission today. The full list is: Toll Transport Pty Ltd (Ristevski), Tingha Sands (Mallise), Granite Transformations Pty Ltd (Johnson), Momentum Wealth Pty Ltd (Hughes), Boom Logistics Limited (Parker), Water Corporation (Batchem), Inner West Towing Pty Ltd (Maynard), Sydney Tools (Small), R.M Williams Pty Ltd (Cinque), Helensburgh Coal Pty Ltd (Taylor), Metro Trains Melbourne Pty Ltd (Lavanderia), Buckingham & Co (Eltham) Pty Ltd (Viapiana), Aurora Australis Holdings Pty Ltd (Corrie), McLeod Rail (Coughlan), Labourforce Impex Personnel Pty Ltd (Singh), Transdev Melbourne Pty Ltd (Buche), Davdot Facility services (Gunawardena), Snap Fitness Cragieburn (Barrientos), NC Labour Services Pty Ltd (Baker), HELP Enterprises Pty Ltd (Schulz), National Australia Bank Ltd (Hogan), HydroChem Pty Ltd (Weir), BHP Billiton Mitsui Coal Pty Ltd (Bailey), CMBM (Sharma), Aurizon Operations Limited (Tucker), Butterfly Silver Retail Pty Ltd (Pridmore), Islamic College of SA (Avery), Alpha Flight Services Pty Ltd (Tawasoly), V & R C Milisits (Savage), Build West Pty Ltd ATF The Leverett Trading Trust (Middleton).
February 6, 2017
The level of unfair dismissal/labour dispute applications being heard by the Fair Work Commission is steadily rising. Today 32 applications are to be heard: Pocket Group Management Pty Ltd (Mciver), Bettergrow Pty Ltd (Omeara), East Coast Car Rentals (Sun), Oracle Corporation Australia Pty Limited (Lawrence), HR Products (Rayner), Pringmount Services Pty Ltd (Miller), Holocentric Pty Limited (Schiff), Mineral Resources Limited (Williams), BHP Billiton Limited (Pusch), R.M Williams Pty Ltd (Cinque), Eureka Operation Pty Ltd (Kumar), Serendipity (WA) Pty Ltd (Pytellek), McLeod Rail (Coughlan), Presbyterian Church of Victoria Social Services Committee (Boyce), Easitag Pty Ltd (Vassallo), Woolworths Limited (Adamis), Borg Manufacturing (Polytec) (Jelic), Telstra Corporation Limited (Dullaghan), Laminex Australia (Millar), Rural City of Wangaratta (Hansen), Shahin Enterprises Pty Ltd (El-Ali), Cafe SA Pty Ltd (Kurda), Waterfind Australia (Sevilla), Millenium Services Group Ltd (Hannemann), Garry Crick’s (Nambour) Pty Ltd as The Trustee for CRICK UNIT TRUST (Parker), The Trustee for the Ladegourgie Family Trust (Ali), Serco Australia Pty Ltd (Mcconnell), Sunglass Clearance Warehouse (Sims), Basketballtek Pty Ltd (Kerie), Riot Tinto Aluminium Limited (Gill), Interfreight (Bowers).
February 3, 2017
Steven Young has picked up $24,750 for his unfair dismissal from Inovit Pty Ltd.
