ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014 – issue for determination is interpretation of wording found in clause 22.1 Personal Leave and subclause 22.1.2 of the Agreement ‘In the second and subsequent years, the leave shall be credited in advance on each anniversary date of the commencement of employment’ – whether wording of subclause 22.1.2 provides employees with an entitlement to 10 days paid personal leave on the anniversary of the commencement of their second and subsequent years of employment without deduction or adjustment on account of having been granted a period of unpaid leave during the preceding 12 month period – dispute arose when email was sent by the respondent’s Human Resources Manager to NUW – email advised that employees do not accrue any entitlements where unpaid leave of one week or more is taken – applicant submitted that this would allow for a negative personal balance to be recorded where an employee has exhausted their personal leave credited in advance and the employee has taken a period of unpaid leave – further submitted that periods of unpaid leave cannot create a negative personal leave balance as there is no caveat on the entitlement to the crediting of 10 days personal leave on each anniversary date following completion of the first year of employment – respondent submitted that the plain reading of the relevant subclause can only result in the conclusion that where an employee takes a period of unpaid leave, irrespective of the year of service, they do not accrue personal leave and where it is provided for in advance an adjustment must be made to account for the non-accrual of personal leave during a period of unpaid leave – wording of subclause provides no entitlement to accrual of paid personal leave when employee is on unpaid leave – crediting in advance of the annual entitlement of 10 days is still dependent upon 12 months service – Golden Cockerel considered – words are to be read as a whole and in context – Commission unable to accept that crediting of personal leave in advance in second and subsequent years of employment altered the basis upon which entitlement to the leave is provided – interpretation not supported by any evidence of an intended additional benefit provided by employer – when considering the wording in the Agreement in its entirety, the reference to ‘service’ having to be undertaken to accrue personal leave is not disturbed simply because the entitlement is provided in advance – unpaid leave is not service as per the Agreement – Commission does not consider the disputed wording provides the benefit claimed by the NUW – second paragraph in subclause 22.1.2 could benefit from improved drafting – application dismissed. National Union of Workers v Coles Group Supply Chain P/L
January 11, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant claimed not dismissed within the meaning of s.386 of the FW Act because employment was not terminated at the employer’s initiative – applicant worked as Hand Signaller – found to have breached work safety policies during a shift – put on a ‘Return to Work Plan’ where confined to lower grade duties for two months – applicant also intended to pursue payment of Long Service Leave (LSL) – respondent claimed that applicant was not dismissed and remained in the pool of casual available employees – there was no work to offer applicant on the lower grade assigned to, for two months – not confident in the quality of work due to previous non-compliance – applicant provided with regular and systematic employment for almost eight years and had reasonable expectation of continuing employment – Gilda CohenShapira v The Scots College considered – must be demonstrated that termination was evident in respondent’s conduct – Commission satisfied applicant was dismissed at initiative of employer, however it was never communicated to applicant – dismissal does not take effect unless it is communicated to the employee being dismissed – application lodged 98 days out of time – applicant’s reason for delay in filing unfair dismissal application was choosing to pursue LSL application instead – delay not due to exceptional circumstances – applicant’s representative and applicant were aware of ability to lodge unfair dismissal however plainly chose not to do so in favour of another dispute – Commission not satisfied of exceptional circumstances warranting the applicant being allowed a further period for application to be made – extension of time refused. Whybrow v Swetha International P/L
January 11, 2017
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application seeking that the Commission make a determination that a majority of storage services employees who work at the Coldunit site, operated by Oxford Cold Storage, who will be covered by a proposed singleenterprise agreement, want to bargain with the employer that will be covered by the proposed enterprise agreement – current agreement expires in May 2017 – Coldunit does not wish to bargain at this time – provided majority of employees who will be covered wish to bargain Commission considered it reasonable to make a determination in support five months in advance of nominal expiry date – NUW petition did not establish a majority but was close to a majority – propose the conduct of a ballot on 13 January 2017 – Coldunit to make any comments on proposed course of action by 21 December 2016 – following ballot, further decision to be issued and if there is a majority, the determination. National Union of Workers v Coldunit P/L
January 11, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant employed as Deputy Director of Office of Research and Innovation from March 2013 – in October 2015 department restructured and applicant’s position declared excess – applicant engaged in redeployment processes however not successful in being placed elsewhere – applicant dismissed by reason of redundancy on 29 April 2016 – applicant submitted dismissal unfair as only offered one role at a lower level and for a fixed term rather than on an ongoing basis – Ulan Coal Mines Ltd v Honeysett considered – to require a redeployee to engage in a competitive selection process might lead to a conclusion that the redundancy is not genuine – Commission satisfied no position available for applicant at the time of dismissal – satisfied university no longer required applicant’s job to be performed by anyone – satisfied dismissal was a genuine redundancy – application dismissed. Scholz v Charles Darwin University
January 11, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed for just over 11 months as a Mental Health Practitioner – respondent dismissed applicant for alleged serious misconduct – claimed applicant intentionally falsified time recordings for services provided – alleged that inflated service hours were being reported in order to improve applicant’s KPIs – Commission satisfied of three instances where applicant recording of times involved significant inflation – these instances taken together were misconduct, – however not satisfied that these were instances of deliberate falsification – conduct was negligent not dishonest – satisfied that applicant misconduct constituted valid reason for dismissal – found procedures used to carry out dismissal were fair and reasonable – application dismissed. Massaquoi v Break Thru People Solutions
January 11, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.385, 386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a Family Worker – submitted she was subject to harassment and bullying by a co-worker and she had to resign to avoid further deterioration in her mental health and well-being – respondent received complaints by the co-worker about applicant, and had issued formal and informal warnings to applicant regarding her performance and conduct at work – conduct included limiting her hours without authorisation – applicant was requested to attend meeting to discuss limitation of hours – in response to request, applicant resigned – even if bullied by coworker, which Commission was not satisfied occurred, it was the relationship between the applicant and respondent which is crucial – whether applicant was left with no choice but to resign as a result of the respondent’s actions, or lack of action in respect of the alleged harassment of the applicant by her co-worker – Commission satisfied respondent acted appropriately to manage the situation by investigating complaints about applicant – respondent did not receive formal complaint from applicant about co-worker – respondent entitled to question limitation of hours without authorisation – Commission found applicant had alternative to resignation, with a number of choices open to the applicant – application dismissed. Taouk-Saade v Drug and Alcohol Multicultural Education Centre (DAMEC)
January 11, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a cleaner at Glenunga High School – summary dismissal occurred on 2 September 2016 – respondent provided two reasons for dismissal – first was applicant not wearing his uniform after repeated instructions and warnings to do so – second was leaving work early on 1 September and not recording it on his timesheet – applicant submitted dismissal unfair as he was wrongly accused of fraudulently recording his work hours as he had never been required to sign in or fill out a timesheet – further submitted he always wore his uniform after being given a final written warning on 20 June 2016 – Commission satisfied applicant did not generally sign his timesheets nor was he required to do so – not satisfied applicant left the high school site early on 1 September 2016 but that he had packed up his cleaning gear and was undertaking work elsewhere on the school grounds such that he was not seen – however Commission satisfied applicant deliberately engaged in a campaign of disobedience by not wearing his uniform even after his warning on 20 June 2016 – found respondent’s entire basis for dismissal centred on applicant not wearing his uniform on 19 August 2016 – Selvachandran applied – Commission found valid reason for termination in that applicant failed to wear the required T-shirt on 19 August 2016 – not satisfied summary dismissal appropriate in circumstances as respondent had allowed applicant to continue working after 19 August 2016 – found dismissal was harsh as it was disproportionate to the nature of his misconduct and unreasonable because he was not afforded a reasonable opportunity to discuss that termination proposal before it was put into effect – dismissal unfair – reinstatement appropriate – order to maintain continuity of employment appropriate – order to restore lost pay not appropriate as it was the applicant’s deliberate disobedience that resulted in his dismissal. Parr v Southern Cross Cleaning
January 11, 2017
REGISTERED ORGANISATIONS – amalgamation – Transitionally Recognised Association – Sched.1, Cl.6(2) Fair Work (Registered Organisations) Act 2009 – transitionally recognised association, Local Government Engineers’ Association of New South Wales (LGEA), lodged application pursuant to clause 6(2) of Sched.1 of RO Act seeking extension of its transitional recognition – in absence of extension being granted the transitional recognition of LGEA would cease on 1 January 2017 – Commission may grant extension until 1 January 2018 in prescribed circumstances – Commission must be satisfied progress made towards becoming an organisation or rationalising its internal affairs with those of its federal counterpart – Commission found LGEA could not satisfy first condition because s.19(5) of RO Act prohibits Commission from registering association registered under State or Territory industrial law if association has federal counterpart – Association of Professional Engineers, Scientists and Managers, Australia (APESMA) prescribed federal counterpart of LGEA under Sched.1A of RO Regulations – statutory declaration provided by LGEA set out historical and financial arrangements between LGEA and APESMA – outlined measures that LGEA implemented towards rationalising affairs with those of APESMA – steps taken included that LGEA largely correlates with one of the divisions of APESMA and LGEA took steps to alter rules for complete and seamless correlation between LGEA and Division – internal administration of LGEA and Division regularised so systems applied appropriately to requirements of rules of both organisations including concurrently held committee meetings and annual general meetings – that staff jointly employed by both LGEA and APESMA – that internal affairs of LGEA reflected in its rules on practical level rationalised and consistent with rules of Division – Commission satisfied on basis of circumstances set out in statutory declaration progress made by LGEA to rationalise internal affairs with those of federal counterpart – considered appropriate to exercise discretion in favour of granting extension of LGEA’s transitional recognition until 1 January 2018 – Commission ordered extension of transitional recognition. The Local Government Engineers’ Association of New South Wales
