Less than two dozen unfair dismissal/labour dispute cases will be heard by the Fair Work Commission today. The list is: Windoware Pty Ltd (Dayman), Sodexo Remote Sites Australia Pty Ltd (Dehncke), Broadspectrum (Australia) Pty Ltd (Bishop), O’Brien Glass Industries Limited (Bostock), Cement Australia (Hursh), The University of Queensland (Smith, Lang), Brisbane Customs Brokers (Roza), Golden Casket Lottery Corporation (Coleman), Shaver Shop Pty Ltd (Finocchiaro), Metropolitan Fire and Emergency Services Board (Stojanovska), Brotherhood of St Laurence (Noisette), Australia and New Zealand Banking Group Limited (Wicks), Melbourne Health (Bailey), Dykes Bros Pty Ltd (Changezi, Nayeb), IP Australia (Huber), Coles Supermarket Australia Pty Ltd (Jennings), Bellingen Shire Council (O’Brien), Asciano Services Pty Ltd (Coad), Woolworths Limited (Fitzgerald), Insurance Australia Group (Tarasenko), Rodney Stevens Acoustics & Stevens (Page), Coles Supermarket Australia Pty Ltd (Jennings).
January 24, 2017
Mr Jose Midon has been refused additional time to pursue an unfair dismissal assertion against JD Taylor Family Trust T/A ITS Management.
January 24, 2017
Jodie Wilson has been told she cannot succeed in getting her unfair dismissal claim against Wet Seal Management up because she lodged her claim 10 days late.
January 24, 2017
Nikhil Challa has not been able to convince the full bench of the Fair Work Commission that his pursuit of the Australia and New Zealand Banking Group Ltd t/a ANZ Bank is in the public interest.
January 24, 2017
Thirty two unfair dismissal/labour contract dispute applicants will run their claims before the Fair Work Commission today. The list is: Frankipile Australia Pty Ltd (Childs), STO Property Maintenance (McEwan), Uniting Care Wesley Bowden (Contreras), SA Synod of the Uniting Church Australia (Nippress), Viterra Operations Pty Ltd (Shearing), Auto Parts Group Pty Ltd (Stark), Flora Downs Station – Mt Isa. Tewinga Pasotral Holdings Pty Ltd (Walden), The Nuance Group, Dufry Company (Wong), Toll Transport Pty Ltd (Pavano), I Sec Security (Ibrahim), Darwin Aboriginal Islander Women Shelter (Hampton), Quest Echuca (Neville), Cape Preston Port Company Pty Ltd (Newman), Floorstones Franchising Pty Ltd (Trew), Serco Australia Pty Ltd (McQueen), Australasian Mail Services Pty Ltd (Sikder), United Arab Emirates Embassy (Allam), Community Services #1 Incorporated (Robertson), Springmount Services P/L (Miller), Screenwise Pty Ltd (Woodley), Quad Partnership (Cohen), Sydney Trains (Dhillon), Harbour Roof Tiling Pty Ltd (Raza), Max Solutions Pty Ltd (Walters), Harbour Roof Tiling Pty Ltd (Raza), Centrepoint Alliance (Pham), Regis Aged Care Pty Ltd (Sharma), St Vincent’s Hospital Sydney Ltd (Grygiel), Pormpur Paanthu Aboriginal Corporation (Tan), Ventec Australia Pty Ltd (Picot), Midal Cable International P/L (Gango) Forster-Tuncurry Memorial Services Club Ltd (Bennett).
January 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – Commission granted extension of time for Broadspectrum to lodge appeal – at first instance the Commission found it had had jurisdiction to arbitrate a dispute between Mr Crawford and Broadspectrum Australia P/L under the Transfield Services Limited (Maintenance Services – Wyee) Collective Agreement 2011 – 2015 where Mr Crawford was no longer an employee of Broadspectrum – also found Mr Crawford not entitled to overtime for training attended during overtime hours – the Construction, Forestry, Mining and Energy Union (CFMEU) and Broadspectrum lodged respective appeals against parts of the decision at first instance – Broadspectrum’s appeal concerned Commission’s jurisdiction to arbitrate the dispute – at first instance Commissioner decided Commission had jurisdiction to hear dispute [Jajoo], notwithstanding Mr Crawford was no longer an employee of Broadspectrum – Full Bench of the view that Broadspectrum’s submissions concerning the Commission’s jurisdiction raised important questions pertaining to rights arising from enterprise agreements – on this basis permission to appeal with respect to the dispute over jurisdiction was granted – whether, pursuant to s.739 of FW Act, the Commission has the jurisdiction to deal with a dispute concerning a former employee – if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated [Jajoo, Wollongong] – Full Bench do not need to adhere to precedent of Jajoo and Wollongong – should only depart from precent if persuaded sufficient reason to do so – Full Bench not persuaded findings in Patrick Projects and Kentz there was sufficient reason to depart from Jajoo and Wollongong – not persuaded Commission erred in its jurisdiction when finding dispute was to be arbitrated by the Commission – found terms of Agreement did not oust the jurisdiction of the Commission to deal with the dispute – satisfied Commission has jurisdiction to deal with dispute – CFMEU’s appeal regarding whether compulsory training is to be deemed ‘work’ within the meaning of Agreement and whether Mr Crawford entitled to overtime pay – Agreement provides that overtime rates will be paid for ‘work’ that is performed outside ordinary hours – if training constitutes ‘work’ then training in overtime attracts overtime pay – at first instance Commission found that training was not ‘work’ and that training conducted outside of ordinary hours did not attract overtime pay – whether the Commission erred in finding that training was not ‘work’ for the purposes of the Agreement – Full Bench believed appeal raised important questions of construction and interpretation of Agreement – held dispute matter of public interest – permission to appeal granted – grounds of appeal included that the Agreement contained no definition of ‘work’ or ‘training’ which created ambiguity; and that the decisions relied on by the Commission turned upon their own facts which were distinguishable to those before the Commission at first instance – Full Bench found that Excelior was distinguishable to the present case – Golden Cockerel considered – Full Bench considered an employee who attends training at the direction of his or her employer outside of ordinary hours is carrying out ‘work’ and is entitled to overtime remuneration – appeal upheld – decision at first instance quashed – held Mr Crawford is entitled to overtime remuneration for the training that he undertook outside of ordinary hours. Appeal by Construction, Forestry, Mining and Energy Union against decision in transcript of Saunders C of 2 September 2016 Re: Broadspectrum Australia P/L
January 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appellant employed as Locomotive Driver – passed signal at red and was subject to disciplinary action by respondent – appellant lodged application for Commission to deal with dispute arising under the Aurizon (Western Australia) Rail Operations Enterprise Agreement 2014 (Agreement) disputing nature and extent of the disciplinary action – Commission at first instance held any determination that would reverse or alter disciplinary action taken would be inconsistent with the Agreement and s.739(5) of the FW Act – appellant contended Commission’s construction of s.739(5) was erroneous and the provision did not oust the Commission’s jurisdiction to deal with disputes – Commission will grant permission to appeal only if it is in the public interest to do so – GlaxosmithKline applied – Full Bench satisfied appeal raised important questions concerning application of s.739(5) – permission to appeal granted – s.739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement [Endeavour Energy] – held provision did not limit Commission’s jurisdiction in dealing with a dispute about the terms of an agreement but may impact on the nature of remedy – found Commission at first instance had jurisdiction to deal with dispute – appeal upheld – first instance decision quashed – matter remitted to Williams C for determination. Appeal by Lloyd against decision of Williams C of 12 August 2016 [[2016] FWC 5568] Re: Australia Western Railroad P/L t/a ARG an Aurizon Company
January 24, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment of employment – ss.136, 137, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission dismissed appellant’s unfair dismissal application – found appellant had abandoned his employment – grounds for appeal that Commission misapplied clause 21 of Manufacturing Award in concluding award operated to automatically terminate employment – submitted clause 21 not a permitted or required term of modern award – that contrary to s.136 FW Act and by reason of s.137, term has no effect – also submitted term objectionable because it required or permitted dismissal in contravention of s.352 – Full Bench persuaded appellant made out case of error on at least one of the bases underpinning first ground of appeal – held error of the type described in House v The King in that decision-maker acted on wrong principle – permission to appeal granted – clause 21 did not have effect of automatically terminating employment – an employee deemed to have abandoned employment within meaning of clause 21 does not mean employee’s employment was thereby at an end – employer must take additional step of terminating employment – employment continues if it does not do so – employment did not come to an end by operation of statute [Mahoney] – no automatic termination of appellant’s employment under clause 21 – conduct of employer reinforced fact that termination occurred on employer’s initiative – even if clause 21 operated in manner determined by Commission, it had no effect because clause 21 was neither permitted nor a required term of a modern award – term had no effect by virtue of s.137 – Full Bench did not accept submission of employer that term was ancillary or incidental to operation or Division 11 or that it supplemented national employment standards, pursuant to s.55(4) – provision in award which would operate to automatically terminate employment cannot reasonably be described as ancillary or incidental to operation of a provision which deals with obligations of an employer when employer seeks to terminate employee’s employment – found termination at employer’s initiative – jurisdictional objection of employer dismissed – appeal upheld – application remitted to O’Callaghan SDP for hearing and determination. Appeal by Bienias against decision of O’Callaghan SDP of 17 October 2016 [[2016] FWC 6624] re: Iplex Pipelines Australian P/L t/a Iplex Pipelines Australia
