RIGHT OF ENTRY – misuse of system – ss.508, 587 Fair Work Act 2009 – application by respondent to dismiss substantive matter – respondent submitted proceedings are vexatious and an abuse of process because they are being conducted in a manner unfairly burdensome and productive of serious and unjustified harassment to all of the respondents to the substantive manner – the respondent also submitted that the proceedings are an abuse of process because they are doomed to fail owing to events that have occurred since their commencement and because of the circumstances known to the applicant – application to dismiss substantive matter arose because of additional material relied upon by the applicant – consideration of application to dismiss confined to additional material to which respondent objects – power to dismiss arises from s.587(1) FW Act – three categories of abuse of process from Rogers v The Queen relevant [LCR Group] – legislation concerned with substance and motive with which application is commenced and prosecuted – Commission not satisfied applicant’s reliance on additional material motivated by desire to harass or embarrass respondent, or that the attempt to rely on the material was frivolous or vexatious – Commission not satisfied of an abuse of process – Commission not persuaded substantive application should be dismissed – parties to be afforded an opportunity to be heard on admissibility of additional material – application to dismiss substantive matter dismissed. The Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and Ors
January 18, 2017
INDUSTRIAL ACTION – termination of protected industrial action – s.424 Fair Work Act 2009 – two applications made by the Minister for Industrial Relations for the State of Victoria (the Minister) that orders be made terminating protected industrial action notified by The Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Unions) against Esso Australia P/L (Esso) – industrial action notified by the Unions related to employees who would be covered by the proposed enterprise agreements to replace the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (the Gippsland Agreement) and the Esso Offshore Enterprise Agreement 2011 (the Offshore Agreement) – parties have been negotiating for over two years – intention was to take industrial action in the form of 24 consecutive one hour stoppages on the performance of all work by the employees commencing at 6:00am on 9 December 2016, and repeated from 6:00am on each day thereafter, until 6:00am on 1 March 2017 – applications were brought on the basis that the industrial action has threatened, is threatening, or would threaten to endanger the welfare of the population or a part of it and cause significant damage to the Australian economy or an important part of it – Commission satisfied that protected industrial action as described in the Notices was threatened, impending and probable – found industrial action would immediately threaten gas supply to each of the regions and industries currently supplied with gas through the Esso production facility – inevitable that that the protected industrial action threatened to endanger the welfare of the population in various regions of South East Australia – no doubt that the industrial action would cause significant damage to the Victorian economy and additional damage to other parts of South East Australia – termination of the protected industrial action will move the negotiating parties from the extended impasse in their negotiations to an alternative path of conciliation and arbitration – Commission decided to terminate the protected industrial action. Minister for Industrial Relations for the State of Victoria v Australian Workers’ Union, The and Ors
January 18, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – parties de-identified – on 14 July 2016 the applicant advised the respondent that he was leaving but did not provide any further explanation for his departure from work – respondent concluded that applicant had resigned his position – in an email to the applicant on 18 July 2016, the respondent confirmed it had concluded he had left their employment of his own volition – applicant submitted he had a panic attack at work on 14 July 2016 as a result of behaviour directed towards him by the respondent – further submitted this should not be viewed as a resignation because it was due to what he perceived as an immediate threat to his health and safety – Mohazab considered – Commission found the termination of the applicant’s employment was at the initiative of the employer on 18 July 2016 – found no valid reason for dismissal – dismissal considered unfair – reinstatement not appropriate – compensation of two week’s pay, less tax, but with commensurate superannuation payments ordered. Mr A v The Respondent
January 18, 2017
ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application for bargaining order – applicant alleged respondent had engaged in capricious or unfair conduct that undermined freedom of association and collective bargaining – respondent decided to implement operational changes that resulted in redundancies – enterprise bargaining taking place – reason for changes was delays caused by employees taking protected industrial action – whether redundancies in the circumstances breached respondent’s good faith bargaining obligations under s.228(1)(e) of FW Act – respondent submitted decision to restructure not connected to enterprise bargaining and therefore not unfair – submitted conduct was not conduct that undermined freedom of association or collective bargaining – construction of s.228(1)(e) – Commission found the legislation does not stop an employer from making changes to its operations while protected industrial action is taking place or in response to that action provided it is not for reasons or in a manner that is inconsistent with good faith bargaining requirements or other legislative provisions – conduct for the purposes of s.228(1)(e) must have the effect or likely effect of undermining collective bargaining – conduct that is simply unfair or capricious not sufficient – Commission found restructure proposal and decision to implement it not capricious or unfair – restructure not undertaken because of industrial action or to hinder employees’ right to take industrial action or bargaining position – cannot be held to undermine collective bargaining or freedom of association. Construction, Forestry, Mining and Energy Union v Anglo Coal (Capcoal Management) P/L t/a Capcoal
January 18, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – two enterprise agreements applied to work at prison project, the Entire Mechanical Services P/L and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2015-2019 (the Mechanical Services Agreement) and the Entire Fire Protection P/L and CEPU – Plumbing Division (Vic) Fire Protection Agreement 2015-2019 (the Fire Protection Agreement) – dispute resolution procedure in both agreements provided that decisions of Victorian Building Industry Disputes Panel (VBIDP) could be referred to Commission for review and Commission could exercise conciliation and/or arbitration powers – VBIDP decided on dispute over payment of employees for period of work stoppage – applicants referred decision for review by Commission – parties in dispute over scope of review – applicants submitted review would be hearing de novo – CEPU submitted review would be appeal – Commission previously held that review means hearing de novo [CDK Commercial Construction P/L] – agreements must be looked to for meaning of wording – relevant that parties did not use word ‘appeal’ – term ‘review’ not defined but meaning ascertainable from agreements – Commission satisfied parties intended rehearing – agreements provided for conciliation and empowered Commission to make formal binding determination after parties had been heard on ‘matters in dispute’ – nothing in language limited dispute to one about correctness of VBIDP’s decision – agreements also referred to Commission only having regard to materials put before it at hearing – language did not suggest Commission was limited to consideration of material before VBIDP subject to right to call new evidence – if parties had wished to limit Commission’s role they could have entered into agreements providing for such limitation and they did not – Commission invited parties to request conciliation – if no agreement regarding usefulness of conciliation, matter would be set down for hearing and determination. Entire Mechanical Services P/L and Anor v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
January 18, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – 457 visa – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a carpenter – contract of employment subject to 457 visa approval – 457 visa approved 13 September 2012 – during employment the applicant submitted he suffered some abuse as his supervisor tried to slap his face in 2015 and in November 2015 yelled at him after leaving work early and threatened to dismiss him – 457 visa set to expire 13 September 2016 – on 23 July 2016 applicant enquired as to whether his 457 visa would be extended – Commission satisfied neutral response was provided advising this was a decision for the respondent’s directors – respondent submitted directors did not intend to apply for an extension as no shortage of local carpenters – on 31 July 2016 respondent advised applicant via letter that it would not be making an application for extension of his visa and that they were terminating his employment that day with pay in lieu of notice to 1 August 2016 – applicant submitted he was dismissed for being more skilled than his supervisor and that he did not accept his poor treatment – Commission found no evidence applicant’s supervisor had any influence over or involvement in respondent’s decision to dismiss applicant – respondent submits that the reason for dismissal was that the respondent could not legally employ the applicant beyond 13 September 2016 when his visa expired – Commission found respondent had good reasons why this was neither necessary nor was it likely to be successful even if they had made such an application for an extension of his visa – found respondent was not required to apply for an extension of his visa – respondent had had no capacity to employ applicant after his visa expired – Commission found reason for dismissal was sound, defensible and well founded and thus was a valid reason for applicant’s dismissal – however Commission found no valid reason for early termination on 1 August 2016 – applicant could have remained employed until visa expiry on 13 September 2016 – respondent provided no explanation for reason for early termination – found premature ending of employment denied the applicant three weeks’ wages and only to that extent his dismissal was harsh – Commission satisfied applicant unfairly dismissed – reinstatement inappropriate – compensation appropriate – anticipated period of employment until expiration of visa on 13 September 2016 – order issued for payment three weeks wages. Austria v MCPBB P/L t/a Modern Joinery
January 18, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – two applications for relief from unfair dismissal – both applicants claimed they were dismissed by respondent – respondent claimed applicants abandoned employment – applicants were offered new contracts with reduced wages, neither of which was signed – applicants have limited English language skills – applicants informed through interpreter on 31 May 2016 that unless contract was signed they were not to attend work the following day – applicants have not attended work since – applicants claimed they were awaiting instructions from the respondent to return to work – respondent claimed to have posted letter on 7 June 2016 requesting the applicants to explain their absence and advised that if no explanation is received their absence will be considered as an act of termination of employment – Union representative sent email to respondent on 10 June 2016 seeking to reimburse applicant’s lost wages and advise when they can return to work – respondent responded that they would look into it – respondent sent second letter to applicants on 13 June 2016 requesting an explanation for their absence – applicants claim that had not received both letters – applicants became aware that their employment had terminated on 4 August 2016 while pursuing claims for lost wages against respondent in WAIRC – subsequently applicants made unfair dismissal applications on 18 August 2016 – Commission satisfied applicants were not aware that respondent had considered them to have abandoned employment – doubt as to whether letters and other correspondence were received by the applicants – satisfied that even if letters were received, applicants possessed limited English language skills to read and respond to – satisfied that applicant’s legal and union representative were not aware of the letters and that their client’s employment had been considered terminated – Nulty considered – Commission satisfied that only communication to applicants in Chinese was text of 31 May 2016 – found that even if dismissal took effect from 31 May 2016, respondent took no action to provide the applicants with their final wages or separation certificate – found it unusual that respondent ignored union representative and only advised applicant’s lawyer that they considered the applicants to have abandoned employment four weeks after receipt of application to the WAIRC – satisfied exceptional circumstances existed – extensions of time granted. Liang and Anor v H’VAR Steel services
January 18, 2017
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – two applications for protected action ballot orders in relation to certain employees – both applications heard together – whether unions have been, and are, genuinely trying to reach agreement with employer – employer objected on basis that unions not genuinely trying to reach agreement as refused to revise log of claims and pursuing non-permitted terms during bargaining – claimed that were previously genuinely trying to reach agreement but since 16 November 2016 have not – no dispute between parties otherwise – Commission satisfied on evidence in statutory declaration provided requirement for protected action ballot orders sought by unions met – whether unions have been, and are, genuinely trying to reach an agreement question of fact to be decided having regard to all of the facts and circumstances of the particular case [Esso Australia] – no specific stage must be reached in negotiations in order for there to be finding that unions are, and have been, genuinely trying to reach an agreement with employer [HJ Heinz Company Australia] – both sides put their bargaining positions to the other in November 2016 – significant gap between bargaining positions adopted by each party – Commission rejected employer’s contention unions not genuinely trying to reach agreement and protected action ballot order applications premature – evidence unions responded quickly to written communications with employer and requested counter offer to their log of claims – fact that unions did not comply with employer’s request to submit revised log of claims did not amount to not genuinely trying to reach agreement – employer claimed three out of nine claims made by unions about non-permitted matters – unions claim for incorporation of terms and conditions of Building Award – unions claim for casual employees to automatically become full-time after two weeks – unions claim for employees to be covered by Coverforce sickness, accident and top-up workers compensation insurance – employer did not identify any particular term or condition of Building Award which it contended was not about permitted matter, and second two claims found to pertain to relationship between employer and its employees – Commission found three claims not about non-permitted matters – even if contrary were to be found, Commission held unions would still be genuinely trying to reach agreement with employer as employer of employees who were to be balloted based on communications between parties – s.437 of FW Act satisfied – Commission must make protected action ballot order – orders issued. Australian Workers’ Union and Anor v Telum (QLD) P/L t/a Telum
