GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance appellant’s application dismissed due to being lodged 55 days late – appellant argued an error of law was made by Commission in failing to take into account medical evidence to support the reason for delay – submitted that had this been taken into account, a different conclusion would have been reached about whether exceptional circumstances existed – further submitted it was in the public interest to grant permission to appeal – Full Bench held that while submissions on the appellant’s medical condition were not directly addressed under the heading ‘reasons for delay’, it was clear upon reading the decision as a whole the Commission had regard for her medical history – as such the appellant did not identify any error in the decision meeting the criteria for appealable error – House v The King applied – no utility to granting permission to appeal, as even if it were successful there is no reasonable prospect an extension of time would be granted, due to medical evidence not satisfying the test for exceptional circumstances – noted the appellant’s medical condition did not impede her ability to file an unfair dismissal application and participate in a conciliation within the same period – held that decision of Commission not counter-intuitive and did not manifest any substantial injustice – Full Bench not satisfied the appellant established an arguable case of appealable error, nor was it in the public interest to grant permission – permission to appeal refused. Appeal by Miller against decision of Lawrence DP of 15 June 2016 [[2016] FWC 3835] Re: Allianz Insurance Australia Ltd t/a Allianz
September 6, 2016
MODERN AWARDS – award modernisation – Sch 6A, Item 4 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – ss.134, 284 Fair Work Act 2009 – Full Bench – application by Victorian Public Service Grouping to make State reference public sector modern award known as ‘Victorian Public Service Award 2016’ – award will replace all existing instruments applying to employers covered by award – parties reached agreement on content of proposed award – terms settled in consultation with interested parties – Full Bench made award arising from these matters in terms published – satisfied terms of award consistent with legislative provisions including modern awards objective and minimum wages objective – award to operate from 3 October 2016. Victorian Public Service Award 2016
September 6, 2016
MODERN AWARDS – award modernisation – Sch. 6, Item 4 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – application by Australian Broadcasting Corporation (ABC) for modern enterprise award to replace ABC-CPSU Award 2000, ABC Journalists and Reporters Award 2000, and Actors (ABC Radio and Television) Award 2000 (Current Enterprise Awards) – application supported by the Community and Public Sector Union (CPSU) and Media, Entertainment and Arts Alliance (MEAA) – approach in Prime Minister for the Public Service adopted – ABC’s industrial arrangements had long and distinct history weighing in favour of making modern enterprise award – applicants submitted no single award would, but for Proposed Award, cover all employees covered by Current Enterprise Awards – coverage by multiple modern awards would lead to difficulties in enterprise bargaining – might also lead to unnecessary fragmentation of award safety net and failure to achieve modern awards objective – apparent from history of industrial arrangements that content of various industry specific modern awards did not reflect needs, terms and conditions of employees – Current Enterprise Awards provided base terms and conditions suited and adapted to applicant’s operations – Full Bench found ABC was unique organisation – no convenient alternative award – Current Enterprise Awards, once consolidated and modernised, remained most suitable vehicle for fair and relevant minimum safety net into future – Full Bench held modern enterprise award should be made. Australian Broadcasting Corporation Enterprise Award 2016
September 6, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – application for unfair dismissal remedy dismissed at first instance – appellant employed by respondent labour hire company to work at BHP Billiton Petroleum Inc (BHPB) site – dismissed after BHPB exercised contractual right to direct respondent to remove appellant from site – Commission held dismissal not harsh, unjust or unreasonable – appeal on grounds that Commission erred in finding question of valid reason did not arise on facts – Full Bench granted permission to appeal as appeal raised broader question regarding obligations of labour hire employer – Full Bench found BHPB’s instruction that appellant not permitted to work on site represented matter going to employee’s capacity to work – required consideration under s.378(a) of FW Act to determine whether valid reason for dismissal – Commission to consider and reach conclusions about each factor specified in s.387 [Mulhall] – held Commission erred in finding circumstances of dismissal did not give rise to consideration of valid reason – appeal upheld – matter redetermined – to be valid reason, must be defensible or justifiable on objective analysis of facts – Full Bench satisfied employer had valid reason relating to employee’s capacity and only exercised reason because genuinely unable to find suitable alternate employment – Adecco distinguished – having considered s.387 factors, Full Bench held dismissal not harsh, unjust or unreasonable – Commission order dismissing unfair dismissal application confirmed. Appeal by Pettifer against decision and order of McKenna C of 25 May 2016 [[2016] FWC 3194] Re: MODEC Management Services P/L
September 6, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – whether contract for a specified period of time – whether jurisdictional requirement of a dismissal is met in the circumstances of this case – applicant was a teacher employed for the teaching of a unit – applicant contended his employment was terminated 19 January 2016 – further submitted he was dismissed on 19 December 2015 – after applicant completed lectures on 4 December 2015 he became ill – various attempts were made by respondent to contact him via email and there was limited response – respondent then embarked on steps to have the various other tasks undertaken for the subject – attempted communications continued into the new year and were the subject of further email correspondence in January 2016 – communications also alleged to amount to termination of employment – Commission did not consider any of the activities of the respondent or the university to amount to the termination of applicant’s employment – scope of the contract was specified in the contract – communication appeared to have been intended to seek applicant’s input into final tasks rather than take them off him – after unsuccessful attempts were made the respondent took steps to make alternative arrangements – Commission found on evidence employment was terminated in accordance with the terms of the contract – was a contract for a specified period of time – found employment was not terminated on the employer’s initiative – termination not a dismissal within the meaning of s.386 of FW Act – application dismissed. Bleas v Victoria University
September 6, 2016
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 226 Fair Work Act 2009 – application by Laing O’Rourke Australia P/L for termination of agreement after nominal expiry date – part of collection of applications to terminate various agreements – Construction, Forestry, Mining and Energy Union is the union covered by the agreement and opposed its termination – no employees covered by agreement – neither party sought to update agreement since 2010 – no work to which agreement applies – applicant preparing business sale – no evidence termination would disadvantage any employees – pursuant to s.226 FW Act Commission satisfied must terminate agreement – not contrary to public interest – matters in s.226(b) taken into account – termination effective from 26 August 2016. Laing O’Rourke Australia Construction P/L & CFMEU (WA) – WA Rail Infrastructure – Rail Track and Associated Works Workplace Agreement 2010-2012
September 5, 2016
Today 31 claimants for work place justice will argue the merit of their collective arguments in the Fair Work Commission portals. The full list is: Nexus (Aust) Pty Ltd (Bonser), SGE Mutual Limited (Chmait), Hallsons (Wallis), HITV Communications Pty Ltd (Wan), Disability Services Australia Limited (Spencer), Cox Purtell Staffing Services Pty Ltd (Paris), R M Williams Pty Ltd (Cinque), University of New England & Duncan (MacKenzie), Future Look Landscaping Pty Ltd (Bradbery), Optical 88 Pty Ltd (Low), AWH Pty Ltd (Smith), Perth Training Centre Pty Ltd (Powell), Hallsons (Wallis), Toyota Motor Corporation Australia Limited (Wessley), Booran Dandenong Pty Ltd (Demetriou), Benkop Investment Trust & Wilkop Investment Trust (Donovan), SSL Security Services Pty Ltd (Kilden), AlphaQ Property and Constructions Pty Ltd (Luscott), Tase 0508 Pty Ltd (Tye), City of Monash (Gamble), Clata Kitchens Home (Lai), Palm Island Community Company (Castors, Friday), Central Queensland Services Pty Ltd (Engel), Brabus PA Franchising Pty Ltd (Drenski), Pleming Investments Pty Ltd (Moore), National Beverage Group Ltd (Bettany), SSL Security Services Pty Ltd (Thurgood & Skinner and Others), Regional Express Holdings Limited (Dajee), ASC Pty Ltd (Chippendale), Rand Transport Pty Ltd (Chittleborough).
September 5, 2016
An application for approval of the PB Demolition & Asbestos Removal Pty Ltd and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-2018 (s.185 – Application for approval of a single-enterprise agreement) will be determined by Commissioner Gregory in his Melbourne chambers.
