ENTERPRISE BARGAINING – protected action ballot – extension of notice period – s.437 Fair Work Act 2009 – protected action ballot orders (PABO) made in respect of applications made by AMWU and CEPU – reasons for decision – Broadspectrum (Australia) P/L opposed the making of a PABO and requested that if granted, the period of written notice be seven days, rather than three days pursuant to s.443(5) FW Act – respondent maintained that the Unions were not genuinely trying to reach an agreement – Commission not persuaded Unions were not genuinely trying to reach agreement with Broadspectrum – not satisfied exceptional circumstances existed which would warrant Broadspectrum receiving a further period of written notice. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v and Anor
October 11, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about matter arising under TW Power Services AGL Loy Yang Power Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2016 – existing practice of many years where employees finishing work at 3.30pm would commence walking to exit around 3:25pm and pass through exit gate around 3.30pm – dispute arose about capacity of TW Power to bring end to existing practice and require employees to remain on site until 3.30pm – question whether existing practice was ‘over Agreement condition of employment’ – Clause 5.7 preserved existing over agreement payments and over agreement conditions of employment unless varied – Commission held existing practice not part of conditions of employment within meaning of expression in Clause 5.7 – question whether TW Power’s proposal constituted variation to usual finishing time – AMWU submitted ‘usual finishing time’ indicated common understanding as to custom and practice and Clause 13.2 operated to effect there be no change to common understanding unless agreed to by parties – Commission did not accept that ‘usual finishing time’ meant time employees were permitted to leave site – must be read and understood in context of hours of work provision – ordinary hours of work was 36 per week so ‘usual finishing time’ mandated finishing time at 3.30pm – question whether TW Power proposal constituted ‘extra claim’ – AMWU submitted that TW Power proposal amounted to extra claim for purposes of Clause 43 – Commission held that TW Power’s proposal not a claim but merely insistence that there be adherence to ordinary hours of work prescribed by Agreement – no orders made. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v TW Power Services
October 11, 2016
TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant and respondent alleged different dates of termination 18 days apart – if respondent’s date relied upon then application lodged 10 days outside statutory time limit – dispute as to date of termination – respondent submitted that applicant was terminated with immediate effect after meeting on 17 May 2016 – applicant paid four weeks’ pay in lieu of notice – applicant believed she had been placed on ‘garden leave’ and had to make herself available up to and including 20 June 2016 – Siagian v Sanel considered – Commission found applicant’s employment was terminated on 17 May 2016 with four weeks’ notice expiring on 14 June 2016 – held there was an agreement that applicant serve notice period as she was required to perform on-going duties in the form of a handover during this period – found respondent did not intend termination to take effect immediately – respondent tried to vary agreement but there was no mutual agreement – application filed within time and no extension of time necessary. Amanda Colledge v Bakersfield Holdings P/L atf Separovic Family Trust
October 11, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.311, 382, 394 Fair Work Act 2009 – unfair dismissal application – whether minimum employment period served – three years’ service with previous employer – four months’ service with respondent – whether employment with previous employer counted as continuous service with respondent – whet her transfer of business in accordance with s.22(8)(b) of FW Act – whether a connection between old employer and respondent existed – meaning of ‘in accordance with an arrangement’ – Hillie and Zabrdac considered – Commission not satisfied of an arrangement between old employer and respondent – no evidence of connection pursuant to s.311 – no transfer of business – minimum employment period not served – application dismissed. Crossin v Tazzy Tyres Accessories P/L t/a Tazzy Tyres
October 11, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – decision finalises a number of outstanding matters in relation to the variation of annual leave terms in modern awards – should be read in conjunction with previous decisions issued on 11 June 2015 (the June 2015 decision) [[2015] FWCFB 3406], 15 September 2015 (the September 2015 decision) [[2016] FWCFB 5771], 23 May 2016 (the May 2016 decision) [[2016] FWCFB 3177] and 24 June 2016 (the June 2016 decision) [[2016] FWCFB 3953] – two categories of outstanding issues – whether the excessive model term should be included in certain modern awards and whether particular existing terms that provide for the taking of annual leave should be retained; and annual leave provisions in a number of awards in the Maritime industry – Timing of taking annual leave – June 2016 decision finalised the excessive leave model term – 20 modern awards contain existing provisions which require accrued annual leave to be taken within a certain period of time – relevant Unions confirmed they were seeking the insertion of the model excessive leave term – no objection received to insertion of the model term in 18 modern awards – Full Bench concluded the existing terms which require annual leave be taken within a specified period of time after accrual did not provide a fair and relevant minimum safety net of terms and conditions of employment and, accordingly, did not satisfy the modern awards objective – these18 modern awards set will be varied to insert the excessive leave model term – the two modern awards which were the subject of continuing objections were the Black Coal Mining Industry Award 2010 (the BCMI Award) and the Aquaculture Award 2010 (the Aquaculture Award) – FW Act does not require an employee to take their accrued paid annual leave within any particular timeframe – ‘a modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable’ [s.93(3) of FW Act] – the assessment of whether a requirement to take paid annual leave is ‘reasonable’ within the meaning of s.93(3) is not viewed solely through the perspective of the employer – BCMIAward provides for 6 weeks’ annual leave per annum for continuous shiftworkers and 5 weeks for other employees – the Coal Mining Industry Employer Group (CMIEG) submitted data which showed that some 1,973 employees employed by 12 black coal mining industry employers (or about 9.5% of the employees) had an ‘excessive leave accrual’ within the meaning of the model term – further submitted that accrual of annual leave is not at a level that is problematic in the industry – Full Bench held that such a level of ‘excessive’ paid annual leave accruals was problematic and supported an inference that a significant proportion of these employees were not taking a reasonable portion of their paid annual leave – decided to insert the model excessive leave term into BCMI Award, subject to a modification to the definition of ‘excessive leave’ having regard to the level of annual leave entitlements under the award – Aquaculture Award provides that annual leave is to be taken within 18 months of accrual – also provides that employees may be directed to take annual leave where an employer ‘ intends temporarily to close (or reduce the nucleus) the place of employment or a section of it’ – NSW Farmers (Industrial) Association (NSW Farmers), which represents the interests of oyster producers in NSW, opposed insertion of the model excessive leave term – Full Bench concluded the excessive leave term in the Aquaculture Award did not provide a fair and relevant minimum safety net of terms and conditions of employment – satisfied that variation of the Aquaculture Award to insert the model excessive leave term is necessary to ensure award meets the modern awards objective – Maritime awards – whether the six modern awards in the Maritime industry (the Maritime Industry Awards) should be varied to include some or all of the model annual leave terms – no longer any opposition to the insertion of the excessive leave, leave in advance and cashing out model terms into the Dredging Industry Award 2010 and the Ports, Harbours and Enclosed Water Vessels Award 2010 – Full Bench proposed to vary these two awards to insert the three model terms – AMMA/MIAL joint submission asserted the existing terms in the Marine Towage Award 2010; the Maritime Offshore Oil and Gas Award 2010 ; and the Seagoing Industry Award 2010 gave employers ‘the necessary flexibility to manage rosters by working in sync with the ‘swing system’ eg four or five weeks on duty followed by four or five weeks off duty’ and that ‘annual leave cannot be accommodated for employees during the on duty period’ – Full Bench found operation of the swing system in these awards likely to minimise excessive paid annual leave accruals and on that basis did not propose to vary these awards to insert the excessive leave model term – whether these awards should be varied to insert the cashing out and leave in advance model terms – none of these awards presently provide for the cashing out of annual leave – cashing out model term is a facilitative provision – no obligation on the employer to enter into such an agreement – provisional view of Full Bench was that these three awards should be varied to insert the cashing out model term – standard leave in advance model term is a facilitative provision – provisional view of Full Bench was that these three awards should be varied to insert the leave in advance model term – Professional Diving (Industrial) Industry Award 2010 provides different entitlements for inshore and offshore during operations – AMMA/MIAL joint submission does not oppose the variation of the award to insert the annual leave model terms in respect of inshore divers, but does oppose the application of those model terms to offshore divers – Full Bench did not propose to deal now with whether the excessive leave model term should be inserted into this award – a number of drafting issues need to be addressed before this matter can be determined – provisional view of Full Bench was that the Professional Diving (Industrial) Industry Award 2010 should be varied to insert the cashing out and leave in advance model terms and they should not distinguish between inshore and offshore divers – interested parties will have until 5.00pm (AEST) Friday 7 October 2016 to notify the Commission (at [email protected]) if they wish to contest the Full Bench’s provisional views in respect of the other Maritime Industry Awards. 4 yearly review of modern awards – Annual Leave
October 11, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.437, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission was not satisfied that appellant had been genuinely trying to reach agreement with respondent and dismissed application – public interest considerations identified in GlaxoSmithKline – Peko-Wallsen considered regarding exercise of a discretion as appealable error and failure by decision maker to take into account relevant consideration – appellant submitted Commission erred in concluding that jurisdictional prerequisite in s.443(1)(b) of FW Act had not been met and Commission had regard to tactics or approach adopted by appellant rather than its motivation, object or purpose – further submitted that history of negotiations was not given appropriate weight – respondent submitted that Commission had broad discretion conferred by FW Act and that the appellant’s submission relied on second limb in House v The King – Full Bench held the test for error of that kind is high and relies on Order being unjust or unreasonable – satisfied that Commission did not take into account tone of correspondence between parties as negative factor in final determination – consideration was part of overall context and not determinative of application – satisfied that Commission considered extensive bargaining which had taken place between parties – not persuaded that Commission’s failure to make particular findings about each matter that was alleged to be non-permissible is an error – existence of claims for non-permitted matters does not support finding that organisation was not genuinely trying to reach agreement – satisfied that it was management of claim for non-permitted matters and its late removal from bargaining table just prior to hearing which was focus of Commission’s consideration – was a matter that Commission was properly able to take into account in reaching the conclusion about whether appellant was genuinely trying to reach agreement – two other matters relied upon by Commission insupport of conclusion that PABO should not issue were appropriate matters to have been considered in exercise of broad discretion as both issues were capable of going to issue of genuineness – satisfied that action against unrelated entities was factor properly available for consideration – appointment of six new bargaining agents was unexpected development – open to Commission to find that this action disrupted the bargaining – held Commission’s discretion was not exercised wrongly – held Commission’s decision was not manifestly unjust or unreasonable – permission to appeal granted – appeal dismissed for forgoing reasons. Appeal by Construction, Forestry, Mining and Energy Union – Mining and Energy Division against decision and order of Clancy DP of 1 July 2016 [[2016] FWC 4364 ], [PR582301] Re: AGL Loy Yang P/L t/a AGL Loy Yang
October 11, 2016
RIGHT OF ENTRY – application for permit – ss.512, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission refused application for entry permit to be issued to Mr Tadic of the CFMEU – held he was not fit and proper because the continuing attitude of disobedience of his union branch set a higher bar than normal, and Mr Tadic did not demonstrate different personal qualities or behaviour – appellant claimed the Commission took into account CFMEU contraventions not involving Mr Tadic as well as Federal Court matters where findings had not been made – asserted that the Briginshaw standard of proof was not applied and the Commission failed to give adequate reasons for his conclusion – contended decision manifestly in error in its misapplication of s.508 of the FW Act, addressing concerns about an organisation’s misuse of entry rights rather than visiting those concerns on Mr Tadic – respondent contended that permission to appeal should not be granted as the decision did not depart from established reasoning or judicial authority and did not contain arguable error or injustice to Mr Tadic – Mooney and Kong considered – minority of Full Bench held that while the Commission was able to have regard to the demonstrated behaviour of the CFMEU, the Commission was fundamentally directing his attention at Mr Tadic ‘s characteristics and attributes – minority not satisfied that decision disclosed error and held it would dismiss the appeal – majority of Full Bench held there was error in the Commission’s decision-making process because he framed his consideration in the context of a higher bar than normal applying to Mr Tadic – concluded that the approach of the Commission was not open to him and he acted on a wrong principle in doing so – on the basis of this error, appeal upheld and decision at first instance quashed – parties asked for submissions in relation to the manner of disposition of the appeal – appellant submitted that if the Full Bench felt it did not have sufficient material before it then the application would need to be sent to a Member other than the Vice President for determination ‘because of the various findings which he has already made’ – respondent disagreed and submitted the matter should be remitted for consideration of any further evidence adduced by parties – Full Bench determined it was not inappropriate to remit matter to the Vice President and held this was the best course as there was not sufficient material for it to determine matter – permission to appeal granted, appeal upheld with decision quashed and application remitted to Vice President for rehearing and determination. Appeal by Construction, Forestry, Mining and Energy Union against decision of Watson VP of 31 May 2016 [[2016] FWC 3322] Re: Director of the Fair Work Building Industry Inspectorate
October 11, 2016
ENTERPRISE BARGAINING – protected action ballot – extension of notice period – ss.437, 443, 444 Fair Work Act 2009 – application for a protected action ballot order (PABO) – prior application involving same parties (B2016/947) discontinued and new application filed – current application differed from prior application in that four of the seven questions had been reworded and a different ballot agent was proposed – Murdoch objected to some of the questions to be put to the employees and submitted there were exceptional circumstances warranting a longer period of notice being given before some forms of the proposed industrial action was to be taken – employees who would be covered by the proposed agreement include nearly all the employees of Murdoch except for certain executive staff – Murdoch has 575 fixed term and continuous academic staff, 828 casual academic staff, 919 fixed term and continuous professional staff and 1060 casual professional staff – evidence given of instances in which three days would not give Murdoch enough time to respond to the industrial action with likely adverse consequences for students, staff and other third parties – if employees trained in first aid and workplace safety, or who are employed to perform security functions were to stop work the safety of students, staff or visitors to the campus may be impacted – stoppages of work by security staff could jeopardise the safety of students attending campus and hundreds of students living on campus – Commission satisfied the evidence of Murdoch demonstrated that some of the protected industrial action proposed if the ballot was supported would create risks to the health and safety of third parties including students, members of staff not members of the NTEIU and members of the public visiting Murdoch’s campus due to the security being disrupted – satisfied that appropriate defensive action could not be taken within the statutory three day period of notice to overcome these risks if security officers do not attend for work – PABO made – notice period extended for some forms of the proposed protected industrial action. National Tertiary Education Industry Union v Murdoch University
