MODERN AWARDS – award modernisation – modern enterprise award – Sched.6, Items 4, 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – application by Commissioner for Public Employment (NT) to make modern enterprise award to replace sixteen pre-reform awards – Full Bench held long and distinct history of pre-reform awards a factor weighing in favour of making modern award – Full Bench also found due to large number of modern awards that would otherwise cover employees could lead to difficulties in enterprise bargaining – proposed award content and terms both weighed in favour of making enterprise award – no opposition to making modern enterprise award – although slight similarities with APS Award at lower levels, classifications and pay in pre-reform awards are enterprise specific – proposed award would maintain classifications and pay relativities – Full Bench considered consolidated and modernised enterprise award remained most suitable vehicle for fair and relevant safety net – support for proposed award significant – compelling case for making modern enterprise award – proposed award made in terms agreed between parties. Community and Public Sector Union (Northern Territory Public Sector) Award 2002 and Ors
August 29, 2016
MODERN AWARDS – 4 yearly review – s. 156 Fair Work Act 2009 – Full Bench – consideration of potential changes to Vehicle Manufacturing, Repair Services and Retail Award 2010 (VMRSR Award) in context of recent exposure drafts – considered proposal to transfer vehicle manufacturing section of VMRSR Award to Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) – parties opposed transfer – NRA and 4 yearly review Annual leave decisions considered – Full Bench held VMRSR Award does not support modern awards objective in ensuring simple, easy to understand, stable and sustainable award system that avoids unnecessary overlap – too complex and difficult to understand – detrimental in industry with large proportion of small and award-dependent employees – VMRSR Award effectively two awards in one which limits benefits – no satisfactory industry, occupational or functional dividing line between vehicle industry manufacturing in VMRSR Award and that in Manufacturing Award – majority of vehicle manufacturing businesses and employees covered by Manufacturing Award – consideration of impending cessation of vehicle manufacturing industry – ancillary manufacturing work undertaken in repair, service and retail businesses need not apply Manufacturing Award – parties to consider best way to transfer vehicle manufacturing section to Manufacturing Award – further considered modified shift length provisions – held 10 hour shifts should be default position and facilitative provisions can allow shifts in excess of 10 hours per day and up to 12 hours per day subject to revised safeguards – consideration of special provisions for vehicle salespersons regarding minimum and commission payments – parties’ agreed position adopted – hours worked in excess of 38 may attract payment of commission subject to reconciliation every 3 months – further considered break provisions for driveway operators, console operators and roadhouse attendants – held exposure draft resolved issues – structure of existing provision remains – clarified employer can determine if breaks taken but cannot decide whether the breaks taken – further considered overtime provision in exposure draft and potential confusion regarding payment of shift and annual leave loading to shiftworkers – held clause not ambiguous and does not require redrafting – further considered whether casual loading and penalty rates should be aligned for certain workers or amended to correct alleged past error in setting current rates – held history of provisions did not demonstrate any error that could be corrected using s.160 – held there may be relevant ‘work value’ considerations under s.156(3)-(4) to align classifications – casual classification relativities do not align to the relativities of the specified full-time workers – parties to make submissions on issue before determination by Full Bench. Vehicle Manufacturing, Repair Services and Retail Award 2010
August 29, 2016
MODERN AWARDS – award modernisation – s. 157 Fair Work Act 2009 – Full Bench – Commission initiated of its own motion under s.157(3)(a) FW Act the making of a modern award to be known as Australian Government Industry Award 2016 (AGIA) – Commission did so because a number of Commonwealth employers previously made applications for Commission to make a modern enterprise award to replace awards that applied to them – employers indicated a preparedness to be part of an industry award overseen by Australian Public Service Commissioner – Commission considered and determined the making of AGIA was necessary to achieve the modern awards objective – AGIA made in terms agreed between the parties – award made. Australian Government Industry Award 2016
August 23, 2016
Twenty-four unfair dismissal and labour dispute cases will be heard by the Fair Work Commission today. The full list is: Essential Energy (Campbell, Furley, Milford, Rhodes), De Rucci International Pty Ltd (Wang), Skilled Workforce Solutions NSW Pty Ltd (Bender), Mt Arthur Coal Pty Ltd (Parish), Broken Hill Operations Pty Ltd (Remmert), Toll Holdings Limited (Pawlowski), Carmel Adventist College (Lever), Serco Australia Pty Limited (Vather), Office of the Fair Work Building Industry Inspectorate (Roberts), JE & J Robinson Pty Ltd (Eyre), RTE Trading Pty Ltd as Trustee for RTE Unit Trust (Pain), Ballyglisheen Pty Ltd (Oswin), Grogans Chemmart Pharmacy (Ansett), K & S Fighters Pty Ltd (Millard), Toyota Motor Corporation Australia Limited (Wessley), BizHealth Consultants Pty Ltd (Freedom4life), Commonwealth of Australia (represented by and acting through the Australian Taxation Office) (Economou), Stadium Turf Management Pty Ltd (Catanzariti), Northside Community Service Limited (Isturiz-Moron), The Polygon Group Pty Ltd (Ivka), Altus Traffic Pty Ltd (McRurai).
August 22, 2016
A lightweight day for labour disputes and unfair dismissal cases. Only 18 applicants will be heard today. The full list is: Serco Australia Pty Limited (Vather), Meela Childcare Centre Inc (Overstone, Paulus), WCH Services Pty Ltd (Maat), Comdain Gas (Aust) Pty Ltd (Prestileo), Toyota Motor Corporation Australian Limited (Wessley), Mercy Public Hospital Inc (Born), UGL Engineering Pty Ltd (Ladd), The Trustee for MJ Hooper Trust (Nicholls), Northern SEQ Distributor – Retailer Authority (Robertson), ALDI Distribution Centre (Hawkins), Spotless Facility Services Pty Ltd (Yan), NCCA Trading Pty Ltd (Mackie), Holliwell Pty Ltd (Brown), Next Business Telecommunications Pty Ltd (Hindson), National Retail Association Limited (Campitelli, Nimmo), Commissioner for Public Employment (Kakakios).
August 19, 2016
Seven of today’s labour dispute applications emanate from a single employer (Superpartners Pty Ltd). The full list includes: Candor Stationary Manufacturers Pty Ltd (Nguyen), Town of Port Hedland (Pinzone), Cape Australia Onshore Pty Ltd (Bowell), Victoria University (Bleas), Superpartners Pty Ltd (Ayaz, Bronqueur, Harder, Kaur, Matthews, Ruff, Wilson), OSSA Services Pty Ltd (Mahoney), Lovisa Pty Ltd (Carthy), Vocus Communications Limited (Hogan), Sportscover Australia Pty Ltd (Lamb), 23 Digital (Sedaghatkish), BHP Billiton Iron Ore Pty Ltd (Babic), Hume City Council (Grenfell), Davidson Cameron Clydesdale Pty Ltd (Lloyd), Okee Dokee Coomera Rivers Early Learning Centre (Cupples), Cardinal Seafoods Pty Lt (Dyson), Australian Red Cross Inc (Slater), Seven Network (Operation) Limited (Dovico), Australia – China Commerce and Industry (Wang), Turramurra Supermarkets Pty Ltd (Hawke), Full Face Orthodontics Pty Ltd (Barragan Moral), Lovisa Pty Ltd (Carthy), Mercato Enterprises Pty Ltd (Joseph), Affordable Fitness Balmain (Raffel-Smithson), Rio Tinto Shipping Pty Ltd (Perry).
August 19, 2016
TERMINATION OF EMPLOYMENT – contract for specified term – costs – ss.394, 400A, 611 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance appellant’s application for relief from unfair dismissal was dismissed for jurisdictional reasons – appellant sought permission to appeal – alleged improper actions by the respondent, that the Commission made errors of fact and that the Commission did not adequately consider the impact his ill health had on his ability to prepare for the first instance hearing – appellant refused to comply with Commission’s directions or provide an outline of submissions when seeking permission to appeal – permission to appeal was refused because nothing in the available information indicated an appeal would be in the public interest – respondent applied for appeal costs under ss.611(2) and 400A of FW Act – appellant did not comply with directions to provide submissions and evidence in reply for the costs application – did not attend the nominated hearing date – sought a lengthy adjournment supported by medical certificates – Bench decided to determine the costs application without submissions by the appellant on 14 June 2016 because appellant was only required to provide a written submission and had demonstrated he could do this in prior correspondence on 15 May 2016 – Bench first considered s.611(2) – respondent submitted the appeal was without merit – no arguable point of law – no matter of public interest or a substantial error of fact – no reasonable prospects of success due to the deficiencies in the grounds of appeal – held appellant had provided unsupported grounds of appeal that challenged the factual and legal basis of the first instance decision – held grounds could have been arguable if supported by proper submissions and the jurisdictional issues may have meant permission to appeal could have been granted – hence no costs ordered under s. 611(2) – Bench then considered s.400A – considered whether s.400A applies to unfair dismissal appeals – held an appeal against an unfair dismissal decision is a proceeding to enforce the Commission’s duty to decide an unfair dismissal remedy under Pt. 3-2 and hence s.400A does apply to appeals against a decision of a Pt.3-2 application – held history and legislative intent supports this interpretation – respondent submitted appellant engaged in numerous unreasonable acts and omissions that caused them all of their appeal costs – Bench held appellant acted unreasonably in not filing an appeal book and submissions – applying to adjourn hearing dates at late notice and not attending hearing dates when the material demonstrated he was not incapable of attending – held this caused the respondent to incur costs to attend a second hearing only because they had to prepare for one hearing anyway – costs of $2,500 ordered. Appeal by Gugiatti against decision of Williams C of 9 April 2015 [[2015] FWC 2447] Re: SolarisCare Foundation Ltd
August 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for failing to disclose second job as Uber driver – applicant submitted he was not an Uber driver but it was his wife’s franchise who he provided help to during busy periods – respondent argued express term of employment contract required employees to seek permission for second job – further argued that Uber driving interfered with fitness for work and applicant hindered investigation process – applicant provided with ample opportunity to negotiate with employer regarding Uber driving – applicant of the view that even if Uber driving constituted second job, not seeking permission was a genuine mistake – Commission of the view that ss.387(a) – (h) FW Act satisfied – applicant unreasonably refused to provide Uber driving records to respondent – there was a lack of transparency and cooperation from the applicant by denying the truth and misleading the employer – dismissal not harsh, unjust or unreasonable – application dismissed. Jacob v West Australian Newspapers Limited t/a The West Australian
