ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned additional work employees directed to perform by respondent – dispute arose in relation to application of various clauses of recently approved Aurizon Train Crew and Transport Operations Enterprise Agreement 2015 (the Agreement) – applicant claimed employees entitled to higher grade allowance for the time undertaking new duties – applicant claimed the use of the provisions to have additional duties undertaken for no additional payment was not agreed during negotiations – respondent argued the combination of a number of clauses provided basis for the duties to be undertaken – probative evidence in terms of requirements in Golden Cockerel required – matter unable to be conclusively determined given the significant ambiguity and uncertainty that existed in relation to dispute that potentially had broader implications for further application of the provisions in the same way – improper to determine issue without providing additional opportunity to address comparison between how employees’ duties were previously undertaken compared to the current directions, and how this issue was considered in negotiations or associated matters relevant to the intention of the use of the clauses in this manner – Commission to set further directions to deal with issue of ambiguity and ordered a listing for conference be issued. Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited
October 11, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 401 Fair Work Act 2009 – application for unfair dismissal remedy – original decision found that dismissal was fair and application dismissed [[2016] FWC 5282] – respondent sought costs against applicant – submitted applicant caused their costs to be incurred unreasonably by continuing to hearing where there was no reasonable prospect of success – further submitted that applicant acted unreasonably by not accepting settlement proposals – Wright considered – matters of fact to be determined in this case – Commission rejected applicant’s contention – Commission not satisfied applicant unreasonably pursued and protracted application – Commission further noted that legislation not designed to prevent applicant from defending application – application for costs dismissed. Chimlum v Phoenix Sports P/L t/a Phoenix Gym
October 11, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.384, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed full-time for prior employer from January 2011 to February 2016 – submitted they became a transferring employee for respondent under s.311(3) of FW Act from March 2016 – after first shift, applicant signed casual employment contract – was informed no hours available but would receive more if available in future – no further communication about work or shifts provided – applicant submitted respondent repudiated contract by no longer communicating or offering work, which he accepted by lodging application – submitted casual employment contract should be set aside due to inverse power relationship between parties and that original full-time position with prior employer had been maintained – Commission found period of service included period served with prior employer – constructive dismissal took effect day application lodged – beyond Commission’s jurisdiction to reach finding regarding redundancy and notice entitlements for period to March 2016 – applicant continued from March 2016 under casual employment contract – facts did not show applicant subject to coercion or duress or had been unaware of his interests – brief employment as a casual employee concluded for an operational reason, being unavailability of work – no valid reason based on conduct or capacity for purpose of s.387(a) of FW Act – s.387(a) not relevant consideration when employee terminated for operational reason – operational reason relevant under s.387(h) – sound and defensible reason for employer to bring employment relationship to an end [UES (Int’l) P/L] – dismissal not harsh, unjust or unreasonable – application dismissed. Nicholls v The Trustee for MJ Hooper Trust
October 11, 2016
CASE PROCEDURES – referral to Full Bench – ss.394, 615A Fair Work Act 2009 – unfair dismissal application lodged on 21 September 2015 – on 28 August 2015 applicant was notified that his employment was terminated effective from 24 September 2015 – relevance of first instance decision in Pettifer v MODEC Management Services P/L (Pettifer) – Pettifer subject to Full Bench appeal – application for unfair dismissal application to be referred to Full Bench – respondent opposed – whether in public interest to refer matter – applicant submitted likely impact of Pettifer warranted referral and Pettifer Full Bench decision ‘arguably wrong’ – Commission not satisfied referral in the public interest – s.615A of FW Act not a mechanism for reviewing decisions – applicant’s rights not adversely affected if referral application rejected– application to refer to Full Bench dismissed. Gee v Tasmanian Ports Corporation P/L t/a Tasports
October 11, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – jurisdictional objection to application to deal with dispute under BlueScope Steel Port Kembla Steelworks Agreement 2015 – dispute concerned employee who was stood down and given final written warning – respondent objected to application as warning issued was beyond the scope of the dispute resolution procedure in cl.35.1 – AWU argued Commission authorised to deal with dispute given changes to manner in which permission to be sought for personal use of company truck constituted a workplace change under the Agreement and consultation procedures/criteria for implementation of change not complied with – in the alternative it is sufficient for part of dispute to be characterised as being about matters arising under Agreement for Commission to deal with entirety of the dispute [Hay Point Services v CFMEU] – Commission dismissed AWU’s first argument as the change described is one of normal day to day operations and therefore excluded from the workplace change clause under the Agreement – Commission considered AWU’s second argument and held issues in dispute not so disparate or disconnected dispute essentially about whether employee’s misconduct justified disciplinary action – stand down and final warning letter cannot be dissected into separate components because both arise from single substratum of facts – Agreement specifies circumstances in which respondent may stand down employee including for misconduct – respondent’s conclusion that employee misconducted himself was pre-requisite for exercise of power to stand employee down – therefore dispute about whether respondent had proper basis to conclude employee engaged in misconduct necessarily one about a matter which arises under Agreement – artificial to treat final warning letter as severable from dispute to which cl.35.1 applies as it is a manifestation of that dispute – jurisdictional objection dismissed. The Australian Workers’ Union v BlueScope Steel (AIS) P/L
October 11, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – dispute about whether the respondent was required under clause 7 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2012-2015 to commence consultation with the appellant and any affected employees in relation to the proposal under development to de-man respondent’s rail shed – decision at first instance concluded that the obligation to consult under clause 7 had not yet arisen as the proposal was not yet at the stage where it could be categorised as being under consideration by respondent – appellant contended that decision was attended by appealable errors of fact and law – Full Bench refused permission to appeal – at the date of the hearing of appeal respondent commenced engaging in consultation with the appellant in relation to the proposal – appellant therefore obtained the relief which it originally sought – appellant also submitted that decision expressed a general view about the proper interpretation of clause 7 – Full Bench found that the decision at first instance was primarily concerned with the factual circumstances at the time not with advancing a general interpretation of the agreement – after the decision was issued the Federal Court Full Court decision Port Kembla Coal Terminal Ltd v CFMEU was delivered which overtook the decision at first instance – agreement also passed its nominal expiry date and represented an opportunity to clarify the redrafting on clause 7 in future agreements. Appeal by Construction, Forestry, Mining and Energy Union against decision of Watson VP of 23 June 2016 [[2016] FWC 3852] Re: Port Kembla Coal Terminal Limited
October 10, 2016
Twenty-one applications will be heard by the Fair Work Commission asserting unfair dismissal and labour disputes today. The full list is: Bomaderry High School P & C Association (Walker), Suncorp Staff Pty Ltd (Managanaro), Calvary Hospital (Powell), Cupcakes Delivered Pty Ltd (Sheppard), Aldi Stores (Hocking), Aldi Foods Pty Ltd (Morton), Pilbara Iron Company (Service) Pty Limited (Munro), Target (Kapotas), Mr Utilities Pty Ltd (Esson), The Olive Jar (Pavan), Veolia Environmental Services (Australia) Pty Ltd (Hagg), Applied Electro Systems Pty Ltd (Kennedy), Northside Community Service Limited (Isturiz-Moron), Journeys Kitchen & Bar (Winder), Applied Electro Systems Pty LTd (Kennedy), The Trustee for the Waite Family Trust (Barsby), Gold Coast Learning Centre Pty Ltd as trustee for GCLC (Meyer), Engie Fire Services Australia Pty Ltd (Iannella), J Mathews Pty Ltd (Lambert), Darren J & Giosina M Marshman & Darina Corp Pty Ltd (Tork-Larki), Nyrstar Port Pirie Pty Ltd (Stevens).
October 6, 2016
A small army of claimants will parade today before the Fair Work Commission seeking relief from labour injustices. The full list is: Credit Corp Group Limited (Kapsis), Emirates (Powell), Hartway Galvanizers (King), South Sydney District Rugby League Football Club Limited (Carter), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division (Gee), Hattah Roadhouse Vic Pty Ltd (Godwin), Hattah Roadhouse Vic Pty Ltd (Sidhu), HITV Communications Pty Ltd (Wan), Langs Building Supplies Pty Ltd (Cezato-Loveridge), Greenlip Enterprises Pty Ltd (Davies), De Rucci Internaional Pty Ltd (Wang), Hair to a T Pty Limited (Booth), Builtoncorp Pty Ltd (Barnett), Patrick Projects Pty Ltd (Deeney). Patrick Projects Pty Ltd (Hughes), Patrick Projects Pty Ltd (King), Patrick Projects Pty Ltd (Park), Patrick Projects Pty Ltd (Seiffert), Patrick Projects Pty Ltd (Strauss), Hartway Galvanizers (King), Shire of London ( Ramsdale), K & Thomas Pty Ltd (Stosegan), DKMY Enterprises Pty Ltd (Airoldi), TEK-Ocean Energy Services Pty Ltd (Smethurst), Four C Realty Pty Ltd (Wang), May Shaw Health Centre Inc (Woolley), Langs Building Supplies Pty Ltd (Cenzato-Loveridge), DB Scaffolding & Rigging (Nelson), CMG Profits (Nicholson), Healthcare Australia Pty Ltd (Sommer), The Trustee for the Chheoum Family Trust (Harford), ALDI Distribution Centre (Hawkins), Claytons Australia Pty Ltd (Mckell), Qube Bulk Pty Ltd (Ashton), Decimil Engineering Pty Ltd (Enbom), Decimil Engineering Pty Ltd (Henley), Decimil Engineering Pty Ltd (Heron), Decimil Engineering Pty Ltd (McDonal), Decimil Engineering Pty Ltd (McMurdo), Decimil Engineering Pty Ltd (Moore), Decimil Engineering Pty Ltd (Mullins), Decimil Engineering Pty Ltd (Payne), Decimil Engineering Pty Ltd (Traynor).
