TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis that applicant was party to a fixed term contract of employment that operated from 1 July 2013 and expired on 30 June 2016 (the 2013 Contract) – argued that applicant was not ‘dismissed’ – his employment came to an end at the completion of the fixed term period within the meaning of s.386(2) of FW Act – in the alternative, respondent argued that if it was wrong about applicant being bound by the 2013 Contract, he was bound by an earlier contract which commenced in 2007 (the 2007 Contract) and was subject to continuity of government funding – respondent submitted there was no longer government funding for applicant’s role, and thus it was entitled to rely on the 2007 Contract to terminate his employment – respondent could not produce a signed copy of the 2013 Contract – applicant submitted he was employed under the 2007 Contract that was not for a specified period of time, but open ended – Commission held a contract does not need to be signed to be made, and in certain circumstances by not challenging the terms of a contract it can be the case that implied acceptance of the benefits constitutes implied acceptance of an offer – satisfied that at the time the employment ended on 30 June 2016 the 2007 Contract still operated – satisfied the 2013 Contract was never made – found reason for termination was based on a restructuring of the organisation caused by reduced funding – Commission not satisfied dismissal was harsh, unjust or unreasonable – application dismissed. Newson v South West NRM Limited t/a South West NRM
December 21, 2016
The unfair dismissal/labour dispute applications have spiked for the week. Thirty-eight applicants are on today’s list: Yarra Valley Farms (Shaune-Bould), Reece Australia Pty Ltd (Wilde), Showpiece Services Pty Ltd (Shrestha), Parramatta National Rugby League Club Pty Ltd (Muirhead), Menzies International (Australia) Pty Ltd/NSW (Peters), Air Liquide Australia Limited (Moffat), Milton Ulladulla Ex Servos Club (Backhouse), Austral Steelfixing Pty Ltd (Diaz), NTI Limited (Post), Decmil Group Limited (Dreger), Boral Cement Limited (Tuddenham), Experian Australia Pty Ltd (Andersson), South West Radiology Pty Ltd (Ramrakha-Sharma), Mt Arthur Coal Pty Limited (Muller), Yuibera Aboriginal Corporation (Young), HVAR Steel Services Pty Ltd (Liang, Zeng), Gryphon Global Aust Pty Ltd (Morrison), Dept. of Justice Victoria (McInerney), Australia Xiong Zi Pty Ltd (Ming), Spectrum MRC (Nasralla), Austral Steelfixing Pty Ltd (Diaz), Atanaskovic Hartnell Corporate Services Pty Limited & Atanaskovic Hartnell (Kelly), Dykes Bros Pty Ltd (Changezi, Nayeb), Apple Pty Limited (Phipps), Bleasdale National Contractors (Sinclair), Yuibera Aboriginal Corporation (Young), Demjet Pty Ltd (in Liquidation) (Rennie), Grant Johnson Pty Ltd ATF The Grant Johnson Trust (Petrie), Australian Tax Office (Panaouris), Channel Inn (Christmas), H20 Broad water Apartments (Lawrence), Oporto Cavill Ave (Totorewa), Mont Agricultural Development Pty Ltd (Fox), Lift Investments WA Pty Ltd (Perry), Vadasz Lawyers (Stevens), P.R. Hepple & Sons Pty Ltd (Watson).
December 20, 2016
The Fair Work Commission has approved the Allan Engineering T/A Allan Industries Pty Ltd application for its Allan Engineering Pty Ltd – Woolworths Distribution Centre – Enterprise Agreement 2016.
December 20, 2016
TERMINATION OF EMPLOYMENT – remedy – ss.391, 394 Fair Work Act 2009 – in earlier decision Commission found that the two applicants were unfairly dismissed and ordered reinstatement [[2016] FWC 7095] – this decision confined to the question of the amount of lost pay that should be ordered – applicants made submissions an order should be made for back pay or loss of wages between period of dismissal and reinstatement of $27,396.23 for Mr Pirko and $18,959.66 for Mr Bintoro – pretermination average weekly earnings used to calculate lost pay – payment in lieu of notice to be deducted from the total amount – payments received from alternate employment between period of dismissal and reinstatement to be deducted from amount – further deductions due to satchel cage incident determined to be two weeks average remuneration for each applicant – respondent ordered to pay Mr Pirko $22,992.85 and Mr Bintoro $15,689.58 for lost pay. Pirko and Anor v Toll Holdings Ltd t/a Toll Priority
December 20, 2016
Wire Industries Pty Ltd has had its Wire Industries Pty Ltd Enterprise Agreement 2016 application approved by Fair Work Commissioner Roe in Melbourne on 19 December 2016.
December 20, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – application for costs by respondent – applicant’s unfair dismissal application dismissed on 25 October 2016 [[2016] FWC 7740] – Commission found dismissal was genuine redundancy – respondent submitted that prior to conciliation it indicated that dismissal was a case of genuine redundancy – further submitted that on 4 October 2016, respondent sent applicant a letter explaining she was made genuinely redundant and it was unlikely her application would succeed -emailed applicant on 19 October 2016 to confirm that they would not pursue costs against her should she discontinue her application – applicant submitted that she received letter which stated that respondent would pursue costs should she proceed with her application which was intimidating and threatening – power to award costs discretionary, presumption of FW Act is that each party bears own costs – costs may be awarded where Commission is satisfied that the unreasonable act or omission of a party, in connection with continuation or conduct of matter, has caused other party to incur costs – term for ‘without reasonable cause’ is ‘whether on facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success’ [Kanan v Australian Postal and Telecommunications Union] – Commission found applicant did not have ulterior motive in pursuing unfair dismissal claim – found applicant was aggrieved by decision to terminate employment and wanted to prosecute application – Commission then considered whether applicant pursued application ‘without proper cause’ – assessment needed to be made as to whether application had no reasonable prospects of success and if was apparent to applicant – Commission found that having been informed of case against her the applicant should have reached the conclusion that her application did not have any reasonable prospects of success – Commission ordered costs of $1583.00 for expenses incurred by respondent for travel to the hearing but not for wages. Mitchell v Kellogg Brown & Root Ltd t/a KBR
December 20, 2016
A s.185 (Application for approval of a single-enterprise agreement) by Camec Pty Ltd T/A Camec for its Camec Pty Ltd Dandenong Warehouse Agreement 2016 has been stamped by Commissioner Gregory in Melbourne on the 19th December 2016.
December 20, 2016
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application for termination of RK and NK P/L Employee Collective Agreement 2006 made by employee – agreement covers employees working at four Subway stores in Geelong region – nominal expiry date of 10 August 2011 – employer representative claimed employee was terminated by respondent on 26 August 2016, three days prior to application being lodged – threshold issue about whether employee was employed by respondent at the time she made the application – respondent submitted employee given letter of termination at meeting 26 August 2016 – employee submitted she was advised of termination on 3 September 2016 – further submitted the only meeting she attended on 26 August 2016 was the regular unpaid staff meeting, and that she was not handed a letter – employee then worked her usual shift from 11.00am to 5.15pm on Saturday 27 August 2016 – Commission satisfied employee was an employee covered by the agreement at the time she made the application for termination on 29 August 2016 – Notice of Listing confirming further hearing dates to be issued. RK and NK P/L Employee Collective Agreement 2006
