MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – application made by Veterinary Nurses Council of Australia for a new classification to be introduced for Diploma Veterinary Nurse in the Level 4 definition – Full Bench considered rate of pay should not be dependent on holding a qualification but rather based on the nature of duties required to be performed – no evidence provided by parties regarding nature of duties and no appearances made at relevant hearing – Full Bench not satisfied a new classification should be inserted into award at this time – declined to vary award. Animal Care and Veterinary Services Award 2010
January 11, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision which found that applicant had resigned from employment and dismissed unfair dismissal application – applicant’s grounds of appeal lengthy and confusing – Full Bench found many of the arguments raised were an attempt to reargue the case and seek a different outcome – not open to appeal bench to substitute its view of the matters for determination at first instance in the absence of an appealable error in the decision at first instance – Full Bench could not identify any arguable appealable error – not able to identify any matter in appeal that might have enlivened the public interest – not persuaded appeal raised any issues of importance or general application, nor that it identified any relevant diversity of decisions at first instance – not arguable that decision at first instance manifested an injustice or that the result was counterintuitive – legal principles applied not disharmonious when compared with other recent decisions dealing with similar matters – permission to appeal refused – appeal dismissed. Appeal by Blythe against decision of Sams DP of 15 September 2016 [[2016] FWC 6160] Re: David Hartree Design Associates P/L t/a Hartree and Associates Architects
January 11, 2017
CASE PROCEDURES – appeals – costs – ss.604, 611 Fair Work Act 2009 – Full Bench – application made by respondent for appellant to pay costs for permission to appeal hearing [[2016] FWCFB 5504] – aspects of appellant case for granting permission to appeal were reasonably arguable – no basis to conclude appellant instituted appeal proceedings in order to harass or embarrass respondent, or to gain collateral advantage – application seriously pursued – appellant represented by legal practitioner – properly considered submissions advanced on behalf of appellant – jurisdictional prerequisites for granting costs not satisfied – costs application dismissed. Appeal by Palm against decision of Kovacic DP of 30 June 2016 [[2016] FWC 4292] Re: Sydney Night Patrol & Inquiry Co P/L t/a SNP Security
January 11, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – Statement deals with the plain language re-drafting of the designated standard clauses and the review of the draft Guidelines for plain language drafting of modern awards following the conference held on 23 November 2016 – draft Guidelines were developed by Mr Eamonn Moran QC – draft Guidelines were published on 9 November 2016 – the draft Guidelines will not have the effect of an award but they are there to assist all of the parties including the Full Bench in determining what plain language clauses will look like – Full Bench will publish the Guidelines in final form early in 2017 – five clauses identified as ‘standard clauses’ to be re-drafted as part of the Plain language Full Bench matter – whether the re-drafting process may have changed the legal effect of the provision – during the conference parties worked through concerns with the re-drafted Award flexibility term and a number of agreed changes were noted – revised draft version of the Award flexibility standard clause, incorporating changes agreed to during the conference – further conference is proposed to be held in Sydney on Monday, 23 January 2017 commencing at 9:00am to deal with the remaining ‘standard clauses’ – Full Bench made it clear that the re-drafting process is not intended to change the legal effect of a provision. 4 yearly review of modern awards – Plain language re-drafting – Standard Clauses – Draft Guidelines
January 11, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – Statement addresses concerns raised in correspondence from the Australian Council of Trade Unions (ACTU) – ACTU outlined their concerns regarding the process of Plain language re-drafting of modern awards – Ai Group shared some of the concerns – Plain language re-drafting process comprises of several elements – the review of the standard and common clauses generally and the review of award-specific issues in the awards that have been selected for the plain language process [[2016] FWC 4756], [[2016] FWCFB 5621] – standard clauses will be dealt with by conferences before Hunt C, and if required, at a hearing before the Full Bench – common clauses will be dealt with in a similar process in 2017 – further consultation in March 2017 to identify the provisions which are to be regarded as ‘common clauses’ for this purpose. 4 yearly review of modern awards – Plain language re-drafting – General
January 11, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – model term for providing time off instead of payment for overtime (TOIL) was determined in a decision of 8 July 2016 (the July 2016 model TOIL term) [[2016] FWCFB 4258] – subsequent decision of 11 July 2016 varied awards which provided for overtime but did not give employees the option of taking time off instead of payment for working overtime and a number of award terms that provided TOIL at ‘ordinary rates’ [[2016] FWCFB 4579] – further decision on 31 August 2016 dealt with TOIL provisions in another 13 awards including those in the Maritime industry and Resources sector [[2016] FWCFB 6178] – after the 31 August 2016 decision, only 29 of the 113 modern awards which make provision for paid overtime remained outstanding – 21 of the remaining 29 awards currently provide for TOIL at ‘overtime rates’ – statement issued on 5 September 2016 (the 5 September 2016 Statement) outlined how the Full Bench would deal with these awards [[2016] FWCFB 6333] – In the decision of 6 October 2015 the Full Bench determined that employees who are covered by awards that provide TOIL at ordinary rates should be afforded additional safeguards to protect them from any pressures arising from the ‘financial incentive’ that employers may have to encourage an employee to take TOIL rather than payment for overtime worked [[2015] FWCFB 6847] – in the 5 September 2016 Statement the Full Bench expressed the provisional view that the July 2016 model TOIL term should be modified in respect of those awards that currently provide for TOIL at ‘overtime rates’, to remove the requirement in the model term for a TOIL agreement to be ‘in writing’ – the modified term (the model overtime rates TOIL term) results from changes made to the July 2016 model TOIL term. 4 yearly review of modern awards – Award flexibility
January 11, 2017
An employee who was sacked after being filmed in an “aggressive” road-rage incident while using a company car has lost a battle to get back his job. The former Engie worker was driving home with a colleague in a company-owned four-wheel-drive in July last year, when a dual-lane road narrowed to one lane before an intersection. Once the road became two lanes again, a young female driver pulled up beside their car and gave him “the bird”, the Fair Work Commission was told. The worker allegedly wound down the passenger-side window and yelled back at the woman, exchanging “gestures and heated words”. The woman then overtook him and repeatedly hit the brakes while in front, to slow down and annoy him, the tribunal found. Both cars pulled over in a side street, where the worker allegedly got out and “aggressively approached” the other car’s side window. The woman was recording him on her mobile phone. He then returned to the four-wheel-drive and pulled up even closer to the other car, with his headlights on and engine running, it was alleged. Fair Work Commissioner Peter Hampton said it seemed the woman may have been responsible for sparking the row, but that did not diminish the seriousness of the man’s behaviour. “Although she was mainly responsible for the initial events … the conduct of [the former worker] in following her, coming to her window, and then aggressively moving his vehicle up even closer behind her … would reasonably be understood to be intimidating and aggressive,” he said. Engie launched an investigation into the incident after the woman sent a formal letter of complaint and her mobile phone footage. In a meeting, the worker responded to the allegations, saying both he and the woman had initially agreed to report the incident to the local police station, until she saw the name of his company on his jumper. “Ah, Spectrum Fire,” she allegedly said. “Now you’re stuffed.” Engie, which owns Spectrum, found its employee to be the “aggressor”, who had intimidated and abused the other road user. It notified of the reasons for his dismissal. “He engaged in inappropriate verbal exchanges over several minutes, purposely detoured in order to follow the vehicle, parking close behind it whilst revving his vehicle,” Engie found. “He also approached the other road user’s vehicle uninvited.” The worker, who was permitted to resign, later launched an unfair dismissal claim at the Fair Work Commission, denying he had displayed any aggressive or antagonistic behaviour, and claiming he was the victim in the incident. He also claimed he was not properly notified of the reason for dismissal, because the company did not disclose to him details of the alleged “inappropriate verbal exchanges”. But the commissioner Mr Hampton said the reason for dismissal was valid, and he was not persuaded it was harsh, unjust or unreasonable.
January 11, 2017
BHP Billiton has been refused consent to be represented by a lawyer in its defence of an unfair dismissal claim brought by Paul Desmond.
