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
October 11, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute arising under Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (2010 Agreement) according to applicant – dispute concerned whether applicant should have been provided paid Defence Force Leave during a period he was absent from MFB on approved leave as part of his duties as a member of the Australian Defence Force (ADF) – period of absence was between 31 July 2009 and 13 May 2010 – applicant granted a mixture of paid and unpaid leave during the period – applicant contended that during course of active service, he should have been paid as if he was at work during the period and any paid annual leave should be re-credited – argued that dispute arose under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2005 (2005 Agreement) – applicant contended dispute brought to Commission due to provisions of 2010 Agreement, with the substantive matter to be determined being an entitlement arising under 2005 Agreement – respondent contended Commission had no jurisdiction to determine application under 2010 Agreement, but would consent to Commission providing an interpretation of 2010 Agreement – Commission satisfied there had been no consistent approach taken to the granting of Defence Force Leave by the MFB – further satisfied clause 63.2 of 2010 Agreement, in its plain meaning, indicated that additional time off is to be leave of absence without pay – concluded applicant not entitled to be paid ordinary wages for period between 29 October 2009 and 14 April 2010 where he was granted unpaid Military Service Leave – further held that MFB is not required to re-credit all annual leave taken by applicant between 3 September 2009 and 28 October 2009. Hester v Metropolitan Fire and Emergency Services Board
October 11, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – whether applicant’s dismissal was a genuine redundancy – applicant employed as long-distance truck driver – applicant informed he faced redundancy due to work practice breaches and company restructure – applicant requested chance to improve but was made redundant – Commission considered s.389 of FW Act – found no person was required to perform applicant’s job due to change in operational requirements – satisfied it was not reasonable for the applicant to be redeployed within the respondent’s enterprise – Honeysett considered – Commission found dismissal was genuine redundancy – application dismissed. Smith v Don Watson P/L
October 11, 2016
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application to stop alleged industrial action occurring at bulk petroleum distribution centre in Altona North and disrupting fuel deliveries to retail outlets – heard at short notice late in evening – NUW not in attendance – employer submitted that industrial action related to disciplinary issue – NUW conducted site meeting between shifts – some employees refused to attend next night and day shift – employer attempted to notify NUW and individual employees about application and short notice hearing – employer submitted industrial action happening and not protected – Commission mindful of limited opportunity for relevant NUW officials and individual employees to provide submissions and evidence in response to application – not appropriate to determine application at this time – given potential impact of the alleged action Commission was satisfied it was appropriate for an Interim Order to be issued – matter listed for further hearing. Linfox Australia P/L v National Union of Workers
October 11, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – continuity of employment – ss.383, 394 Fair Work Act 2009 – applicant lodged application for unfair dismissal remedy – respondent raised a jurisdictional objection alleging applicant did not complete the minimum employment period – submitted employment took place in two distinct periods with a cessation in between – also submitted an ‘end of probation’ meeting was held during which the applicant’s employment was terminated and he was placed on a fixed term contract with an employment break of one day – applicant submitted he was not aware he had been terminated and had been continuously paid throughout the 10 months of his employment – Commission satisfied applicant was unaware the respondent was attempting to terminate his employment – whilst there was a change in the contract of employment, there was no cessation of the employment relationship – as such applicant had been employed for more than six months at the time of his dismissal – jurisdictional objection dismissed – matter to be listed for further programming. Pope v Water Dynamics P/L
October 11, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a primary school physical education teacher – dismissed following certain events and allegations of misconduct – one incident involved applicant ‘grabbing back of blazer of student and lifting him to his seat’ where student was involved in wrestle with other student – respondent made several allegations of misconduct – investigation conducted by Worklogic – respondent advised applicant in show cause letter that following investigation there were 13 allegations of misconduct – misconduct included inappropriate physical force, calling students ‘losers’ and placing student outside classroom – applicant submitted that respondent failed to follow its complaints procedure as he had not been notified of allegations – Commission did not consider reasons for dismissal to be ‘capricious, fanciful, spiteful or prejudiced’ – found valid reason – held that applicant exhibited a pattern of behaviour in his conduct in relation to children and the college that was unacceptable – dismissal not harsh, unjust or unreasonable – application dismissed. James v St Thomas Aquinas College Limited t/a Thomas Aquinas College
October 11, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – failure to prosecute application – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal – filed in July 2014 – respondent in liquidation – in-principle settlement – application not formally discontinued – deed not executed – no application to relist or otherwise deal with matter – application made to list application for arbitration 15 months later after approach to statutory fund unsuccessful – application by respondent to dismiss under s.587 – Carter and Chand considered – Commission found failure to prosecute and abuse of process – appropriate and within powers to dismiss application – unfair dismissal application dismissed. Klemm v Penrice Soda Products P/L (In Liquidation)
October 11, 2016
CASE PROCEDURES – apprehension of bias – ss.394, 589 Fair Work Act 2009 – applicant’s unfair dismissal application made on 23 February 2016 – hearing dates on application’s merits rescheduled on multiple occasions – on 18 August 2016 respondent applied to have current hearing dates vacated and relisted on dates determined by the Commission in consultation with the parties due to witness availability – on 26 August 2016 Commission gave parties two options for hearing dates – Commission had ex-parte conversations with both parties on the setting of hearing dates – parties could not agree – applicant’s representative unavailable on one set of dates – respondents’ senior counsel unavailable on the other set of dates – Commission determined the hearing would be held when the respondent’s senior counsel was unavailable as all 7 witnesses could attend those dates and only 6 witnesses could attend the other set of dates – subsequently respondent applied for the Commissioner to recuse himself from the matter – submitted Commissioner has made decisions and contacted and discussed the matter with parties on an ex-parte basis which demonstrated apprehended bias – applicant submitted they had no concerns about bias, apprehended or otherwise – Commissioner used the reasonable lay observer test from Johnson v Johnson – held that given the circumstances, a reasonable lay observer would not apprehend that the Commissioner was biased – decision made was procedural and administrative to break the impasse between parties and decide when matter would be heard – no basis to conclude decision made in interlocutory proceedings against the respondent’s preferred hearing dates would repeat itself when determining the merits of the case – Commissioner to proceed and hear and determine the applicant’s application. Applicant v Respondent
