ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applicant suspended from duty without pay for seven days by respondent – applicant raised a dispute under Aurizon (Western Australia) Rail Operations Enterprise Agreement 2014 (the Agreement) – applicant sought a declaration that the disciplinary measure was unfair, unreasonable and harsh in the circumstances; an order that the he be reimbursed for losses arising from the disciplinary measure; and any other orders the Commission deemed appropriate – respondent objected to Commission arbitrating dispute on the ground that the relief sought was beyond the Commission’s jurisdiction, as the relief sought would involve trespassing on respondent’s right under the agreement to discipline its staff – applicant submitted application was within Commission’s jurisdiction as the Agreement permits the Commission to ‘make a determination that is binding on the parties’ and s.739(4) FW Act authorises the Commission to exercise this power and make any order is considers appropriate – s.739(5) FW Act states that the Commission ‘must not make a decision that is inconsistent with…a fair work instrument that applies to the parties’ – Commission satisfied that a decision to arbitrate the matter and uphold the applicant’s case would involve a reversal of the respondent’s suspension of the applicant, which would be inconsistent with the Agreement – Commission satisfied it had no power to arbitrate matter – application dismissed. Lloyd v Australian Western Railroad P/L t/a ARG an Aurizon Company
August 19, 2016
CASE PROCEDURES – evidence – production of documents – ss.394, 590(2) Fair Work Act 2009 – application for relief from unfair dismissal remedy – order for AWH P/L to produce documents – application for production of documents concerned a list of staff turnover referred to in one of the respondent’s witness statements – submitted that production of documents necessary due to relevance, legitimate forensic purpose and because it was not oppressive or a ‘fishing expedition’ – respondent submitted that documents would need to be ‘created’ to comply, that the information was highly confidential and would breach its privacy policy and the Privacy Act (Cth) – also submitted that the application was an attempt to question the ‘character’ of their evidence that would result in a delay and disruption to the hearing – applicant submitted in reply that the purpose of obtaining the list was to test its veracity and to establish if the respondent followed correct procedure with each redundancy – Commission held that while other employees being made redundant may be evidence of context, it is only required to find whether the position of Business Development Executive was no longer required to be performed, as a discrete position, by the employer – further held that the issue of other employee’s circumstances would not be determinant of this – Commission not persuaded that the employment details of other employees whose employment ended on grounds of redundancy would assist it specifically in relation to the position of Business Development Executive – held that the applicant had the opportunity in cross examination to ‘test’ the veracity of the document as it was attached to the respondent’s witness statement – Commission exercised its discretion not to inform itself in the manner sought by the applicant pursuant to s.590(2) of the FW Act. Smith v AWH P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent submitted applicant’s termination was a case of genuine redundancy – respondent reviewed organisational structure and subsequently terminated the applicant’s employment on the grounds of redundancy – meaning of ‘genuine redundancy’ under FW Act considered – undisputed that employer no longer required applicant’s position to be performed by a discrete person because of changes in operational requirements of business – Commission agreed with respondent that no modern award or enterprise agreement applied to applicant – Commission nevertheless satisfied that respondent consulted with applicant about redundancy – applicant submitted it would have been reasonable for her to be redeployed into role of Finance Manager – respondent submitted it did not consider the applicant appropriate for the role – redeployment to role of Finance Manager would constitute a promotion – Commission satisfied decision not to redeploy applicant was reasonable – Commission satisfied termination of applicant’s employment was a case of genuine redundancy – application dismissed. Bwalya v PM Financial Services P/L t/a McKinley Plowman & Associates
August 19, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute related to same provision in two recently approved enterprise agreements: the Australian Paper (Enterprise) Agreement, 2016-2019 Maryvale Mill Mechanical Maintenance and Engineering Store (Maintenance Agreement) and the Maryvale Mill Electrical/Plumbing Maintenance Enterprise Agreement 2016-2019 (Electrical Agreement) – essence of dispute concerned finish times for dayworkers who work a 10 hour ordinary hour day in accordance with the roster set out in the table to clause 19.2 – clause 19.2 provides a clear start time for dayworkers but does not specify the finish time of either the eight hour days or the 10 hour days – employees contend that a dayworker working a 10 hour day is entitled to a 30 minute paid meal break which counts as time worked – employer contends a dayworker working a 10 hour day is entitled to a 30 minute unpaid meal break which does not count as time worked – Commission properly understood roster in table in clause 19.2 requires a dayworker to work the number of hours mentioned (either eight or 10) exclusive of any meal break – agreement does not specifically provide for an unpaid 30 minute meal break during a dayworker’s ordinary hours – the common understanding provides for an unpaid meal break of 30 minutes on those days in the roster where the dayworker is required to work eight ordinary hours – length of any meal break and the time of taking of a meal break by a dayworker working a 10 day is not set in concrete – appropriate that parties try and reach an agreement on these matters – in the absence of any agreement, Commission will determine the matter after hearing from the parties. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Ors v Paper Australia P/L t/a Australian Paper
August 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 application for relief from unfair dismissal – respondent claimed applicant misused company fuel card and mobile phone, used company’s photo of item to sell personal item on Ebay, downloaded company information to external hard drive, operated private business in breach of employment contract and poor performance following stocktake by loss of stock – Commission found that private use of the fuel card was reasonable provided he did not exceed the $600 monthly limit – found no misuse of company mobile phone provided that the $200 limit on telephone calls was not exceeded – Commission found misconduct for use of photo – however, not serious misconduct to form valid reason for dismissal – Commission found applicant did not compromise the company’s interests by backing up company laptop to external hard drive – permission was given to applicant to purchase item through private business for a friend from the company – poor performance was not established as there was no wrongdoing by applicant – Commission found no valid reason for dismissal – unauthorised deductions were made from applicant’s annual leave payment and there was failure to pay notice to which he was entitled – Commission ordered reinstatement and remuneration. Abboud v Lencrow Group P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant, who worked in coal mine, was driving underground personnel vehicle (SMV) carrying miners on three phase journey – applicant dismissed for allegedly deliberately ramming another SMV in phase 1 and tailgating an SMV in phase 2 – when miners alighted in phase 3, applicant brought his SMV to sudden stop close to miner – respondent’s investigation was deficient – insufficient evidence to sustain allegations in ‘show cause’ and termination letters – respondent obtained information regarding incident in phase 3 three months after termination – information discovered after termination could be relied upon to substantiate existence of valid reason [Shepherd] – serious breach of safety policies and procedures, whether deliberate or careless, will invariably result in finding that valid reason exists for dismissal [Northey] – Commission satisfied evidence showed applicant had driven SMV carelessly, recklessly and causing imminent safety risk when bringing SMV to sudden, jolting stop close to miner – this conduct was ‘serious misconduct’ and breached company safety and transport rules – valid reason for dismissal established – applicant not notified of changed reason for termination and not given opportunity to respond to allegation relating to conduct in phase 3 – lack of procedural fairness would normally lead to decision that termination was harsh and unfair, but this case is distinguishable on basis that it involved fundamental breach of safety, where employee wilfully, recklessly and carelessly placed safety of another employee at risk [Crozier distinguished] – applicant had not suffered detriment due to lack of procedural fairness – Commission found termination was not harsh, unjust or unreasonable – application dismissed. Cheetham v Helensburgh Coal P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – exceptional circumstances – application filed six days late – sent by Express Post from Whyalla to Adelaide two days before expiry of 21 day limit – applicant believed express post would arrive in time – envelope guaranteed next day delivery with a caveat requiring access to website to read it – website said where outside the express post network mail not covered by next day guarantee – different website page specifies the network covered – Whyalla is outside the network – another page had a delivery estimator – estimate based on Whyalla and Adelaide postcodes was that next business day delivery applied – fine print defined this as ‘available within the Express Post next business day delivery network, when lodged over the counter at a Post Office, or in a yellow street posting box’ – Whyalla Post Office sold express post envelopes and had two Express Post street post boxes – information provided was inconsistent – out of time lodgement delays due to issues with Express Post delivery tested in Leung v On Luck Chinese Nursing Home on appeal – and Yeoman v Liquip Victoria – both dealt with applications lodged one day out of time and found that postal delay constituted exceptional circumstances – Commission considered the circumstances weighed in favour of an extension of time based on exceptional circumstances – lodgement date for application extended to 1 July 2016. Van Soest v OneSteel Manufacturing P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – applicant alleged dismissal was harsh, unjust or unreasonable – respondent objected to application on the basis applicant was employed pursuant to a fixed-term contract with an end date of 29 February 2016 – respondent submitted applicant was extended twice – applicant contended that he did not receive the second employment agreement issued in September 2014 to cover the period 1 October 2015 to 31 October 2015 and contended he only received a copy of it after his application for unfair dismissal had been lodged – applicant further contended he did not understand why there was a cut-off date of 29 February 2016 – respondent contend there had not been a dismissal at the initiative of the employer and the last employment period expiring on 29 February 2016 came to an end with the effluxion of time – Lunn considered – Commission found applicant last period of engagement was for a fixed period between 1 December 2015 and 29 February 2016 – satisfied that applicants employment with Wilson Security ended on 29 February 2016 due to the effluxion of time and not at the initiative of Wilson Security – jurisdictional objection upheld – application dismissed. . Beaumont v Wilson Security P/L
