ENTERPRISE AGREEMENTS – notice of representational rights – ss.174(1A), 185 Fair Work Act 2009 – Sched 2.1 Fair Work Regulations 2009 – application for approval of Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016 made by Melbourne Polytechnic – whether a valid Notice of Employee Representational Rights (Notice) was given to relevant employees – Notice issued to employees proposed to be covered by agreement replaced of the words ‘please speak to either your employer….’ under the heading ‘Questions?’ to ‘please speak to Joy Drever Ext. 1261….’ – parties conceded the Notice differed from the version in Schedule 2.1 of the Regulations – argued that the Commission had a discretion to find a Notice that deviated from Schedule 2.1 valid in circumstances where the deviation was ‘minor, insignificant and immaterial’ [AMOU] and [DP World Melbourne] – contended that the mere inclusion of Ms Drever’s name and contact number did not change the intent or effect of the language in the version of the Notice prescribed by the Regulations and indeed was more helpful than simply using the word ’employer’ – Peabody considered – Commission found the Notice did not conform with s.174(1A)(a) of FW Act – consistent with Peabody, Commission found the Notice was invalid and therefore no Notice as required by the FW Act was given – failure to issue a complying Notice meant the application for approval of the agreement must fail – application dismissed. Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016
August 12, 2016
TERMINATION OF EMPLOYMENT – contract for specified term – s.394 Fair Work Act 2009 – applicant filed an application – respondent asserted that the Commission had no jurisdiction to deal with it – applicant was not dismissed – respondent claimed contract of employment ended at the end of the specified term – applicant’s first engagement commenced with a fixed term contract for the period 22 February 2010 to 14 April 2010 – comprised of sixteen discrete periods up until 5 March 2016 – fixed terms contracts, interspersed with periods of casual and ongoing employment – applicant only worked consecutive periods covered by fixed term contracts once, from 15 January 2012 to 21 April 2012 – respondent submitted applicant did not perform work after 5 March 2016 – respondent wrote to applicant – asserted applicant’s fixed term contract commencing 10 January 2016 expired on 5 March 2016 – he was no longer employed by it – contract from 10 January 2016 to 5 March 2016 was confirmed via email on 23 March 2016 – rosters are prepared six weeks in advance – respondent denied making verbal offers of extending fixed term contract – but paid additional 80 hour payment addition to the payment of accrued entitlements on 19 March 2016 due to an administrative error as his name appeared on the roster – respondent submitted that it was common practice for fixed term contracts to be offered and extended on a ‘verbal basis’ – also if fixed term contracts were not extended, they fall into a casual pool – on or around the 16 February 2016, he was informed that he was suspended with pay, pending the outcome of an investigation of alleged misconduct said to have occurred the day before – Commission satisfied that there was an oral contract between the parties in existence which commenced on 10 January 2016 – had a termination date of 5 March 2016, which was not confirmed in writing until after 5 March 2016 – Full Bench makes clear in Lunn, regardless of applicant’s expectations at the termination of the contract in terms of automatic ongoing employment – does not permit conclusion that there was a common intention that the contract he and the respondent entered into was not to terminate on 5 March 2016 – contract of employment between the parties was for a specified period of time, once it reached its end date of 5 March 2016, the contract of employment terminated through the effluxion of time – there was no termination on the respondent’s initiative – Commission found applicant has not been dismissed, so application was dismissed. Margetts v Department of Justice and Regulation t/a Corrections Victoria
August 12, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged 28 days late – whether ‘exceptional circumstances’ [Nulty] – applicant’s grandmother, with whom applicant had a special bond, died day after dismissal – applicant was also dealing with a stressful custody battle, financial hardship and house sale – no medical evidence confirming degree of incapacity or duration – applicant mistakenly believed time limit was 28 days – well established that ignorance of timeframe is not exceptional circumstance – Commission not satisfied applicant had provided reasonable explanation for delay – applicant’s circumstances, while undoubtedly distressing and significant for him, were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay – not satisfied there were exceptional circumstances – extension of time refused – application dismissed. Corunna v BHP Billiton Iron Ore P/L t/a BHP Iron Ore
August 12, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent a small business – respondent objected on basis dismissal consistent with Small Business Fair Dismissal Code (Code) – summary dismissal aspect of Code considered in Ryman – inconsistencies in key aspects of applicant’s evidence – employer dismissed employee for lying – employer genuinely held belief applicant’s conduct warranted immediate dismissal – respondent carried out reasonable investigation of matter – found dismissal consistent with Code – application dismissed. Chimlum v Phoenix Combat Sports P/L t/a Phoenix Gym
August 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found appellant had employed 35 teachers on a fixed-term basis in contravention of clause 9.6 of the Monash College Proprietary College Ltd (Monash University Foundation Year Teaching Staff) Agreement 2012 (Agreement) – NTEIU v University of Melbourne followed – found that had the appellant not employed the teachers on fixed-term contracts they would have been employed on on-going contracts – found parties should consult to give effect to this determination – appellant sought to appeal the decision – submitted the Commission erred in finding the teachers were not permitted to be appointed on fixed-term contracts and erred in finding the college would have employed the teachers on an ongoing basis had fixed-term contracts not been available – submitted the determination was without precedent and beyond power and alternatively the discretion to make the order was miscarried – respondent submitted the Commission had not acted beyond power and the determination was the application of the agreement and standard dispute resolution process – parties only obligation was to consult to give effect to her determination – further submitted the Commission correctly assumed the College required the 35 teachers to perform work and would have employed them on ongoing contracts if fixed term contracts were not available – Full Bench granted permission to appeal – held appeal raises important questions concerning the interpretation of enterprise agreements in circumstances where the Commission’s discretion to alter existing employment contracts is an issue in the dispute – Commission’s approach to enterprise agreements in the public interest – Full Bench then considered the appeal – House v The King cited – held the weight of evidence from the appellant did not support the Commission’s contention that the appellant would have employed the 35 teachers on an on-going basis had fixed-term contracts not been available – error made in accordance with House v King – further held the determination at first instance retrospectively altered the contracts of the 35 teachers – NTEIU v University of Melbourne does not support the determination and there is no power in the FW Act or Agreement to have made it – held no jurisdiction to make initial determination which was another House v King error – Commission did not properly exercise the discretion vested in the Commission – appeal upheld – decision quashed. Appeal by Monash College P/L against decision of Bissett C of 6 June 2016 [[2016] FWC 3538] Re: Independent Education Union of Australia
August 12, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance, Commission not satisfied that dismissal harsh, unjust or unreasonable – during employment, respondent issued appellant with three warnings concerning drug use in the workplace – appellant engaged in drug rehabilitation program and was informed that repeat offences would result in dismissal – appellant was dismissed as a result of a car accident – after investigation, respondent concluded that appellant had consumed synthetic cannabis prior to or during journey home from work – appellant raised nine grounds of appeal – at the core of the dispute was whether an alleged admission made to police should have been regarded in evidence – at the time of the accident, appellant allegedly admitted to police that he had used ‘synthetic cannabis’ – appellant relied on Pfitzner principle and submitted that Watson VP erred by not taking such common law principle into consideration – appellant argued that at the time he allegedly made the admission he was incapable of exercising a sensible judgement about whether or not he should make a statement to the police – Pfitzner principle reflected in Evidence Act 1995 (Cth) and applies in criminal law proceedings – appellant argued should apply in unfair dismissal as it is a principle that guides a ‘fact finding exercise’ – Full Bench rejected such contention – Full Bench of the view that Pfitzner ‘founded on protection of rights of accused persons in criminal law proceedings’ – no application in unfair dismissal proceedings – appeal dismissed. Appeal by Wright against decision of Watson VP of 11 May 2016 [[2016] FWC 1941] Re: AGL Loy Yang P/L
August 12, 2016
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – ss.217, 604 Fair Work Act 2009 – appeal – Full Bench – the appellant had brought court proceedings against the respondent in relation to the application of a clause in the MSS Security Enterprise Agreement (QLD) 2011-2014 and the MSS Security Aviation QLD Enterprise Agreement 2014-2017 – respondent made an application to vary the agreements to address the uncertainty – both terms varied – application for permission to appeal this decision made – appellant submitted that the respondent did not have grounds to make the application to vary and that the Commission did not have jurisdiction to determine it on the basis that the agreements had ceased to apply – permission to appeal granted on this issue – Commission considered that when the application was made there were still some employees covered by the agreements and as such the application was made validly – appeal dismissed on this ground – appellant also submitted that there was no uncertainty or ambiguity in the clauses – further submitted that if there was uncertainty in the clauses then the variation should have been to establish the appellant’s interpretation of the clauses – permission to appeal refused in relation to these grounds. Appeal by United Voice against decision of Sams DP of 23 May 2016 [[2016] FWCA 2774] Re: MSS Security P/L t/a MSS Security
August 12, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed appellant’s application for relief from unfair dismissal – held that appellant not ‘dismissed’ within meaning of FW Act – appellant sought permission to appeal Commission’s decision – submitted that Commission mischaracterised events surrounding cessation of her employment – that there was agreement for respondent to treat termination as resignation in its consequences – that initial termination by respondent, although subsequently revoked, cannot be separated from the resignation as it was the initiating and operative factor leading to cessation of appellant’s employment – test under s. 400 is a ‘stringent one’ [Coal & Allied Mining Services] – whether permission to appeal is in public interest [GlaxoSmithKline] – whether arguable case of appealable error is demonstrated – Full Bench satisfied that Commission’s conclusion was available on the evidence – appellant had ample opportunity but failed to make submissions regarding alternative conclusion – public interest not enlivened – permission to appeal refused. Appeal by Cozaris against decision and order of Gooley DP of 28 April 2016 [[2016] FWC 2596] and [PR579431] Re: Emirates
