A light day comprising a mere seventeen labour dispute applications faces the Fair Work Commission today. The full list is: ITWire Pty Ltd (McDonald), CMIB Insurance Services P/L (Finemore), Mt Arthur Coal Pty Limited (Muller), Luxury Fashion Group Pty Ltd (Harkness), Aged Care Services Australia Group Pty Ltd (Dafallah), Canis Loopus Pty Ltd (Silverli), Broadspectrum (Australia) Pty Ltd (Argyle), Frosty Boy Australia Pty Ltd (Carr), Cairns Property Shop Pty Ltd ATF B & J Trust (Cook), Ballyglisheen Pty Ltd (Oswin), Industrious BMP Pty Ltd (Richards), Skyrail PTy Ltd (Were), Tox Free Australia Pty Ltd (Reay), Bicycle South Australia Inc (Bridge), Marketplace (Marion) Pty Ltd (Ford), Indigenous Land Corporation (McCaffrey), AWH Pty Ltd (Smith).
August 12, 2016
Thirty-two unfair dismissal and labour disputes will challenge the Fair Work Commission today. The full list is: Java Dale Pty Ltd (Magendra), Cozzo Nominees (Cozzo), Benkop Investment Trust & Wilkop Investment Trust (Donovan), Bakersfield Holdings Pty Ltd (Colledge), NAB (Ermenegildi), Jeld-Wen Glass Australia Pty Ltd (Edwards), Turi Foods Pty Ltd (Nipoe), Nelson (Aust) J A Pty Ltd (Lau), ACN 129540950 Pty Ltd (Folino), The University of Newcastle (Wilks), Mt Arthur Coal Pty Ltd (Parish), Comdain Gas (Aust) Pty Ltd (Prestileo), Lemanda Pty Ltd (Arora), Tazzy Tyres Accessories Pty Ltd (Crossin), Made To Print Pty (Ferreira De Castro), Ondene Pty Ltd (Breitfuss), Australian Broadcasting Corporation (Cafe & Himmelhoch-Mutton), Hotline IT Pty Ltd (Cliffe), Broken Hill Operations Pty Ltd (Remmert), Northern Beaches Council (Curtis), South Eastern Sydney Local Health District (Naicker), Menzies International (Aust) Pty Ltd (Shreshtha), Churches of Christ Community Care (Carr), Sydney Trains (Steck), Tomizone Limited (Wu), Toll Energy Logistics Pty Ltd (Gibson), Ledge Point Country Club (Lead), The Jewellery Group Pty Ltd (Cocks), ISS Security Pty Ltd (Bennett), Ludowici Sealing Solutions Pty Ltd (Koulouris), Sandfort Pty Ltd ATF The Sandfort Trust (Miller), CM landolo Pty Ltd (Walker).
August 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 – dispute concerned the question of whether there is any impediment arising from the agreement to the Metropolitan Fire and Emergency Services Board (MFB) implementing a decision it has made to terminate the employment of a recruit firefighter, Mr Duggan – when the MFB notified Mr Duggan of its intention to terminate his employment, he was within a three month probationary period of employment – case made by the MFB was that Mr Duggan was an unsuitable employee for ongoing employment past the end of a probationary period – during the recruitment process, Mr Duggan was asked to obtain and provide to the MFB a National Police Certificate – certificate provided was sourced from Victoria Police, was dated 16 September 2015 and advised that ‘[a]t the date of issue there are no disclosable court outcomes recorded’ – after commencing employment Mr Duggan was the subject of adverse findings against him by the New South Wales Civil and Administrative Tribunal (NCAT) – NCAT decision concerned Mr Duggan’s practice as an osteopath in New South Wales – complaints by the New South Wales Health Care Complaints Commission (HCCC) of unprofessional conduct and professional misconduct – Mr Duggan had been charged with a number of counts of indecent and sexual assault relating to female patients in 2010 – Mr Duggan was acquitted in the subsequent criminal proceedings in 2012 – matter became the subject of a dispute between the parties, including a formal dispute for the purposes of the agreement notified to the MFB by the United Firefighters’ Union of Australia (UFU) on Mr Duggan’s behalf – Mr Duggan was stood down and required not to report for duty until further notice – MFB decided that Mr Duggan’s employment should be terminated and forwarded him a letter to that effect – exchanges between the UFU and the MFB failed to resolve the matter – Mr Duggan and the UFU (the respondents) put forward that the MFB had failed to follow the proper processes of the agreement insofar as it provided processes for consultation and termination of employment – respondents argued that the MFB was not entitled to terminate for the reasons it had chosen because it failed to consult with them about matters which the respondents say are unilateral alterations to the MFB Recruitment Police Criminal History Check Policy – Commission considered that the proper characterisation of the dispute was: ‘1. whether or not there was a failure by the MFB to follow any process mandated by the Agreement with respect to the termination of Mr Duggan’s employment; 2. whether the dispute the subject of this proceeding is resolved; and 3. whether the decision to terminate the employee’s employment can therefore now be implemented by the MFB’ – necessary to consider whether the MFB followed the processes mandated by the agreement in relation to its intention to dismiss Mr Duggan – evidence did not lead to a finding that the MFB sought to unilaterally amend its Police Check Policy by introducing a new and additional criterion – Commission held that by seeking to terminate Mr Duggan’s employment within his probationary period of employment for events that occurred prior to employment, and which came to its notice after employment had commenced, and which were not reported by Victoria Police in the National Police Certificate it issued, the MFB seeks to depart from the well accepted meanings of ‘probation’ and ‘probationary employee’ – considered that the dispute was not resolved, with there being a need either for consultation over changes to the MFB’s use of ‘probation’ and ‘probationary employee’ or, if that is considered not appropriate, for appropriate action to deal with Mr Duggan’s conduct after employment commenced – threshold issue was whether Mr Duggan’s conduct, at any stage, warranted dismissal – Commission did not consider that it did – found that while perhaps Mr Duggan should not have been employed in the first place, no warrant existed from his pre-employment conduct to dismiss him – held that Mr Duggan’s conduct after employment commenced, in his failure to notify the MFB of the NCAT decision, while not to be condoned was not sufficient to dismiss him, for the reason it did not undermine his suitability for ongoing employment or the viability of continuing the employment relationship – MFB failed to ask pertinent questions of an applicant about matters disclosed to it prior to employment – Mr Duggan’s work as an osteopath was demonstrably professionally unsound – Mr Duggan may not provide any ‘health service’ until such time as a reinstatement order is made by NCAT – Mr Duggan may not perform Emergency Medical Response (EMR) work for the MFB either now or in the future, unless and until the NCAT order is amended or revoked program – Mr Duggan has appealed the NCAT decision, with the hearing set down for 29 September 2016 – MFB submitted that EMR function is a core function of the MFB – held not being available for EMR work would not be a ground for termination of employment during ‘probation’ or as a ‘probationary employee’ – Mr Duggan’s failure to bring the NCAT decision to the MFB’s attention was likely an act to conceal the decision from his new employer – Commission considered that Mr Duggan can and should be sanctioned for failing to have brought the decision and Orders to the MFB’s attention – agreement provides procedures for counselling and discipline (clause 26), and termination of employment (clause 27) – considered it to be appropriate and consistent with the parties’ legal rights and obligations under the agreement for Mr Duggan’s probationary period to be extended for between 3 and 6 months – also considered it to be consistent with the Police Check Policy and appropriate in all the circumstances for Mr Duggan to be formally asked by the MFB to disclose in writing all charges and arrests since turning 18 years of age, whether or not they were withdrawn or he was acquitted, and that he be required to respond to that enquiry by way of a Statutory Declaration – further considered it to be consistent with the agreement and appropriate that Mr Duggan be warned in writing, in the form of a first and final warning, that any future misconduct by him may lead to his dismissal, and that such warning be kept on file for 12 months from the date on which it is issued and acknowledged by Mr Duggan – parties directed to confer on these matters and endeavour to agree to the form and substance of each – in the absence of agreement the matter will be relisted for further hearing. Metropolitan Fire and Emergency Services Board v Duggan and the United Firefighters’ Union of Australia
August 12, 2016
ENTERPRISE BARGAINING – scope order – bargaining order – ss.229, 238 Fair Work Act 2009 – applications for scope and bargaining orders by applicant unions – decision issued in transcript followed by written reasons – applications sought to restrain respondent from conducting proposed ballot of employees in respect of proposed enterprise agreement known as Unity Water Industry Field/Outdoor Employees (Operations and Maintenance-Non-trade) Agreement – relevant ballot scheduled for 15 June 2016 – applications for interim orders heard 13 and 14 June 2016 – applicants argued respondent unilaterally decided to change scope of proposed agreement – bargaining representatives deliberately excluded from negotiations for proposed Agreement – respondent failed to provide information to bargaining representatives in reasonable timeframe – bargaining not proceeding efficiently or fairly because of scope advanced by respondent – respondent had engaged in capricious and unfair conduct – claimed demonstrated sufficient likelihood of success in scope applications to justify scope order for single enterprise agreement [Health Services Union] – originally one agreement for which bargaining started – fairness and efficiency better accommodated with single agreement – serious issues about overlap of function of employees and fairer grouping with one agreement – respondent claimed no serious question to be tried on good faith bargaining order or scope order – argued complied with good faith bargaining provisions and did not exclude bargaining representatives from meetings and communicated separate agreement was being pursued – applicants contended had they had complied with s.238(1)-(4) – respondent refuted this claim, in particular s.238(3) – claimed AWU relevant bargaining representative and was not provided notice by applicants – applicants argued any inconvenience arising out of cancellation of ballot would not outweigh significant bargaining rights which would be forgone should vote proceed before conclusion of substantive applications – respondents contended loss of opportunity to put matter to ballot and potential for delay for those employees who would be covered by Agreement in event of successful ballot – Commission found both serious question to be tried and balance of convenience favoured issuing of interim order pending resolution of substantive scope application for applicants – Commission did not consider applications seeking interim bargaining orders demonstrated prima facie case for interim order – held ballot to be delayed pending decision in scope applications. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) and Ors v Northern SEQ Distributor – Retailer Authority t/a Unitywater
August 12, 2016
ANTI-BULLYING – bullied at work – reasonable management action – risk to health and safety – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant alleged bullying by two co-workers which posed a real and significant threat to his health and safety – respondent submitted various incidents relied on by applicant did not constitute bullying within the meaning of FW Act, the applicant had not been subjected to unreasonable behaviour, the alleged behaviour did not create a risk to health and safety, and that the actions taken by management were reasonable management actions carried out in a reasonable manner – the fact that applicant was earlier certified as being unfit for work was relevant and indicative of risk to health and safety, but was not conclusive in its own right, as relevant medical practitioners were dealing with combined impact of a range of work and non-work factors – Commission held that many of the incidents relied on by the applicant were not supported by evidence and did not constitute unreasonable conduct, but that three incidents could potentially be considered unreasonable behaviour – on balance, Commission not satisfied that these incidents were unreasonable behaviour within the meaning of FW Act – Commission suggested that observations made regarding respondent’s workplace grievance procedures and role of middle management be considered by management. Mr Perez
August 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about selection and consultation in relation to redundancy of AMWU shop steward – AMWU filed application for Commission to deal with dispute in accordance with Disputes Resolution Procedure of The Longford Gas Conditioning Plant Project Construction Agreement 2013 between CBI Constructors P/L and the AMWU, AWU, CEPU and CFMEU – dispute concerned downsizing of CBI workforce and dismissal of shop steward by way of redundancy – contended by CBI that Commission lacked jurisdiction to deal with dispute – CBI submitted the subject matter was not one that could be dealt with under clause 15, mandatory procedural steps for attempting to resolve the dispute had not been followed, and the filing of the application after dismissal meant the Commission lacked jurisdiction – held that AWMU followed procedure under clause 15 by raising the dispute at the appropriate workplace level – also held that once it was informed that CBI did not consider the subject matter of the dispute one to which clause 15 applied, it was reasonable and proper for AMWU to refer the unresolved matter to the Commission – Commission satisfied the matter one which arose under the agreement, due to AMWU informing CBI of a dispute regarding the pending termination of the shop steward while they were still employed – authorities are clear that where a dispute arises before an employee is terminated the Commission can deal with it even when the application is filed after dismissal takes effect – held that application is within the jurisdiction of the Commission and the Commission should exercise its jurisdiction to deal with the dispute. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) v CBI Constructors P/L t/a CB&I
August 12, 2016
CASE PROCEDURES – evidence – production of documents – ss.394, 590 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for serious misconduct based on allegations of sexual harassment toward a number of crew members – applicant sought production of documents on 10 and 11 May 2016 – respondent objected to order being made with respect to documents in 1, 3 and 4 based on legal privilege – further submitted that order for documents was nothing more than a ‘fishing expedition’ – both parties agreed that principles set out in [Commissioner of Taxation v Pratt Holdings P/L] applied – ‘if the dominant purpose for which a document comes into existence is to get legal advice, the document is privileged, and the time at which ‘dominant purpose is determined is the time the document came into existence’ – in exercising its discretionary power in s.590(1) FW Act, the Commission must do so in a manner which is fair, just and quick, informal and avoids unnecessary technicalities’ – Commission found from material provided by parties, applicant terminated due to his conduct – found applicant terminated following investigation into various allegations – applicant confined order only to the investigation which led to his dismissal – Commission found request for documents not a ‘fishing expedition’ but appropriately narrow and relevant to dismissal – considered whether documents attracted legal advice privilege as per [Pratt] – found that documents created had to be created regardless of any intention to seek advice – also found that may have been some parts of those documents that were only created for purpose of receiving legal advice – Commission found in first instance, documents in 1, 3 and 4 to be provided to Commission unredacted – Commission will subsequently determine whether part or all attract legal professional privilege. Applicant v Respondent
August 12, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant’s employment terminated due to serious misconduct – respondent raised four allegations against applicant – allegation one and two related to sale and discounting of shoes – allegation three related to breach of layby policy – allegation four related to falsification of time keeping records – applicant asserted dismissal was unreasonable because he was given insufficient notification of the allegations and lured into a meeting by deliberate deceit on the part of his managers – further asserted dismissal was unjust because evidence did not support finding that the applicant had engaged in deliberate criminality, but rather he had failed to process funds in a manner which represented an aberration – respondent asserted applicant was given details of allegations and was provided with full opportunity to respond both at the meeting of 21 September, and a further meeting held on 9 October 2015 – respondent further asserted applicant’s conduct constituted serious misconduct – Commission found only one of respondent’s allegations of serious misconduct could be sustained – employer’s finding of serious misconduct in respect to the allegation regarding applicant failing to properly record and receipt the cash provided in respect to the purchase of the New Balance shoes established valid reason for the dismissal of the applicant – however the manifestly erroneous approach adopted by the employer when dealing with what has subsequently been established to be both serious misconduct and significantly less serious misdemeanours meant that there was no proper basis on which to summarily dismiss the applicant – dismissal found to be unreasonable and unjust – compensation issued. Jimenez v Accent Group t/a Platypus Shoes (Australia) P/L
