TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission refused to grant appellant extension of time to file unfair dismissal application and dismissed application – found that while there was an acceptable explanation for part of the delay, there was no satisfactory explanation for the further delay and no establishment of exceptional circumstances – appellant raised ten grounds of appeal including denial of procedural fairness on basis that the Commission relied on counsel’s concession that hearing should proceed in absence of appellant and by Commission withholding view at hearing that appellant’s case lacked fundamental element and concluding hearing without raising issue – also alleged denial of natural justice on basis of reasonable apprehension of bias by Commission due to comments made immediately after hearing – Full Bench held in the public interest to grant permission to appeal – appeal involved a serious challenge to fairness of process conducted by Commission – review necessary to ensure that any alleged procedural unfairness examined and, if demonstrable, remedied – raised issues of general application concerning procedures applied in respect of extension of time applications under s.394(3) of FW Act – permission to appeal granted – Commission’s powers on appeal only exercisable if error made by primary decision maker – to establish appealable error in exercise of discretion under s.394(3), identification of error of type in House v The King required – Full Bench considered number of matters arising from the course of proceedings critical to determination of appeal – appellant at all times represented – directions gave appellant opportunity to file evidence – explanatory documents provided to appellant specifically identified need to explain whole of delay in bringing application – appellant chose not to file any statement of evidence explaining a period of the delay – representative present at hearing affirmed proceeding at hearing without appellant – no submission advanced explaining the delay or suggestion at hearing that representative wished to adduce evidence from appellant regarding reason for delay – application to re-open case did not disclose purpose of re-opening – Full Bench held prima facie these matters did not indicate any denial of fair opportunity for applicant to present case – only reason appellant did not give evidence in support of his own case or otherwise provide a proper explanation for delay was that he failed to take up opportunity to do so – procedural fairness required the Commission to give appellant a reasonable opportunity to present his case, not to ensure he took best advantage of opportunity – Full Bench rejected grounds of appeal – did not consider decision was attended by appealable error – satisfied refusal to grant extension of time was reasonably open to Commission in exercise of its discretion and that appellant was afforded procedural fairness – appeal dismissed. Appeal by Ashton against decision of Platt C of 21 October 2016 [[2016] FWC 7668] Re: Qube Bulk P/L
February 1, 2017
MODERN AWARDS – 4 yearly review – plain language – s.156 Fair Work Act 2009 – Full Bench – plain language re-drafting project comprises several elements, including reviewing the standard clauses in modern awards generally, as well as reviewing awardspecific clauses in certain awards that have been selected for redrafting as part of the project – five modern awards have been selected for plain language re-drafting – awards selected based on the relatively high level of award reliance among employers and employees in the industries covered – draft Guidelines were published on 9 November 2016 and interested parties made submissions – submissions raise two general points in addition to a number of comments directed at specific guidelines – first general point concerned the potential for plain language drafting to change the legal effect of an award term – Full Bench will amend the draft Guidelines to make it clear that the aim of plain language drafting is to make the award as simple and as easy to understand as possible without unintentionally changing the legal effect of the award – second general point raised concerned the weight to be accorded to the consent of interested parties – Commission intends to engage in an extensive consultation process – Full Bench will have regard to the views expressed by interested parties, but reject the proposition that the Commission should simply adopt the ‘consent positions of the parties’ – revised draft Guidelines will be published shortly and interested parties will be provided with a further opportunity to comment, before the Guidelines are finalised – written comments should be sent to [email protected] by 4.00 pm on Friday 10 February 2016 – the plain language expert prepared a redraft of the Pharmacy Award – Full Bench have determined a number of the contentious issues raised in relation to the revised exposure draft and have expressed a range of provisional views in respect of a range of other issues – at this stage not all of the issues raised by the parties have been addressed – further revised exposure draft will be published shortly – submissions in respect of the further revised exposure draft, the provisional views expressed in this decision and any residual issues which have not yet been determined should be filed by no later than 4pm on Monday 6 February 2017 – submissions in reply should be filed by no later than 4pm on Friday 10 February 2017 – further hearing will be held at 9am on Wednesday 15 February 2017 – all submissions should be sent to [email protected]. 4 yearly review of modern awards – Pharmacy Industry Award 2010
February 1, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.604, 774 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance declined to grant extension of time for unlawful termination application lodged 17 days outside the 21 day time limit – Commission considered s.774(2) of FW Act – found that it was not enough for applicant to establish an acceptable explanation for delay without also establishing that reasons represent exceptional circumstances – concluded no exceptional circumstances – appellant contended Commission wrongly found that there were no exceptional circumstances – referred Full Bench to authorities in support of his reasons and contentions – submitted that if extension of time not granted the appellant will never have the opportunity to receive justice – Commission’s powers on appeal only exercisable if there is error on the part of the primary decision maker – Commission will grant permission to appeal only if it is in the public interest to do so – GlaxoSmithKline applied – Full Bench not persuaded that grounds of appeal raise an arguable case of appealable error – House v The King considered – did not consider the Commission’s conclusion was unreasonable, manifested by any injustice or counter-intuitive – not persuaded that appeal raised issues of such importance that there was need for Full Bench guidance – no basis that would justify the grant of permission to appeal in the public interest or otherwise – appeal refused – first instance decision upheld. Appeal by Challa against decision and order of Johns C of 13 October 2016 [[2016] FWC 7397] and [PR586464] Re: Australia and New Zealand Banking Group Ltd t/a ANZ Bank
February 1, 2017
ENTERPRISE BARGAINING – bargaining order – ss.229, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss application by Construction, Forestry, Mining and Energy Union (CFMEU) for bargaining order – Commission at first instance found that for the bargaining order to be granted, the respondent must have engaged, or not refrained from engaging, in capricious or unfair conduct, and that the conduct undermined freedom or association or collective bargaining – found that by restructuring its operations and making workers redundant as a means of mitigating loss incurred by protected industrial action, the respondent, Capcoal, did not engage in capricious or unfair conduct – permission to appeal granted on the basis that dispute raised important questions about the application of s.228(1)(e) FW Act – appellant argued that that evidence provided proof of a failure by Capcoal to not engage in capricious or unfair conduct – Full Bench satisfied that Capcoal’s actions were a legitimate response to the commercial and operating circumstances it found itself in as a result of industrial action – Full Bench noted that employers would be at risk of breaching good faith bargaining obligations under s.228(1)(e) if they make employees redundant without legitimate business reasons, but that this was not the case in these circumstances – action of Capcoal not capricious or unfair – Full Bench also found that ‘protected’ industrial action leave employees immune from certain civil and criminal liability (including under the FW Act) but does not prevent an employer from responding to industrial actions in a manner that addresses its legitimate business interests – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against Decision of Asbury DP of 25 November 2016 [PR587924] Re: Anglo Coal (Capcoal Management) P/L t/a Capcoal
February 1, 2017
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant’s appeal grounds mainly relied upon findings at first instance which led to conclusion there was valid reason for dismissal, but dismissal denied appellant procedural fairness – appellant also contended remedy of four weeks’ remuneration was ‘unfairly calculated’ – Commission must not grant permission to appeal unless in public interest – appeals on question of fact may only be made if decision involved significant error of fact – statutory test is stringent [Coal & Allied] – public interest test is discretionary and involves broad value judgment [O’Sullivan] – appeal cannot succeed in the absence of appealable error [Wan] – Full Bench found that when deciding whether appellant was unfairly dismissed the Commission applied principles in orthodox manner and there was no arguable case of error – also no arguable case of error relating to Commission’s calculation of remedy, nor any other aspect of decision – Full Bench concluded appeal did not attract public interest after taking into account considerations in GlaxoSmithKline – not satisfied there was a diversity of decisions at first instance so that guidance from appellate body is required, nor that appeal raised issues of importance and/or general application – also not satisfied decision at first instance manifested injustice, or result was counterintuitive, nor that legal principles applied were disharmonious when compared with other decisions dealing with similar matters – permission to appeal refused. Appeal by Bigg against decision of Cambridge C of 22 November 2016 [[2016] FWC 8163] Re: NORTEC Employment & Training Limited
February 1, 2017
RIGHT OF ENTRY – dispute over right of entry – ss.505, 604 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance determined remedy sought by appellant in right of entry dispute was an exercise in judicial power beyond the Commission’s jurisdiction – in any event, before and after workers shifts was not ‘other breaks’ within the meaning of s.490 of FW Act – CFMEU officials had no right of entry at those times – grounds of appeal included the Commission erred in concluding the application was a request to exercise judicial power, failed to find the application was an exercise in the regulation of future rights and in the interpretation of the meaning of ‘other breaks’ – appeal raised an important jurisdictional issue – only matter in dispute was whether the reference to ‘other breaks’ included periods before and after employees’ shift start and finish times – determined this involved ascertaining legal rights and obligations created by s.490 – the ascertainment, declaration or enforcement of legal rights is the exercise of judicial power whereas opinions formed in the course of deciding what rights should exist in the future is an arbitral power conferred on the Commission [Ranger Uranium Case] – Full Bench satisfied the Commission was correct in his decision that he had no jurisdiction to consider the dispute – permission to appeal granted – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against decision of Williams C of 12 July 2016 [[2016] FWC 3829] Re: BHP Billiton Nickel West P/L
February 1, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Cormack Packaging MFG P/L Enterprise Agreement 2015-2018 – employees work either an 8 ordinary hour roster (known as 24/5) or a 12 hour roster (known as 24/7) – these rosters have been worked at least since 1 July 2011 under previous enterprise agreement – under the terms of the previous agreement and the current agreement, employees working the 24/7 roster had their wages paid as an ‘all-up’ or ‘loaded’ rate to incorporate payments for shift loadings and overtime or penalties – this rate became the base rate and was used to calculate the payments for other entitlements such as annual leave, personal/carer’s leave, public holidays and overtime – on 9 May 2016 the respondent advised its employees working on the 24/7 roster that they would have their payments for abovementioned entitlements changed from the established method of ‘loaded’ rate to base rate – respondent submitted that the change would be made as it had identified an administrative miscalculation with previous payments – applicant submitted respondent formed incorrect view of the appropriate meaning of ‘base rate of pay’ for employees on 24/7 roster – Commission held when the respondent’s employees were notified on 9 May 2016 of a change to be instituted from 6 June 2016 to the calculation of various entitlements, they were being notified of the proposed change from the basis on which those entitlements had been calculated since 2011 – the NES does not prohibit the payment of amounts greater than the base rate of pay pursuant to an agreement or otherwise – Commission found that the payment of the loaded rates of pay the subject of this dispute notification did not occur as a result of an administrative miscalculation – those amounts were paid because that was the agreement between the parties, acknowledged by the continued payment of that rate of pay from 2011 uninterrupted from one agreement to another until the correspondence of 9 May 2016 – Commission found the characterisation of these payments as having occurred as a result of an administrative miscalculation is an attempt to remake agreed terms acknowledged and confirmed by long practice. Australian Workers’ Union, The v Cormack Packaging MFG P/L
February 1, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed at Salvos Stores since May 2005 as casual shop assistant and shortly after promoted to Store Manager – no issues of misconduct until dismissed from employment in July 2016 – respondent alleged applicant stole money from a sale rather than putting the transaction through the register – s.387 FW Act considered – Commission discussed requirement to apply civil standard of proof, ie ‘the balance of probabilities’, however given serious nature of alleged misconduct the Commission must be careful not to rely on ‘inexact proofs, indefinite testimony, or indirect inferences’ [Briginshaw] – held respondent asked Commission to rely on indirect inferences in contrast to the applicant’s more plausible evidence – Commission satisfied no valid reason for dismissal and applicant not guilty of misconduct – Commission surprised as to alacrity with which the respondent accepted customer’s version of events over a long standing employee – found dismissal unjust and unreasonable – applicant did not seek reinstatement – payment for compensation reasonable in circumstances – Sprigg formula applied – Commission calculated compensation figure of $34,809 – compensation cap is $22,404.50 (half of applicant’s annual salary) – ordered compensation of $22,405.50, less tax. Walker v Salvation Army (NSW) Property Trust t/a The Salvation Army – Salvos Stores
