ANTI-BULLYING – likely to continue – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant complained of intimidatory language and behaviour and unwarranted criticism by supervisors – the employer, TNT Australia P/L, submitted it carried out investigation and found allegations unsubstantiated – applicant absent from work on sick leave – employer’s representatives sought to raise performance and attendance issues without success due to applicant’s non-attendance – applicant did not attend a conference at work – applicant dismissed following day – also did not attend Commission hearing – employer filed application to dismiss on basis Commission does not have jurisdiction to make orders sought because applicant was dismissed – applicant had not taken steps to prosecute claim – Willis v Capital Radiology considered – Commission held where applicant was dismissed there was no risk applicant will continue to be bullied at work and matter has no reasonable prospects of success – application dismissed. Mr Belmar
September 13, 2016
TERMINATION OF EMPLOYMENT – remedy – compensation – ss.390, 392, 394 Fair Work Act 2009 – previous decision of Commission determined no valid reason given for dismissal of applicant and found dismissal unfair [[2016] FWC 4595] – remedy to be dealt with separately – Commission found reinstatement not appropriate – McCulloch v Calvary Health Care considered – WorkCover payments and contingencies discounted – no other adjustments – ordered compensation of $34,551 plus 9.5% superannuation. Mahoney v OSSA Services P/L t/a OSSA Services
September 13, 2016
ENTERPRISE BARGAINING – scope order – s.238 Fair Work Act 2009 – three applications for competing scope orders – Unitywater and AWU sought three separate agreements covering different groups of employers – ASU and remaining unions sought a single agreement – ASU provided unchallenged evidence it met good faith bargaining requirements – ASU and CFMEU contended Unitywater breached good faith by engaging in capricious or unfair conduct, failing to provide information in a timely manner and not recognising or bargaining with representatives – concluded Unitywater did not satisfy the requirements of s.238(4)(a) of FW Act and its scope application cannot succeed – ASU and CFMEU also submitted AWU had not met its obligation to disclose reasons for pursuing a change of scope – held to have satisfied this requirement – whether scope orders proposed promote fair and efficient conduct of bargaining – AWU argued ‘three scope’ agreement more efficient due to the fact it is ready to be put to a ballot – held that fairness and efficiency favoured this proposal – whether groups operationally or organisationally distinct – ASU submitted a ‘whole of enterprise group’ is fairly chosen – Cimeco applied – ASU submitted classification overlaps and a lack of organisational distinction – AWU provided breakdown of groups – held to be clear and rational organisational distinctness – employee survey results slightly favoured AWU proposal – Kwinana considered – held three scope order best fulfils the criteria of s.238(4) – Commission satisfied it was reasonable in all the circumstances to make the order sought by AWU. Australian Municipal, Administrative, Clerical and Services Union v Northern SEQ Distributor – Retailer Authority t/a Unitywater; The Australian Workers’ Union v Northern SEQ Distributor – Retailer Authority t/a Unitywater; Northern SEQ Distributor – Retailer Authority t/a Unitywater v Australian Municipal Administrative Clerical and Services Union and Ors
September 13, 2016
RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – dispute about frequency that permit holders of respondent enter applicant’s premises under s.484 of FW Act – applicant sought orders to restrict frequency and times at which entry is exercised by permit holders – further submitted that visits were a drain on their resources – respondent submitted that restrictions would impede permit holders visiting the Site and employees would be prevented from discussing or obtaining advice about enterprise bargaining process and workplace issues – Commission not persuaded that visits are particularly onerous, unreasonable or causes significant drain on applicant’s resources – requirement to escort permit holders was self-imposed one borne out of poor relations between applicant and respondent – the requirement to escort is not particularly time consuming – not satisfied that frequency with which permit holders enter applicant’s premises for discussion purposes would require unreasonable diversion of applicant’s critical resources – application dismissed. Zerella Holdings P/L v National Union of Workers
September 13, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – six applications for unfair dismissal – respondent advised applicants as part of a larger group of employees that they were to be made redundant – disputes were lodged with the Commission – respondent business practice was to employ full-time workers on core work and contractors on project work – dispute resolved by offering eligible full-time employees identified as redundant project work for four months – each signed a document accepting the fixed term extension – effectively deferring the redundancy – project work continued beyond this date – respondent said documents employees signed were clear that they were employed for fixed period and not for the duration of the project – unfair dismissal applications made – jurisdiction issue of genuine redundancy – redeployment to core activity not available – employees agreement with respondent shows employees accepted redundancies – Commission found redundancies genuine – applications dismissed. Johnston and Ors v Helensburgh Coal P/L
September 13, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute in accordance with grievance procedure in the Woolworths National Supermarket Agreement 2012 – two conferences held and the parties agreed to participate in further direct discussions – applicant later contacted the Commission seeking to have the application set down for arbitration – respondent submitted that the applicant had not followed the grievance procedure in the agreement – further submitted that the grievance procedure required both parties to agree to arbitration – Commission found that grievance procedure required agreement from the employer to arbitrate – Commission did not have any power in the circumstances to arbitrate the dispute – Commission suggested applicant continued to escalate her grievance through the grievance procedure – suggested the respondent provide the applicant with information of who to raise her grievance with and how to pursue it. Bonham v Woolworths Ltd t/a Woolworths
September 13, 2016
INDUSTRIAL ACTION – suspension of protected industrial action – endangering life – s.424 Fair Work Act 2009 – application for an order to suspend protected industrial action that was threatened for 90 days – threatened industrial action took the form of ‘an indefinite stoppage of work’ over a span of four hours on a specified day – applicant submitted the threatened industrial action would endanger or threaten to endanger the life, personal safety, health and/or welfare of school children left stranded by the cancellation of bus routes – TWU submitted there was no evidence to suggest a four hour stop work meeting met the ‘high threshold’ required to suspend the action – Commission objected to TWU’s frequent use of the term ‘high threshold’ as the duty of the Commission is to apply the words of the FW Act, and that to apply a synonym or otherwise reformulate the statutory language would likely cause the Commission to fall into error – Commission not satisfied evidence of applicant more than a generalised prediction – TWU submitted Commission entitled to have regard to measures applicant could have put in place to mitigate effect of industrial action, and that applicant had not made efforts to mitigate effect of industrial action – time still available to applicant to make such efforts – Commission not satisfied proposed stoppage will endanger life, personal safety or health, or the welfare, of the population or a part of it – application dismissed. Busways Blacktown P/L & Busways Blacktown North P/L and Ors v Transport Workers Union of NSW
September 13, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – application for protected action ballot order (PABO) – valid application made – respondent objected to application on the basis applicant had not genuinely tried to reach agreement – respondent further submitted that if PABO made, written notice be longer than three working days – respondent submitted preconditions in s.443(1)(b) of FW Act not met as applicant refused to provide reasons for rejecting multiple proposals advanced by respondent and consistently delayed bargaining – Commission considered failure or refusal to accept respondent’s claims does not mean applicant had not been trying to reach agreement – not an unusual phenomena of bargaining – totality of circumstances to be considered – no evidence put forward to demonstrate that the applicant had been dragging its heels – Commission of the view that applicant was genuinely trying to reach an agreement – respondent failed to discharge onus of establishing exceptional circumstances to extend period of written notice – protection ballot order to be issued – order made. Australian Workers’ Union, The v Winchester Australia Ltd
