TERMINATION OF EMPLOYMENT – genuine redundancy – ss. 389, 394 Fair Work Act 2009 – respondent objected to the applicant’s unfair dismissal application on the basis that the applicant’s termination was a genuine redundancy and was consistent with the Small Business Fair Dismissal Code – Commission considered there was little utility in considering whether the respondent was a small business and the respondent advised it was no longer pursuing its original position in relation to the Code – Commission to consider whether the dismissal was a genuine redundancy – satisfied that the position held by the applicant was no longer required – Commission considered discussions between the parties prior to the applicant’s termination – written advice from the respondent regarding the applicant’s termination was not indicative of the respondent’s preparedness to review its position – Commission therefore not satisfied that the consultation requirements of the Act had been met – respondent would have been required to provide redeployment opportunities to the applicant – jurisdictional objection dismissed. Cunningham v Scotia Inspection Consultants P/L t/a Scotia Inspection Consultants
August 29, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged 13 days late – whether exceptional circumstances – ordinary meaning of exceptional circumstances considered [Nulty] – lack of awareness of capacity to make application not exceptional circumstance – directing efforts to looking for other employment also not exceptional – applicant had not established stress over termination meant she was unable to pursue matter – nor had applicant established she was so intimidated by former employer that this explained delay – Commission not satisfied there were exceptional circumstances – application for extension of time refused – application dismissed. Ford v Marketplace (Marion) P/L t/a San Churro Marion
August 29, 2016
TRANSFER OF BUSINESS – enterprise agreement – ss.318, 739 Fair Work Act 2009 – two applications – applications concerned both Smit Lamnalco Towage (Australia) P/L, Smit Marine Australia P/L (‘SMA’) and Australian Institute of Marine and Power Engineers (‘AIMPE’) – first application by AIMPE for Commission to deal with dispute concerning provisions of SMIT Marine Australia P/L and the AIMPE Enterprise Agreement 2015 (SMA Agreement) relating to transfer of business – parties unable to reach resolution about dispute application – second application by Smit Lamnalco for order under s.318 to be made relating to instruments covering new employer and transferring employees in the context of a transfer of business – decision deals with s.318 application (second application) – application concerned transferring SMA employees who were employed as engineers and covered by agreement – Smit Lamnalco proposed SMA employees be transferred to Smit Lamnalco, seeking an order that SMA EA will not cover Smit Lamnalco and any transferring employees and Smit Lamnalco Towage (Australia) P/L & AIMPE Marine Engineers Harbour Towage Enterprise Agreement (Smit Lamnalco EA) will cover any transferring employees – this order to be subject to undertakings set out in draft order by Smit Lamnalco – context of different employing entities on Smit group contracts with operations conducted by different companies within group – currently 36 engineers employed under SMA EA – Smit Lamnalco and SMA in process of integrating, with Smit Lamnalco seeking to have all its group operations conducted by single entity, all employees employed by single employer and one enterprise agreement cover all operations – AIMPE opposed application – application called for consideration of most appropriate agreement to cover operations of new employer having regard to factors in s.318(3) – new employer Smit Lamnalco favoured application of Smit Lamnalco EA out of its desire for uniformity and unity of purpose with respect to safety and operating practices, especially when employees are transferred between ports – Commission considered its reasons for supporting change as logical and well-intentioned – employees did not support change due to wanting opportunity to bargain for new enterprise agreement to apply to Gladstone operations – disadvantage to employees of having their enterprise agreement extended by 12 months without any counterbalancing benefit and loss of opportunity to take protected industrial action – Commission considered that while existing benefits of Gladstone agreement intended to continue by way of undertaking, loss of an opportunity to support claims with protected industrial action must be given weight – no significant economic disadvantage to Smit Lamnalco by inheriting SMA EA – held while understandable benefit in bringing operations under one agreement, as parties are not agreed on rationalisation of agreement coverage all attempts should be made to achieve outcome through bargaining – Commission not persuaded appropriate to make orders sought – application dismissed. Smit Lamnalco Towage (Australia) P/L
August 29, 2016
TRANSFER OF BUSINESS – enterprise agreement – s.318 Fair Work Act – application for order relating to instrument covering new employer and transferring employees – application concerned employees covered by SMIT Marine Australian P/L and MUA Enterprise Agreement 2015 (expired 5 April 2016) – employer sought order agreement to not cover transferring employees with employees to be covered by Smit Lamnalco Towage (Australia) P/L & Maritime Union of Australia Enterprise Agreement 2014 (expiring 30 June 2017) subject to undertaking to preserve conditions – difference in expiry date meant agreement effectively extended for 12 months – default position agreement continues to cover transferring employees – consideration given to most appropriate agreement to cover operations factors in s.318 of Act – employees disadvantaged by agreement extending 12 month without opportunity to bargain new agreement – disadvantage to extend agreement speculative as outcome negotiations not known – real disadvantage in lost opportunity to support claim with protected industrial action – extended agreement provided stability in transfer – some productivity advantage – no significant economic disadvantage – public interest not significant – held advantage of bringing all operations under one agreement should be achieved through bargaining – orders not made – application dismissed. Smit Lamnalco Towage (Australia) P/L
August 29, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 of Fair Work Act 2009 – appeal – Full Bench – dispute arises under respondent’s Enterprise Agreement – number of persons employed on permanent basis with prior contiguous periods of service as casuals, working on regular and systematic basis with no break between periods of service – workers employed as casuals and paid wage rate of permanent employee as specified under agreement – employees terminated by reason of redundancy – Riordan C found prior contiguous service did not count towards calculation of period of service as they were paid loading to compensate them for notice and redundancy payment entitlements – Cockerel considered – Act does not exclude period of regular and systematic casual employment from definition of service or continuous service for purpose of severance payments – held Commissioner in error – permission to appeal granted – appeal allowed – decision of Riordan C quashed. Appeal by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) against decision of Riordan C of 22 February 2016 [[2016] FWC 638] Re: Donau P/L
August 29, 2016
MODERN AWARDS – award modernisation – Sched. 6, Item 4 Fair Work Act 2009 – Full Bench – application for modern enterprise award to replace the CSIRO (Salaries and Conditions of Service) Award 1999 – whether modern enterprise award should be made – application supported by CSIRO Staff Association and the AMWU – Full Bench adopted approach in Public Service v CPSU and Ors – long and distinct history of current enterprise award – no single award that would, but for the proposed award, cover all employees covered by current enterprise award – content of various industry specific awards did not reflect needs, terms and conditions of employees – proposed award covered activities in the relevant industry (Coleambally Irrigation Co-operative Limited) – enterprise specific terms and conditions applied to employees of applicant – terms and conditions in Miscellaneous Award 2010 did not provide fair and relevant minimum safety net for purposes of BOOT – Miscellaneous Award 2010 not created or designed to be universal safety net but to be transition point to another modern award whose coverage may require review – no opposition to application – held modern enterprise award should be made. Commonwealth Scientific and Industrial Research Organisation – Re CSIRO (Salaries and Conditions of Service) Award 1999
August 29, 2016
MODERN AWARDS – award modernisation – modern enterprise award – Item 4, Sched. 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – application for a modern enterprise award to replace the Australian Nuclear Science and Technology Organisation (General) Award 2000 – whether modern enterprise award should be made – ANSTO unique organisation – no convenient alternative award that can be said to better satisfy modern awards objective – rationale for existence in history of enterprise instrument remains current today – remains most suitable vehicle for fair and relevant minimum safety net into future – modern enterprise award should be made in circumstances – order to be settled by member of Full Bench. Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016
August 29, 2016
MODERN AWARDS – award modernisation – Sched. 6, Item 4 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – full bench –application to make modern enterprise award to replace Australian Federal Police Award 2002 (Current Enterprise Award) – Commonwealth Employment (Protective Service Officers) s.170MX Award 2001 (MX Award) not pursued as not instrument capable of modernisation – Prime Minister for the Public Service adopted – applicants submitted Proposed Award would cover all employees covered by Current Enterprise Award – coverage by number of modern awards would lead to difficulties in enterprise bargaining and unnecessary fragmentation of award safety net and failure to achieve modern awards objective – content of various industry specific modern awards did not reflect needs, terms and conditions of employees – terms and conditions which applied to employees covered by Current Enterprise Awards set out in two instruments Australian Federal Police Enterprise Agreement 2012-2016 and Australian Federal Police Executive Level Enterprise Agreement 2016-2019 – specific terms and conditions reflected in Current Enterprise Award that applied to employees – if modern enterprise award not made classifications and established pay relativities would be lost and instead obtained from modern awards with more general application – Full Bench found Australian Federal Police unique organisation – no convenient alternative award – history of Current Enterprise Award disclosed rationale for its existence which remained current today – held MX Award not an instrument capable of modernisation and Current Enterprise Award capable of modernisation – held both instruments be terminated and Proposed Award be made in terms agreed between the parties as further amended and provided by Commission on 22 July 2016. Australian Federal Police; Australian Federal Police Award 2002; Commonwealth Employment (Protective Service Officers) s.170MX Award 2001
