ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute between union and respondent employer under terms of Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (Agreement) – question to be determined whether respondent contravened clause 19(a) of Agreement when issued written warning to two convenors working within respondent’s mining operations – in 2013 parties recorded agreement as to types of shorts that would be made available to employees under the WA Mining Dress Policy (Policy) – convenors required to comply with Policy – union convenors disagreed with requirement for compliance – respondent made arrangements for implementation of Policy in March 2015 – employees notified compliance mandatory at this time – two convenors continued to wear clothing which was non-compliant after March 2015 – written warnings issued by respondent to convenors in April and November 2015 – when respondent issued written warnings to two convenors in November 2015 it breached requirement to observe status quo that applied from time respondent first raised dispute in August 2015 – requirement to observe status quo under clause 19(a) of Agreement – status quo normal conditions or arrangements in existence immediately prior to cause of dispute arising – Commission held this comprised of three elements – firstly, Policy had been implemented and on its face applied to all employees; secondly, convenors continued to wear clothing which did not comply with Policy; thirdly, respondent refrained from applying disciplinary consequences to two employees for non-compliance – found respondent’s acts of issuing written warnings to two convenors in November 2015 for non-compliance with Policy was failure to observe status quo – held contravention of clause 19 (b) of Agreement. Australian Workers’ Union v Alcoa of Australia Limited t/a Alcoa World Alumina Australia
August 29, 2016
GENERAL PROTECTIONS – jurisdiction – ss.14, 365 Fair Work Act 2009 – s.692(2) Queensland Industrial Relations Act 1999 – application for Commission to deal with a breach of general protections involving dismissal – applicant submitted she was dismissed for complaining about an unsafe work environment – respondent submitted Commission lacked jurisdiction to deal with application because it was not a national system employer – respondent falls within exclusions under s. 14 FW Act and therefore not a national system employer – s.692(2) Industrial Relations Act (Queensland) 1999 declares respondent not to be a national system employee – Commission satisfied respondent not a national system employee and that it lacks jurisdiction to deal with application – application dismissed. Millen v Brisbane City Council
August 29, 2016
CASE PROCEDURES – confidentiality – s.789FC Fair Work Act 2009 – application for order to stop bullying – decision deals with application by the s.789FC applicants for confidentiality orders – principal application under s.789FC – company of employees making s.789FC application involved in industrial dispute with union relating to terms and conditions of employment of persons employed by company – conduct about which complaint made in principal application involves allegations about conduct or behaviour of persons who are participating in picket outside work site entrance – applicants do not wish to be identified for reasons such as concerns relating to escalation of conduct about which they complain is directed towards them – Commission accepts concerns genuinely held and risk of escalation not merely theoretical – Commission persuaded an order protecting applicants’ anonymity in regards to their name and address should be made – orders sought by applicants would unduly restrict capacity of legal representatives of other parties to this proceeding – Commission considers order made must appropriately balance applicants’ concerns and interest of other parties to proceedings – applicants must advise Commission in light of order made whether they are prepared to participate in proceedings as applicants and give evidence before Commission – Commission will give consideration to interim order relating to conduct after advice from applicants received – order issued. Worker A, Worker B, Worker C, Worker D and Worker E
August 29, 2016
ANTI-BULLYING – reasonable management action – s.789FC Fair Work Act 2009 – Commission satisfied application valid – no doubt alleged incidents over three years took place – whether some or all incidents constitute actual bullying to justify making of order – whether incidents were reasonable management action carried out in reasonable manner – no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably, nor that the same specific behaviour be repeated [GC] – must be repeated unreasonable behaviour by the individual or individuals toward the applicant worker – ‘unreasonable’ is an objective assessment – test is whether management action is reasonable not whether it could have been more reasonable – applicant’s conviction that she has been bullied is genuinely held by her – applicant had limited understanding of what bullying is – her belief was based on what she felt – responses to emails about workload were courteous, co-operative and even friendly – emails not aggressive – Commission found applicant did not accept her manager’s authority and wanted to run her own race – no corroborating evidence of applicant being bullied at team meetings – manager may have been direct and forceful on occasions – action does not amount to bullying – despite failure to substantiate claims in investigation, employer still arranged mediation and counselling – Commission satisfied investigations sound, appropriate and reasonable – Commission of view applicant acted unreasonably – applicant argumentative and defiant as a witness, and only sought to answer questions which suited her case – manager’s evidence was truthful and believable – medical evidence does not support a causal link between how applicant felt and managers actions toward her – application dismissed. Cao
August 29, 2016
ENTERPRISE AGREEMENTS – termination of agreement – ss.313, 590(2)(c) Fair Work Act 2009 – interlocutory decision related to two applications by LCR Group P/L (LCR) to terminate LCR Group P/L/CFMEU Collective Agreement 2012 – 2016 and LCR Group and CFMEU Union Collective Agreement 2011 – 2015 (the agreements) – submissions sought from the Construction, Forestry, Mining and Energy Union (CFMEU) – CFMEU filed two applications for Orders for production of documents seeking documents relating to the sale of assets and the transfer of employment of any of LCR’s employees who were covered by the agreements within a three month period of the selling of the assets – LCR objected on the basis that the termination of the agreements in question have no bearing on the instrument that was transferred to the new owner – LCR submitted that the termination of the agreements has no implication for a transferable instrument that applies to a new owner, as there is no continuing nexus with the agreement that covered the old employer and its employees – Commission satisfied that the effect of a transfer of business upon an enterprise agreement is to widen the coverage of the instrument to extend to the new employer and the transferring employees, preserving the same coverage rules in the process – Commission satisfied that this construction supports the relevance of the items sought in the CFMEU applications – CFMEU asked to reformat applications in light of decision. Construction, Forestry, Mining and Energy Union v LCR Group P/L
August 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – s. 394 Fair Work Act 2009 – applicant dismissed for allegedly abandoning post on three occasions for purposes of sleeping whilst on shift and for falsification of entries in security log book – applicant submitted post not abandoned – submitted had to absent herself due to illness – denied having slept whilst on shift – contended was contactable at any time – contended respondent had no procedures to manage fatigue or illness for staff working overtime or alone – claimed had never been counselled about abandoning employment other than at time of dismissal – five meetings convened and employment terminated – respondent submitted protocol in place for when officer unwell – contended applicant recorded in logbook that patrol was completed when had in fact not been – applicant submitted she pre-recorded completion of patrol in log and had full intention of completing patrol after headache subsided – whether dismissal harsh, unjust or unreasonable – Commission held applicant not truthful in disclosing reasons for vacating post or in failure to correct security log book – considered Byrne, B, C and D, and Sipple to determine harshness – applicant lost long service leave as result of termination – 58 years of age and unlikely to be reemployed – held harsh consequences of itself do not render dismissal harsh, unjust or unreasonable – Commission accounted for difficulties that may arise for applicant but this did not displace views in relation to severity of conduct – dismissal not considered harsh, unjust or unreasonable – application dismissed. Bennett v ISS Security P/L t/a ISS Facility Services
August 29, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss. 386, 394 Fair Work Act 2009 – applicant alleged he was constructively dismissed by his employer following a course of conduct in which his employer persistently underpaid entitlements, refused to participate in Fair Work Ombudsman processes and threatened to dismiss him for pursuing his entitlements – respondent did not attend the listed Directions Conference and did not appear at the hearing – respondent contacted the Commission after the hearing had concluded and a conference was convened the following morning – respondent did not attend the conference call and was unable to be contacted – matter to be determined on the basis of the hearing – Commission found the applicant had no reasonable alternative but to resign and was therefore dismissed – Commission satisfied that an order for payment of compensation was appropriate in the circumstances – Commission considered the high measure of surety of the applicant’s continuing employment – satisfied that the applicant should be compensated for the differential in the earnings between his former position and current position for the applicable six month period – Order to be issued. Kaylock v Kajiks Showers & Robes P/L t/a SmartRobes
August 29, 2016
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application to stop industrial action proposed by union – whether in context of bargaining for new enterprise agreement industrial action notified by ASU would be protected – satisfied proposed industrial action would involve imposing band on ‘a planned interruption (customer shut down)’ – for period of time power to customers would be shut down – employer contention action not protected because notification only allowed for ‘indefinite ban’ difficult to understand – customer shut downs had been allowed to take place in unimpeded fashion between April and August 2016 – nothing in protected action ballot order that means there can only be one indefinite ban – satisfied proposed industrial action protected – authorised by protected action ballot order – notice requirements met – application dismissed. Jemena Asset Management P/L v Australian Municipal, Administrative, Clerical and Services Union
