INDUSTRIAL ACTION – order against industrial action – ss.418, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission made an order in relation to alleged unprotected industrial action taken by employees of Delta Coal Mining P/L (Delta Coal) engaged at the Appin mine site in New South Wales operated by South32 Ltd – grounds for appeal included that Commission erred in making the order in circumstances where he could not be satisfied that there were current employees of Delta Coal at the South32’s Appin coal mine taking industrial action at the time the order was made; that the Commission erred in making the order by taking into account extraneous or irrelevant matters, mistaking the facts and not taking into account material considerations in finding that he was satisfied that current employees of Delta Coal at the Appin mine were taking industrial action at the time the order was made; and that the order was not valid because it exceeded the power available under s.418 of the FW Act to make an order – on 20 December clause 3.2 of the Order was stayed pending the hearing and determination of the appeal [PR588831] – Full Bench not satisfied the Commission made any error of the requisite kind in finding that there was a continuing employment relationship between Delta Coal and the employees at the Appin coal mine – however Full Bench satisfied that the Order made at first instance was in certain respects beyond power – Full Bench grant permission to appeal the Order on this basis only and will vary it so as to bring it within the Commission’s jurisdiction – MUA v Patrick Stevedores considered – alleged lack of specificity in the Order – definition of ‘Industrial Action’ restricted – clause 3.2 of the Order deleted – at clause 3.3 obligations are imposed being that the CFMEU its officers, employees, agents and delegates and the employees to immediately stop organising and refrain from organising any industrial action involving any of the employees – at clause 3.3(b) of the Order the CFMEU its officers, employees, agents and delegates and the employees must additionally not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any employee to engage in industrial action and not facilitate any industrial action by any employee – found detail is unnecessary – additional obligations removed in the absence of any demonstrated necessity for their inclusion – Full Bench quashed those clauses of the Order that were found to be beyond power and issued an amended Order. Appeal by Construction, Forestry, Mining and Energy Union against order of Sams DP of 16 December 2016 [PR588682] Re: Delta Coal Mining P/L
January 24, 2017
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application by respondent for costs – respondent alleged applicant acted unreasonably in continuing to deny conduct proven by evidence of witnesses and refusing settlement offers – applicant’s position was that he was seeking to clear his name and sought reinstatement – Commission found dismissing an application was not a foundation for awarding costs – not satisfied it was initially apparent to applicant that his case was groundless – found that applicant should pay costs from the time of his refusal of the second settlement offer, when it was reasonably apparent his case had no reasonable prospect of success, to the conclusion of the merits hearing – parties ordered to agree on amount and payment method. Applicant v Respondent
January 24, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged 11 months and 7 days outside the statutory 21 day time limit – reasons provided for delay were misleading legal advice, conduct of others, psychological and financial impacts, juggling two jobs and partner’s miscarriage – Nulty considered – while sympathetic to these circumstances the Commission found the applicant’s reasons for delay were not ‘exceptional circumstances’ to warrant granting an extension of time – extension of time refused. Costelloe v Origin Energy Resources Limited t/a Origin Energy
January 24, 2017
TERMINATION OF EMPLOYMENT – demotion – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant demoted from position as site manager due to failure to follow company policies – inability to communicate and inability to fulfil requirements of position – provided with new employment contract – applicant refused to accept demotion – alleged demotion constituted dismissal – alternatively alleged constructive dismissal by respondent – respondent submitted demotion did not result in dismissal because employment contract permitted demotion – submitted resignation voluntary – Commission considered applicant claiming forced resignation must show they had no real choice but resignation [Mohazab] – demotion of an employee, where that demotion is provided for in contract of employment or industrial instrument, cannot constitute, by itself, a dismissal [Moyle], [Singh] – while applicant’s demotion involved significant reduction in remuneration or duties for purposes of s.386(2)(c)(i) of FW Act, this section is an exception to general definition of dismissal in s.386(1) and will not apply if demotion is provided for in employment contract – necessary to consider s.386(1) – Commission found no intention to dismiss by respondent – respondent did not end employment relationship as it demoted applicant pursuant to employment contract – contract provided there was demotion in relation to performance – no repudiation of contract by respondent – found applicant resigned – Commission satisfied allegations against applicant substantiated and respondent’s investigation process satisfactory – applicant not forced to resign – resignation did not satisfy requirements of s.386(1)(b) – applicant not dismissed – application dismissed. Carter v MSS Security P/L
January 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant had financial difficulties that led to depression and being certified unfit for work – unable to secure accommodation for family in Port Hedland – required support of family – respondent granted applicant discretionary leave which allowed temporary relocation to Perth as applicant had claimed investment property in Port Hedland was subject of a long term formal lease – applicant said that wife and children relocated to Perth so that children could undertake schooling in Perth – claimed that wife planned to return to live in Port Hedland when youngest child completed education – this differed from the information the applicant previously provided to respondent and to a medical practitioner assessing fitness to work that family moved to Perth because the family home was sold as a result of financial difficulties being experienced – had purchased the family home from the company under the Housing Ownership Scheme – company claimed to also uncover fraudulent claims for Annual Leave Travel Assistance – claimed applicant provided misleading information about own and family’s residential options and improperly claimed electricity subsidies – even if investment property was the principle place of residence for purposes of accessing electricity subsidies, not entitled to claim such subsidies for periods in which absent from Port Hedland – terminated employment – applicant admitted wife preferred schooling available in Perth and not forced to sell home due to financial difficulties – applicant obtained a benefit that would not have otherwise obtained – satisfied that conduct provided valid reason for dismissal – severely damaged respondent’s trust and confidence – applicant admitted to wilfully and knowingly obtaining benefits by deceit – Commission satisfied dismissal was not harsh, unjust or unreasonable – application dismissed. Adeley v BHP Billiton Iron Ore P/L
January 24, 2017
RIGHT OF ENTRY – application for permit – conditions – ss.512, 515 Fair Work Act 2009 – application for entry permit for Mr Michael Haire – Mr Haire has been employed as an organiser by the Queensland and Northern Territory Divisional Branch of the CEPU since September 2010 – based in Cairns, his area of responsibility is far North Queensland – in May 2016 the Federal Court issued its judgement in Robinson – the Federal Court found that during the course of the dispute three union officials, including Mr Haire, organised industrial action by employees of Laing O’Rourke Construction Australia P/L during the term of an enterprise agreement, in breach of s.417 of the FW Act – the Federal Court imposed a penalty of $6,700 on Mr Haire and $35,500 on the CEPU in relation to Mr Haire’s conduct – in June 2016 the Director of the Fair Work Building Industry Inspectorate (the Director) applied to the Commission under s.507(1)(a) for a condition to be imposed on Mr Haire’s entry permit – on 5 July 2016 Watson VP ordered that ‘a three month suspension be imposed, but that suspension be suspended’ – a matter of days after Watson VP’s order was issued, Simpson C issued his decision in JKC [[2016] FWC 536] – decision concerned an application for orders pursuant to s.505 against six respondents, including the CEPU and Mr Haire – application stemmed from a dispute that initially arose from a right of entry exercised by Mr Haire and two other officials – conduct of Mr Haire was inconsistent with his obligations under ss.491, 492 and 492A – Simpson C decided not to issue any orders – Mr Haire submitted that his entry permit should be renewed with the balance of the condition imposed by Watson VP ‘rolled over’ so that the ‘suspended suspension’ would remain in place for 12 months from the date that it was issued (5 July 2016) – role of Commission in matters such as this is concerned with the future conduct of the permit holder rather than punishing him or her for past misconduct – In the absence of Simpson C’s decision in JKC the Commission would have been content to ‘roll over’ the condition imposed by Watson VP with an expiry date of 5 July 2017 – Commission satisfied that Mr Haire’s permit should be renewed, but that a condition should be imposed – with the imposition of the condition, and having regard to all the permit qualification matters, Commission satisfied that Mr Haire was a fit and proper person to hold an entry permit. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – Queensland and Northern Territory Divisional Branch
January 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision of Commission that Coles had the ability to unilaterally decline to increase the base wage rate value it used in its Incentive Scheme calculations in line with the negotiated wage increases in the Coles Kewdale Distribution Centre WA Agreement 2014 – Commission held that Coles did not revise form and structure of the Scheme – clause 20.8.2 of Agreement permits the Commission to grant leave to appeal if matter of such importance that leave should be granted – leave to appeal granted given history of clause 10 of Agreement, Incentive Scheme and potential impact of the decision of Coles on the employees – Full Bench held that the words ‘form and structure’ in clause 10 have a plain and ordinary meaning – ‘form’ refers to shape or appearance of Scheme and ‘structure’ refers to constituent parts or inputs arranged together to compose the Scheme – determined that structure is comprised of two inputs, performance percentage and monetary value, both variable – no evidence that the monetary value input was anything other than the amount of an employee’s prevailing base wage – variable nature of performance measurement tools was an inherent feature of Scheme – held that Coles’ decision to change monetary value input from a variable amount to a permanently fixed amount amounted to a revision of the structure of the Scheme and therefore prior consultation with team members was required before change effected – not contested that consultation did not occur – Full Bench consider that Commission erroneously concluded that the decision announced by Coles on 4 May 2015 was not a revision to the form and structure of the Incentive Scheme contrary to clause 10 of Agreement – appeal upheld – decision at first instance quashed. Appeal by Hutchings against decision of Bull DP of 29 July 2016 [[2016] FWC 4050]Re: Coles Group Supply Chain P/L t/a Coles Kewdale Distribution Centre
January 24, 2017
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application by AGL Loy Yang P/L for termination of the Loy Yang Power Enterprise Agreement 2012 – nominal expiry date of Agreement was 31 December 2015 – application was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Trades Union of Victoria branch) (ETU) and the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) – Agreement covers about 578 employees at the Loy Yang A Power Station (Station) and adjacent open cut brown coal Loy Yang Mine (Mine) at Traralgon in Victoria – AGL Loy Yang cited a range of provisions in the Agreement it claims unduly restricts its ability to make changes to its operations to increase productivity and reduce inefficiencies – Loy Yang commenced negotiations for a new agreement with Unions in July 2015 – in April 2016 AGL Loy Yang filed a bargaining dispute application under s.240 of FW Act, followed almost immediately by the CFMEU’s application under s.229 for bargaining orders – s.240 process is ongoing – Commission declined to make the orders sought by the CFMEU [[2016] FWC 3376] – in May 2016 the CFMEU made application for a protected action ballot order (PABO) under s.437 – application dismissed because Commission not satisfied at that time that the CFMEU had been or was genuinely trying to reach agreement [[2016] FWC 4364] – appeal by CFMEU about decision dismissed by Full Bench [[2016] FWCFB 6332] – in September 2016 the CFMEU made further application for a PABO under s.437 – application was heard, determined and granted by Commission [[2016] FWC 7839] – AGL Loy Yang has stated it will continue to bargain in good faith for a new agreement in the event the Agreement is terminated – for a period of three months following the termination AGL Loy Yang will maintain certain conditions from the Agreement it says are significantly more beneficial than the Electrical Power Industry Award 2010 minimum terms and conditions – Commission must terminate the Agreement if satisfied that it is not contrary to the public interest to do so and consider it appropriate to do so taking into account all the circumstances, including the views of the employees, AGL Loy Yang, the CFMEU and the other Unions and their circumstances, including the likely effect the termination will have on each of them – Aurizon adopted – Kellogg applied – Commission satisfied it was not contrary to the public interest to terminate the Agreement – satisfied that the dispute is intractable as things currently stand – Commission persuaded that a change in the status quo through the termination of the Agreement will better support good faith bargaining for a new agreement that delivers productivity benefits – termination of the Agreement will change the bargaining dynamic but this is not counter to the object of a fair framework for collective bargaining and facilitating good faith bargaining [Aurizon] – Commission accepted there was opposition to the termination of the Agreement from the Employees – found this was not insignificant and their concern at the prospect of diminished terms and conditions of employment compared to the ones they currently enjoy was understandable – after taking into account all the circumstances Commission found it was appropriate to terminate the Agreement – termination will take effect on and from 30 January 2017. Loy Yang Power Enterprise Agreement 2012
