TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent submitted dismissal a case of genuine redundancy – underwent operational changes between 2014 and 2016 – applicant’s role as a Mechanical Maintenance Manager one of two roles consolidated in new Maintenance and Reliability Lead Role – significantly different role, with higher pay and requiring tertiary qualified engineer, leadership expertise and performance across two plants – applicant did not apply for new role and not considered suitable – lacked requisite tertiary qualifications – no available redeployment opportunities suitable – Commission found applicant was aware of respondent’s restructuring imperative and knew of proposal to amalgamate positions – accepted that respondent made genuine attempts to identify vacant positions, commensurate with applicant’s skills, experience, existing position and status within respondent – McIlwraith distinguished – respondent no longer required applicant’s role to be performed by anyone – no position to which applicant could have been reasonably redeployed – process of notification and consultation fair and reasonable – satisfied dismissal a case of genuine redundancy – applicant not protected from unfair dismissal – application dismissed. Rubesa v Ixom Operations P/L t/a Ixom
September 20, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 401 Fair Work Act 2009 – employee made an application for unfair dismissal – employer raised two jurisdictional objections to this application – Commission found that the employee was not dismissed and his application did not meet the requirements of FW Act – employer made application for costs under ss.400A and 401 of FW Act – employer did not point to any unreasonable act or omission by the employee in pursuing his unfair dismissal claim but instead appeared to contend that the application had been made vexatiously or without reasonable cause and had no reasonable prospect of success – those considerations may have been relevant had the costs application been made under s.611 of FW Act – cannot be said that the employee’s application was manifestly untenable or groundless such that it had no reasonable prospect of success – no material provided to support a finding that the employee’s representative encouraged him to start, continue or respond to the matter – Commission not satisfied that the grounds in either ss.400A(1) or 401(1A) had been met – application dismissed. Zosel v The Grace Freemen Nelson Trust t/a Landsculpture Design & Construction P/L t/a Landsculpture
September 20, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute regarding application of Chubb Security Services Limited, Armoured Vehicles and Flexible Crewing, (South Australia & Northern Territory) Enterprise Agreement, 2013-2016 – Armoured Vehicle Operators (AVOs) not required to take meal break within Armoured Vehicles (AV) unless specifically directed to do so – common for one of crew to stay in AV for security reasons – national move away from practice given changes in technology – Appendix 2, clause 2 states allowance paid if AVO required to stay in AV for any part of break – TWU raised concerns about consultation and work health and safety implications – Commission’s preliminary view was allowance and time provisions do not apply if employer no longer requires AVOs to take any part of break in AV – acknowledged work health and safety issues and broader issues and arrangements – TWU noted impact on remuneration being considered as part of bargaining – Commission recommended parties hold discussions to develop guidelines and procedures regarding lunch breaks taken during runs. Transport Workers’ Union of Australia v Prosegur Australia P/L
September 20, 2016
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – application for a protected action ballot order (PABO) – application made in relation to proposed enterprise agreement applicant wished to make with respondent – respondent objected to granting of PABO – submitted Commission did not have jurisdiction to grant application and issue PABO because there had been no ‘notification time’ as required in s.437(2A) of FW Act – Maersk considered – satisfied that respondent had agreed to bargain with the applicant with respect to proposed multi-enterprise agreement (MEA) – decision to enter into bargaining involves parties coming together to see if agreement can be reached – that both come to table is not evidence that either agrees with anything the other has put to be negotiated, it is just that they have agreed to negotiate – Commission satisfied that respondent had provided notice of agreement to bargain – accepted its notice of agreement to bargain specified that proposed enterprise agreement was MEA – satisfied there had been ‘notification time’ by respondent and that notification related to proposed MEA – requirements of s.437(2) met – satisfied applicant had genuinely been trying to seek agreement with respondent with respect to employees to be balloted – PABO issued. National Tertiary Education Industry Union v Swinburne University of Technology
September 20, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged 103 days outside 21 day period – applicant made first application for unfair dismissal on 12 April 2016 – following conciliation parties reached agreement to settle matter and applicant filed Notice of Discontinuance – applicant submitted respondent did not pay amount specified in the agreement – proceeded to take action in Magistrates’ Court – further submitted he was unable to pursue payment following respondent’s refusal to accept delivery of necessary papers – asserted it is possible for Commission to set aside Notice of Discontinuance where respondent failed to honour its side of the settlement – Australian Postal Corporation v Gorman referred to – submitted that because respondent unilaterally determined the agreement by stating it discovered conduct prior to dismissal that provided ground to dismiss him, he should be able to re-commence his application – respondent asserted applicant was attempting to deal with the enforcement of the agreement through second application – suggested application in the wrong jurisdiction and Commission may be barred from dealing with it as it had already dealt with the matter – Narayan applied – held Commission cannot set aside the Notice of Discontinuance filed in respect of the first application – question was whether second application can be made in the same terms and in respect of the same matter – settlement agreement suggested matter had been dealt with – enforcement a matter for courts and not Commission to determine – Zoiti-Licastro applied – satisfied that the agreement reached was a complete answer to the claim – whether extension of time should be granted for making of second application – held that despite reasonable explanation for delay in making second application, Commission was not satisfied there were exceptional circumstances – further application not a substitute for enforcing agreement in appropriate court – application dismissed. Murray v FlameStop Corporate Services P/L t/a FlameStop
September 20, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day late – applicant notified respondent of pregnancy on 21 or 22 June 2016 – dismissed 4 July 2016 – solicitor error in calculating when 21 day time period expired – whether exceptional circumstances – Nulty considered – Commission satisfied applicant took appropriate actions to ensure application lodged on time – applicant blameless – substantive application not without merit – satisfied exceptional circumstances – satisfied reason for delay was out of ordinary course, unusual, special and uncommon – application granted – order issued. Veale v Aspire Group Enterprises atf Real Estate Prosperity Trust t/a Premium Property Management Specialists
September 20, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal lodged one day outside of statutory timeframe – Commission may allow a further period for the application to be made if satisfied there are exceptional circumstances – Nulty considered – applicant submitted that he misconceived the date his dismissal took effect due to representative error – Commission considered M N Robinson v Interstate Transport P/L – found applicant was solely responsible for the error in his interpretation of the advice he received and his error in calculating the final date for filing his application – found no exceptional circumstances – application for an extension of time dismissed. Hay v Renesola Australia P/L
September 20, 2016
GENERAL PROTECTIONS – extension of time – date dismissal took effect – ss.365, 366, 386 Fair Work Act 2009 – application for general protections application involving dismissal – application made 30 days late if applicant’s argument as to effective date of dismissal accepted – Toll Personnel P/L t/a Toll People (first respondent), a labour hire company, placed applicant on temporary assignment with Toll Jalco t/a Toll People (second respondent) – applicant argued dismissal due to absenteeism – applicant met with first respondent after shifts at second respondent were reduced – first respondent contacted applicant at least 20 times after meeting to offer alternative work matching applicant’s skill set and with commensurate hourly rate – applicant did not respond – applicant later requested employment separation certificate to access unemployment benefits – Commission observed that if there was no dismissal there could be no basis upon which to grant extension of time – concept of dismissal as being action at initiative of employer remains central to concept of dismissal for purposes of s.365 – there must be action by employer which either intends to end employment relationship or has that probable result [O’Meara] – Commission accepted applicant was not employed by second respondent, since parties did not dispute that first respondent engaged applicant to perform work for second respondent – not satisfied applicant’s employment was terminated at initiative of employer – applicant had not established any action by respondent which intended to end employment relationship or which had that probable result – Commission did not accept that applicant did not respond to first respondent’s offers of employment because applicant shared mobile phone with partner and often checked messages too late – since applicant’s employment was not terminated at initiative of employer, Commission did not consider it had capacity to determine an extension of time application – applicant was not dismissed – s.368 certificate to be issued advising application had no reasonable prospect of success in that applicant was not dismissed and application could not properly be made. Williams v Toll Jalco t/a Toll People; Toll Personnel P/L t/a Toll People
