RIGHT OF ENTRY – application for permit – ss. 512, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission refused application for entry permit to be issued to Mr Davis of the CFMEU – held he was not fit and proper because he was penalised in Cradden for participating in conduct in disregard to industrial laws – no evidence he had changed his attitudes – no evidence of remorse or contrition for prior actions – community could not be confident his past conduct and attitudes would not be exhibited in relation to an issued entry permit – CFMEU did not directly address concerns – appellant subsequently sought permission to appeal – submitted Commission failed to take into account whether imposition of conditions would render Mr Davis fit and proper – appeal in public interest because of relevance to future like applications – lack of consideration of conditions was a jurisdictional error – respondent submitted appeal lacked merit – appellant did not raise issue or respond to Commission’s concerns at first instance – permit conditions would not have changed the result – respondent could still bring future applications to apply for a permit – Hatcher VP and Bissett C noted Commission did not generally consider the imposition of conditions on a permit under s.515 until an official was deemed fit and proper under s.512 [MUA v FWC] – suggested that the fitness and propriety assessment is in reference to all conditions upon the entry permit including conditions imposed by s.515 – proposed not to deal with this observation to finality because permission to appeal refused on other grounds – not in public interest – appellant did not propose any conditions that could help make Mr Davis a fit and proper person given Commission’s fundamental concerns – inappropriate to grant permission to appeal to allow the appellant to advance a merits case it did not advance at first instance – any conditions unlikely to alter Commission’s view that Mr Davis was fit and proper – appellant could make a fresh application without prejudice from the refusal to grant permission to appeal – Watson VP agreed with the grounds of the other Full Bench Members in refusing to grant permission to appeal – held Commission at first instance did not refuse to consider the imposition of conditions on the entry permit – rather considered the imposition of conditions was not relevant because Mr Davis’ fitness and propriety assessment would not be altered by the imposition of conditions – Commission did not err in its decision at first instance – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Richards SDP of 30 March 2016 [[2016] FWC 1984] Re: Director of the Fair Work and Building Industry Inspectorate
August 29, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 34 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection – applicant on fixed term contract and employment ended with effluxion of time not at initiative of respondent – applicant employed on initial fixed term agreement then second agreement with fixed term extensions – extensions instructed that presenting for next rotation following contract end date was acceptance of offer and contract would end if no further extension offered – final extension ended 29 February 2016 – expressions of interest (EOI) to continue working emailed to relevant employees 5 November 2015 – EOI open for six weeks – respondent sent Completion of Contract Notice by email on 10 February 2016 – applicant submitted did not receive EOI nor second employment agreement and two extensions but did receive email dated 10 February 2016 – submitted did not think he was employed pursuant to fixed term expiring 29 February 2016 – contended having passed probation he continued working – expected more direct communication and would have expressed interest had he known – respondent submitted applicant had not previously mentioned he had not received emails containing employment agreements, extensions and EOI nor had applicant made enquiries about first employment contract having come to an end – Commission considered Department of Justice regarding fixed term contracts – satisfied relevant documents were issued to applicant and engagement ended 29 February 2016 otherwise engagement would have terminated at earlier date – satisfied employment ended due to effluxion of time and not at initiative of respondent – jurisdictional objection upheld – application dismissed. Beaumont v Wilson Security P/L
August 29, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under University of Newcastle Professional Staff Enterprise Agreement 2014 (agreement) – dispute related to proper construction of clause 22.1.1 as to when employee may become detached staff member – University contended may notify employee that they are detached staff member when decision made that position will no longer be required in future – CPSU submitted University not permitted to issue notice to detached staff member unless and until detached staff member’s position no longer required – outcome would have practical implications because University already issued notices to various employees where decision made that their positions will no longer be required from September to October 2016 – Commission held because University requires positions and will continue to require them until September or October 2016, University not permitted to issue notice unless and until position no longer required – CPSU sought to have detachment notices withdrawn – Commission considered relief sought appropriate – order issued – application granted. The Community and Public Sector Union v University of Newcastle
August 29, 2016
GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – application received 13 days out of time – applicant Filipino citizen employed on visa as plasterer – applicant summarily dismissed on same day had spoken to CFMEU organiser who asked about wage rate – organiser called respondent who came to site for discussion – respondent called applicant to meeting that afternoon – respondent said he would buy applicant plane ticket back to Philippines because he had told organiser his pay rate – also had told organiser applicant not solid plasterer to justify pay rate – four days later applicant sent email to respondent apologising for trouble and begging for job back – no response to email – applicant contacted Philippines Embassy for advice – told not to lodge with Fair Work as would hinder attempts to resolve issues with respondent – Embassy sent email to respondent advising applicant had not violated visa conditions, termination illegal and applicant wants to finish contract with respondent – no reply from respondent – applicant went to Ombudsman – Ombudsman advised he go to Commission – Embassy staff told applicant both were same organisation – applicant went to ‘Migrante’ Filipino assistance service for advice and told about Commission – applicant lodged application on same day following appointment with Workplace Advisory Clinic at Commission – 21 day time limit passed – respondent did not dispute events – Commission found on balance lack of legal expertise, poor English and representative error acceptable reason for delay – applicant took steps to dispute termination – consideration of merits favour applicant – extension of time granted. Narce v Resi Basements P/L
August 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant terminated for misconduct, in particular an exchange with a manger in 2016 and a 2015 written warning in 2015 for aggressive conduct – applicant submitted he was terminated because of his desire for family friendly work arrangements and an earlier work-related injury – respondent submitted applicant was dismissed for pattern of conduct including aggression towards other employees over time, and a failure to acknowledge and address conduct – facts of matter heavily contested – Commission preferred evidence of respondent and concluded a valid reason for termination existed – applicant notified of and given opportunity to respond, notwithstanding his refusal to participate in some of the discussions – applicant’s father permitted to attend meeting as a support person – despite applicant’s submissions, no evidence of a WorkCover claim being a determinative factor in applicant’s dismissal – applicant’s on going injuries and family responsibilities relevant to harshness – Commission not satisfied dismissal harsh, unjust or unreasonable – application dismissed. O’Connor v Crown Equipment P/L
August 29, 2016
CONDITIONS OF EMPLOYMENT – take-home pay order – Item 9 Sched. 5 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – application for Commission to make a take-home pay order – Commission must be satisfied that a modern award applies to applicant and that there has been a modernisation-related reduction in take-home pay – application made reference to ‘New EBA’ rather than a modern award – Commission lacks jurisdiction to make take-home pay order in relation to the introduction of an enterprise agreement – applicant given opportunity to file further submissions but declined to do so – application dismissed. Conway v Visionstream P/L
August 29, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s. 739 Fair Work Act 2009 – dispute result of respondent decision to counsel academic staff for unsatisfactory performance in accordance with agreement – applicant argued were two questions to be answered – whether action related to performance (clause 53) could take place despite other processes in agreement not being followed (clause 64) – whether action relating to performance was undertaken correctly – applicant sought orders that respondent cease action against employees and clause 53 process be adhered to before clause 64 process commenced – respondent argued there were three questions to be answered – question one similar to applicant’s – two concerned who a supervisor was for purposes of agreement clauses in dispute – three was whether action being taken by respondent should cease – applicant argued provisions relating to disciplinary action cannot be enlivened until performance development process taken place – respondent submitted former relates to counselling for unsatisfactory performance and latter relates to on-going development processes – Commission found process in clause 64 do not have to be exhausted before process in clause 53 can take place – Commission of view clauses have distinct functions and operate separately although one might guide other – applicant argued in order to form a view that performance unsatisfactory supervisor needs full knowledge of performance against performance plan and supervisor is the same person under both clauses – respondent submitted supervisor should be narrowly construed and can constitute more than one person – Commission found Head of Department the supervisor referred to in both clauses – if supervisors had different meanings in both clauses, processes in clause 64 could not be relied on in clause 53 process – Commission found reports executed in accordance with clause 64 not a prerequisite to commencing process under clause 53 – respondent therefore need not cease action being taken – orders not granted – application dismissed. National Tertiary Education Industry Union v Monash University
August 29, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent argued applicant made redundant – applicant employed as work placement officer and first aid course teacher – two casual positions available at time of dismissal – had skills to be redeployed – applicant formally advised position to be made redundant – no consultation with applicant about consideration for redeployment – respondent denied applicant eight week period to investigate suitable redeployment options – Commission found dismissal not a genuine redundancy – held applicant unfairly dismissed – compensation to be ordered – parties to provide further submissions with respect to compensation. Pinnock v Federation Training
