TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant part of the Field Maintenance team – an employee (X) of the respondent had been bullied in a serious and unacceptable way by people with whom he worked – primary question was whether the applicant was involved in the bullying of X – alleged that the applicant, with two other employees, left the workplace and deliberately drove their cars in a way to block X from being able to make a right hand turn off the Golden Highway – respondent conducted an investigation and concluded the alleged conduct had occurred – the applicant and one other employee were dismissed – whether respondent had a valid reason for the dismissal of applicant – Briginshaw considered – after consideration of the evidence the Commission concluded the applicant acted intentionally, together with two other employees, to prevent X from being able to turn right off the Golden Highway – risk of a serious motor vehicle accident – only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees [Appellant v Respondent] – out of hours conduct must have a relevant connection to the employment relationship in order to be a valid reason for dismissal [Rose v Telstra] – no question that applicant’s conduct in making a plan or agreement with the two other employees was conduct that took place at the workplace and is therefore not ‘out of hours conduct’ – Commission satisfied that the conduct engaged on the Golden Highway in relation to X had a relevant connection to the employment relationship – satisfied respondent had a valid reason for applicant’s dismissal related to his conduct, including its effect on the safety and welfare of other employees – satisfied dismissal not harsh, unjust or unreasonable – application dismissed. Kedwell v Coal & Allied Mining Services P/L t/a Mount Thorley Operations/Warkworth Mining
September 20, 2016
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application for a majority support determination – applicant relied on a petition signed by employees in May 2016 to establish a prima facie case – once respondent became aware of application it conducted a ballot of employees in June 2016 which provided three options – the result of the ballot was 30 votes against bargaining, 31 votes abstaining and 38 votes in favour of bargaining – respondent submitted the applicant posed the wrong question on the petition and that some employees may have signed the petition without it having been explained – respondent submitted that its ballot should be preferred over the applicant’s petition, as it was more recently conducted – respondent submitted that those who chose the option on the ballot of abstaining from voting should be taken to have elected against bargaining – employees not informed that a vote to abstain would be counted as a vote against bargaining – Commission of the view that it would be equally wrong to attribute a ‘no’ vote to all those who abstained as it would be to attribute a ‘yes’ vote to those who abstained – Commission also of the view that toolbox meetings conducted by the respondent were one-sided and did not fully inform employees of the facts – respondent submitted some employees who had signed the applicant’s petition had subsequently changed their minds – any ballot or petition only represents employee views at a particular point in time – Commission satisfied that time petition was taken by applicant represented the most appropriate time for determination of whether majority support for bargaining existed – Commission satisfied majority of employees support bargaining for an enterprise agreement – majority support determination made. Australian Workers’ Union, The v Kantfield P/L t/a Martogg & Company
September 20, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about classification and applicable allowance for employees appointed as electrical work team leader pursuant to Kentz P/L – CEPU Gorgon Project – Barrow Island Enterprise Agreement 2015 – union submitted the allowance properly classified as an all-purpose allowance – employer submitted it was to be paid as a flat rate – relevant clause used the words ‘weekly rate’ – leading hand clause within the agreement referred specifically to ‘all-purpose allowance’ – union submitted the team leader clause had the some property as the leading hand clause despite different text – employer submitted the textual differences were intended to be different and thus have different application – City of Wanneroo considered in relation to construction – Commission considered that the agreement distinguished electrical work team leaders from leading hands – there was no reason to import text into the agreement as it the plain, ordinary meaning could be understood – bargaining history of parties considered – the issue of characterisation of the allowance was in dispute during bargaining – does not alter the final text of the agreement – the ‘weekly rate’ was determined to be a flat rate. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz P/L
September 19, 2016
A miniscule list of fifteen labour disputes are listed for hearing today by the Fair Work Commission. The assembled will include: Downer EDI Works (Rezaei), Community Services #1 Incorporated (Robertson), Keep Australia Beautiful Council Northern Territory (Williams), New South Wales Basketball Association Limited & Elphinston (Martinez), Toll Transport Pty Ltd (Pena), Bomaderry High School P & C Association (Walker), CHEP Pallecon Solutions Pty Ltd (Muscat), Trade Port International Pty Ltd (Cairns), Lane Cove Retirement Units Association Ltd (Allan), Momentum Media Pty Ltd (Garcia), Serco Group Pty Ltd (Karnicki), Toll Energy Logistics Pty Ltd (Zang), Rio Tinto Limited (Hocking), SJJ Group Pty Ltd (Abra), GDS Holdings (Kooyman).
September 19, 2016
An application for approval of the Unified Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015-2019 (s.185 – Application for approval of a single-enterprise agreement) will be determined by Commissioner Gregory in his Melbourne chambers.
September 13, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – consideration of the insertion of the TOIL model term into 10 modern awards – Full Bench first considered insertion into Mobile Crane Hiring Award 2010 and Amusement, Events and Recreation Award 2010 – provisional view expressed 11 July 2016 model term should be inserted – no objections received – held model term to be inserted into these awards – Full Bench then considered insertion into Hydrocarbons Industry (Upstream) Award 2010, Mining Industry Award 2010, Oil Refining and Manufacturing Award 2010 and Salt Industry Award 2010 (Resources Sector Awards) – Resources Sector Awards already contain a TOIL provision – AMMA submitted current provisions should not be altered – submitted current provisions were simple to understand and have met the modern awards objective – model term provides increased prescription and regulatory burden on employers – no industry evidence supports insertion of the model term – Commission should consider its previous decisions in the award modernisation process relevant to this contested issue – AWU and AMWU support the insertion because there are no industry specific reasons against it – Full Bench reiterated points from previous Full Bench decisions dealing with TOIL provisions – held no previous decisions related to this issue in award modernisation process – model term not burdensome – no relevant industry evidence against the insertion – current TOIL provisions in the Resources Sector Awards are deficient and do not provide a fair and relevant safety net because they do not provide the additional employee safeguards in the model term – model term to be inserted into the Resources Sector Awards – Full Bench then considered insertion into Marine Towage Award 2010, Ports Harbours and Enclosed Water Vessels Award 2010 (Ports Award), Professional Diving Industry (Industrial) Award 2010 (Diving Award) and Dredging Industry Award 2010 – all of these awards contained overtime provisions and the Ports Award also had a TOIL provision – MIAL, AMMA submitted similar submissions to those advanced against the insertion of the model term in Resources Sector Awards – submitted model term should not be incorporated into these awards – MUA agreed the Awards should not incorporate the model term – AWU agreed except they supported the inclusion of the model term in the Ports Award because the current TOIL term was deficient and not consistent with the modern awards objective – Full Bench held Ports Award’s current TOIL provision is deficient and does not provide a fair and relevant safety net because they do not provide the additional employee safeguards in the model term – model term to be inserted into the Ports Award – Full Bench cited April 2016 Award flexibility decision when considering the insertion of the model term into the other three Awards – held model term not to be inserted into the Dredging Industry Award 2010 or the Marine Towage Award 2010 because all interested parties opposed the variation and the awards already contained sufficient aggregate salary provisions commonly used in practice – held model term to be inserted into the Diving Award but limited to apply only to inshore divers because the Diving Award currently only provides overtime for inshore divers and not offshore divers – draft determinations to be published. 4 yearly review of modern awards – Award flexibility
September 13, 2016
CASE PROCEDURES – procedural and interim decisions – s.589 Fair Work Act 2009 – application brought on second day of hearings regarding competing scope orders – scope orders for three agreements sought by Unitywater and AWU, with application for one agreement for enterprise sought by ASU and CFMEU and supported by other unions – CFMEU sought further scope orders for either one agreement or alternatively two agreements – interim order sought to allow CFMEU to advance its position – HSU v Victorian Hospitals Industrial Association & Ors applied – Commission can make interim orders if there is a serious question to be tried and if balance of convenience favours making the order – CFMEU argued that if scope order for three agreements granted and accepted by employees, this would preclude its alternative two-agreement position – sought order that Unitywater ‘ceases and refrains from making any requests for employees to approve an enterprise agreement until FWC makes a decision on the substantive application’ – opposed by Unitywater who argued the question to be tried was weak – submitted arguments against three agreements apply equally in two and these led nowhere in advancing bargaining – issue of defective concerns notices raised – Unitywater contended interim order could also result in prejudicial delay – Commission held that the effect of the order as sought would be to re-open matter with fresh grounds – foundation for scope application considered weak due to notice of concerns not raising two agreement alternative – concerns notice likely defective – due to likelihood of causing delay and late nature of filing, Commission held that the balance of convenience weighed against interim order – application dismissed. Construction, Forestry, Mining and Energy Union v Northern SEQ Distributor – Retailer Authority t/a Unitywater
September 13, 2016
ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – application by Downer EDI Engineering Electrical P/L t/a Downer EDI Engineering for approval of the Downer EDI Engineering Electrical P/L Southern Region Electrical Services Enterprise Agreement 2016 – ETU opposed the approval of the agreement, on the basis that the agreement, when filed, was not signed in accordance with the requirements under FW Act and FW Regulations – Commission considered whether the agreement with signatures completed, filed after the 14 day period for an application under s.185(3)(a), be accepted (with an extension of time) under s.586 of FW Act – employee who signed agreement, only agreed to do so if his identity remained confidential, as he was concerned about victimisation for signing agreement – Commission followed decisions of Sustaining Works, McDermott and Brockman determining discretion to remedy signatory page of agreement exercised pursuant to s.586(a) – respondent argued delay in making valid application was attributable to applicant – Commission satisfied applicant endeavoured to file signed agreement and discretion to extend time for application was granted – Commission also satisfied it was appropriate in circumstances to issue separate Order supressing from publication and disclosure the employee’s signature, name, address and title contained in the signature page of the agreement and to supress the affidavit filed – approval decision to be issued with agreement. Downer EDI Engineering Electrical P/L Southern Region Electrical Services Enterprise Agreement 2016
