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
January 18, 2017
An application by the Country Fire Authority (s.240 – Application to deal with a bargaining dispute) will be heard by Commissioner Wilson in the Fair Work Commission 11 Exhibition Street Melbourne at 10am today.
January 18, 2017
Nineteen unfair dismissal/labour contract applications will be heard by the Fair Work Commission today. The full list is: Police Citizens Youth Club NSW Ltd (Nicholls), Staples Australia Pty Ltd (Rogers, Williams, Wu), Australian Federal Police (Hackett), Nobis Australia Pty Ltd (Kohler), Toll Ipec Pty Ltd (Scott), Steve Jarvin Motors Pty Ltd (Al-Khalil), Holcim (Australia) Pty Ltd (West), Alsco Pty Limited (Lakiss), Allianz Insurance Australia (Rogers), Coles Supermarkets (Price), Waterfind Australia (Sevilla), Green Mountain Food Processing (Abraham), TNT Australia Pty Ltd (Pryke), Fifty Five Trading Trust (Winnin), Red Spot Rentals Group Management Pty Ltd (Claymore-behan), Monadelphous Engineering Pty Ltd (Mirabella), Simon Transport Pty Ltd (O’Brien).
January 17, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application for Commission to deal with a dispute pursuant to the terms of the Peabody Energy Australia Coppabella Enterprise Agreement 2013 (the Agreement) – the Agreement provided for aggregated remuneration (termed Total Fixed Remuneration or TFR) based on continuous even time rosters and for review of remuneration when rosters were amended – whether methodology adopted by the applicant to disaggregate the TFR for the purposes of calculating remuneration following changes to rosters was appropriate – respondent did not accept methodology adopted by applicant and contended the Agreement prohibited applicant from adopting a methodology based on the Black Coal Industry Mining Award 2010 (the Award) – respondent contended that in adopting an Award based methodology the applicant was making an extra claim, contrary to the term of the Agreement – the Agreement did not provide a methodology by which a review of the base salary and/or roster allowances was to be conducted – applicant developed methodology – to review the TFR Commission found it necessary to deconstruct it – methodology proposed by respondent would have resulted in situation where all hours, regardless of when worked, would be paid at the same hourly rate – respondent’s approach inconsistent with the manner in which the TFR was originally constructed and with the contextual background in which it was developed – Commission did not accept respondent’s contention that applicant made extra claim contrary to the Agreement – methodology adopted by applicant consistent with the terms of the Agreement and intent of the parties – determination of issues in dispute not simply an interpretation of the Agreement – determination required exercise of Commission’s broad discretion and consideration of fairness – approached consideration of issues on basis that its’ role was not to place itself in the shoes of the parties but to objectively consider the matters having regard to the rights of employers to manage their businesses in a manner that promotes productivity and flexibility and the rights of employees to resist having an unfair, unreasonable, inflexible or unsafe outcome imposed on them [Bundaberg Sugar] – appropriate base ordinary hourly rate to be used for the purposes of the review methodology is the rate calculated with reference to the methodology proposed by applicant – half of the non-rostered overtime rate applied to calculated hours in accordance with the Award. Peabody Energy Australia Coal P/L t/a Peabody Energy Australia PCI Mine Management P/L v Construction, Forestry, Mining and Energy Union and Anor
January 17, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – modern awards divided into four groups for the purpose of the award stage of the 4 yearly review (Review) – initial conference for the 19 Group 2 awards held on 23 October 2014 – Group 2 awards further divided into sub-groups – conference held on 2 December 2014 to identify the variations sought to these awards – exposure drafts for Group 2 awards published in December 2014 – Group 2 exposure drafts amended and republished in accordance with decisions on general drafting and technical issues common to multiple exposure drafts – technical and drafting issues in the Group 2 awards, along with a number of changes sought by parties (other than substantive changes requiring extensive evidence) dealt with in this decision – each award under Review in Group 2 considered – further revised exposure drafts for Group 2 awards (incorporating the changes outlined in this decision and any determinations arising from the Annual leave and Award flexibility common issues proceedings) will be published in the week commencing 17 October 2016 – parties asked to provide feedback on the revised exposure drafts by 5.00 pm on Friday 18 November 2016 – feedback to be submitted in writing to [email protected] – Review is an iterative process and parties will continue to be given further opportunities to comment on revised exposure drafts and any further proposals to vary provisions in modern awards – review of each award not considered complete until the final determinations are issued for that award. 4 yearly review of modern awards-Group 2
January 17, 2017
ENTERPRISE AGREEMENTS – approval – ss.180, 185, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant contended Commission erred at first instance in concluding employer complied with s.180(2) of FW Act prior to employees voting – contended permission to appeal should be granted, appeal upheld and employer’s application be subject to rehearing – further contended requirements in ss.186 and 188 be reconsidered along with compliance with s.180(2) – appellant submitted first approval decision did not deal with policies of mine operators as well as labour hire company nor with failure to provide industry codes of practice – submitted reliance on undertaking an error and that it was for employer to satisfy that s.180(2) was complied with, not appellant having to satisfy that s.180(2) was not complied with – employer did not deny errors contended by appellant – submitted employees had access to documentation in variety of ways – McDonalds and NTEIU considered – Full Bench satisfied Commission erred in consideration of whether s.180(2) had been complied with – permission to appeal granted – additional factual matters emerged during appeal – Full Bench decided in public interest for Commissioner Spencer to rehear and reconsider requirements of ss.186 and 188 – allowed parties to adduce further evidence if necessary – once re-heard matter to be returned to Full Bench for further orders as may be necessary. Appeal by Construction, Forestry, Mining and Energy Union against decisions of Spencer C of 5 July 2016 [[2016] FWC 3100] and 6 July 2016 [[2016] FWCA 4528] Re: Sparta Mining Services P/L
January 17, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Milbrae Quarries P/L Enterprise Agreement 2013 – respondent made reduction in superannuation contributions as it had been paying superannuation on a 47 hour week rather than a 38 hour week – Agreement did not have term dealing with superannuation – applicant argued that respondent failed to discharge obligations under clause 9 (Workplace Consultation) and clause 27 (Consultation Regarding Major Workplace Change) and sought relief in form of reversal of reduction – respondent submitted that excess payments were a payroll mistake and not intention of employer to pay on 47 hour week – Commission found respondent not required to adhere to obligations under clauses 9 and 27 – Commission of view that correcting an error in overpayment of superannuation does not enliven clause 27 – provisions dealing with superannuation cannot be implied onto the Agreement – Commission does not have jurisdiction to grant relief sought – application dismissed. Transport Workers’ Union of Australia v Milbrae Quarries
January 17, 2017
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application for termination of enterprise agreement after nominal expiry date by employee – applicant sought termination of the Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011 (2011 Agreement) on basis that, if the 2011 Agreement was terminated, the General Retail Industry Award 2010 (Award) would be the applicable industrial instrument setting out her remuneration and entitlements – applicant stated, in relation to her particular roster, she would receive a greater total amount of remuneration for the rostered work under the Award – threshold issue – whether applicant met criteria for shiftworker under the Award – comparison between 2011 Agreement and Award – Award requires that an employee must be specifically employed as a shiftworker under the Award – working shifts that meet the definition of shiftwork not conclusive of specific employment as a shiftworker under the Award – applicant not specifically employed as a shiftworker – no clear likely effect of termination of 2011 Agreement upon the applicant being specifically employed as a shiftworker or a non-shiftworker under the Award – evidence should be brought that provides a comparison between both the designations (shiftworker and nonshiftworker) under the Award and the 2011 Agreement and the likely and preferred designation – matter will be listed for further Mention for the programming of Directions for the filing of material and hearing dates. Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011
