TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant required to travel with another employee in a council truck to perform their work – vehicle applicant was driving was involved in a collision – vehicle was impacted by a sedan that disobeyed a give way/stop sign – applicant directed to take a drug and alcohol test which returned a positive result – applicant notified of result the same day – suspended immediately with pay – applicant conceded he had used cannabis three days before accident – applicant advised urine sample would be sent for further analysis – disputed he was told sample would be sent for second or confirmatory test – further analysis determined positive result for cannabis – applicant dismissed on grounds of serious misconduct – respondent drug and alcohol policy demands a zero count for a drug analysis test – Commission found respondent had a valid reason for dismissal, however applicant was not provided with an opportunity to respond to the respondent’s reasons for dismissal – failure to give an employee dismissed for drug use an opportunity to respond to the reasons for termination would not have any bearing on the outcome of the disciplinary process [Hafer v Ensign Australia] – in circumstances where a dismissal for misconduct has been found to be justified, it will be rare for a defect in an internal disciplinary process preceding the dismissal to justify a conclusion that the dismissal was harsh, unjust or unreasonable [Farquharson v Qantas Airways Ltd] – Commission held that even if respondent formally put result to the applicant, and that such should lead to his dismissal, no explanation from applicant would alter the outcome of the matter – found seriousness of applicant’s actions outweighed the procedural faults of the respondent – found applicant not unfairly dismissed – application dismissed. Albert v Alice Springs Town Council
January 24, 2017
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – respondent not yet agreed to bargain or initiated bargaining for agreement proposed by NUW – Commission satisfied majority of workers wished to bargain five months in advance of nominal expiry date of agreement – decided to conduct ballot to determine majority or not – employer provided notice – Commission requested that particular sentences in notice be replaced – Commission concerned that current wording would discourage employees from participating in vote which would be contrary to the decision of the Commission to seek views of employees – respondent rejected request to make changes – disagreed there were errors in notice – Commission proposed to issue a direction for the issue of the notice in the form proposed – if respondent persisted with proposal, Commission proposed to issue further directions to allow applicant opportunity to respond to material circulated by the company as part of procedures directed by the Commission – matter listed for hearing – respondent did not attend hearing – actions of company in publishing partisan notice discouraged employees from voting ‘yes’ – Commission doubted that ballot would be appropriate and effective method for determining question – issued that respondent reissue notice with the following amendments ‘This notice replaces earlier notices concerning the vote. This notice is issued at the direction of the Fair Work Commission’ – NUW to provide Commission with text of the notice instead – respondent able to provide comments – Commission will advise respondent on distribution of notice. National Union of Workers v Coldunit P/L
January 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Product Handler – performed two unsafe forklift manoeuvres on 3 December 2015 which resulted in incident forms and a subsequent formal meeting – also knocked a pallet of cornice off the truck when unloading pallets on 18 December 2015 where he nearly hit the truck jockey – on two occasions applicant was also found not wearing his safety glasses in contravention of work site PPE regulations – Commission found alleged incidents occurred and were in breach of policies that the applicant either knew or should have known – found failure to display contrition for breaches, or acknowledge the seriousness of incidents, led to a valid reason for termination – termination not harsh, unjust or unreasonable – applicant was warned that repeated breaches of safety could result in termination – found dismissal was not disproportionate to the gravity of the misconduct – application dismissed. Palmer v USG Boral Building Products P/L
January 24, 2017
ENTERPRISE AGREEMENTS – approval – valid vote – s.185 Fair Work Act 2009 – application by Stramit Corporation P/L t/a Stramit Building Products to approve single enterprise agreement – three employees did not vote in secret ballot – employer called the employees to ask which way they were going to vote – Commission satisfied that the three votes may well have affected the outcome of the ballot – unlikely that a vote which is exercised contrary to the notice of the time and place at which the vote will occur, and the voting method which will be used, can be regarded as a valid vote – held the three votes exercised were directly contrary to the notified secret ballot method, time limits and locations – Commission not satisfied s.182(1) of FW Act met – not satisfied Agreement genuinely agreed to by employees – application dismissed. Stramit Building Products Maddington Enterprise Agreement 2016
January 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application for dispute under CBH Kwinana Plant Operators Collective Union Agreement 2013 – applicant alleged respondent did not comply with consultation about change clause in enterprise agreement when engaging 11 additional casual employees as plant operators – casuals employed for peak harvest period – applicant also sought status quo remain until dispute resolved ie additional casuals employment to be on hold – applicant argued employment of additional casuals would reduce opportunity for existing employees to work overtime and full time hours – respondent contended employment of casuals is part of ordinary course of business not a workplace change – respondent had historically always recruited casual employees without consulting existing employees – Commission did not issue interim orders as applicant could not prove an arguable case – applicant would not suffer prejudice that cannot be remedied by damages – did not prove on balance of convenience favours making the orders sought – orders sought go beyond the scope of the dispute – Commission considered original employees cannot be required to work additional hours – employees’ acceptance of hours is voluntary – employees restricted in working additional hours due to fatigue management policy – Commission determined consequences of issuing orders weighs more against respondent – no decision made with respect to status quo provision – interim orders not issued. The Maritime Union of Australia v Co-operative Bulk Handling Ltd t/a CBH Group
January 24, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by the Western Australian Branch of the Maritime Union of Australia for a right of entry permit for Secretary, Mr Cain – in interim decision of 21 November 2016 Commission gave union further opportunity to provide evidence addressing concerns [[2016] FWC 8230] – Mr Cain showed he would actively discourage future unprotected industrial action – he confirmed absence of ‘closed shop’ arrangements and that no such arrangements would be supported in future – he recognised that employees may elect to work during periods of protected industrial action without fear of retribution – Commission satisfied that additional evidence and absence of relevant matters since 2012 Chevron matter rendered Mr Cain a fit and proper person to hold an entry permit – Commission did not impose conditions on permit – Mr Cain had comprehensive knowledge of FW Act obligations so additional training unnecessary – breach of Mr Cain’s undertakings would make it difficult for him to be regarded as fit and proper person to hold entry permit in future – Commission ordered that entry permit be issued. Maritime Union of Australia, The Western Australian Branch
January 24, 2017
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – application for a protected action ballot order (PABO) – respondent opposed application – submitted that applicant was not genuinely trying to reach agreement and that application was premature – considered JJ Richards & Sons – whether applicant genuinely trying to reach agreement a question of fact to be decided having regard to all of the facts and circumstances of the particular case [Esso] – no specific stage of negotiations must be reached in order to find that the applicant is genuinely trying to reach agreement [H J Heinz] – Commission satisfied that applicant genuinely trying to reach agreement – respondent submitted that the PABO questions should be amended due to work health and safety considerations and longer period for notice requirements for industrial action – Commission not persuaded that exceptional circumstances existed to warrant the extension of the minimum period of written notice prescribed by the FW Act – Commission noted that PABO questions must be precise so employees are able to make educated choice about how to vote in the PABO – Commission satisfied as to matters set out in s.437(1) – application granted. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Grange Resources (Tasmania) P/L
January 24, 2017
CASE PROCEDURES – evidence – production of documents – s.512 Fair Work Act 2009 – application for orders for the production of documents – application by the CEPU for a right of entry permit for Mr James Metcher – Minister for Employment granted leave to intervene on a general basis – Australian Government Solicitor made application for four orders to be served on the Commissioner of Police, New South Wales Police Force; the Australian Postal Corporation; the proper officer of the divisional branch of the CEPU; and Mr Metcher – Commission has power under s.590(2) of FW Act to inform itself – approach of Commission in Clermont Coal considered and adopted – satisfied that general and broad power to order production of documents should be exercised – material sought is clearly relevant and necessary for fair determination of matter – orders issued. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Communications Division New South Wales Postal and Telecommunications Branch
