TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – applicant’s annual earnings exceeded the high income threshold – employed as Drill and Blast Engineer in open cut mining operations – respondent submitted applicant not covered by award – Kucks v CSR Ltd considered re construing an award – Black Coal Award 2010 the relevant award – Schedules A and B set out classes of work – relatively senior staff employees have traditionally been covered by awards in the black coal mining industry – history of professional occupations being covered by awards as early as 1945 – Black Coal Award was intended to ‘neither expand nor contract the reach of the key pre-reform awards (to) the extent to which the awards apply to such employers’ – consideration of applicants lack of formal engineering qualifications – Commission held principal purpose of applicant’s role supervisory – qualifications not required – consideration of Foreperson and Senior Foreperson classifications in the award – applicant in relatively senior role – satisfied applicant covered by Black Coal Award – not employed as Engineer or Open-Cut Overseer – jurisdictional objection dismissed. Todd v Whitehaven Coal Mining Limited t/a Tarrawonga Open Cut Coal Mine
August 5, 2016
ANTI-BULLYING – likely to continue – ss.587, 789FC Fair Work Act 2009 – application for order to stop bullying – alleged bullying behaviour resolved by respondent complying with recommendations – applicant initially accepted outcome then subsequently refused to accept matter resolved – applicant requested matter proceed to arbitration – respondent made application to have matter dismissed under s.587 due to applicant’s extended absence from work and respondent’s commitment which resolved alleged bullying behaviour – no basis to find any risk that applicant may bullied in future – meaning of ‘no reasonable prospect of success’ considered – the question of prospect may give rise to different answers depending on timing [Shaw v ANZ] – difficult to demonstrate future risk requirement [G.C] – held applicant’s case may have initially had some prospect of success but given respondent’s compliance with recommendation and commitment to restrict contact between applicant and individuals involved there was no further prospect of applicant being bullied or harassed – found no reasonable prospect of success – application dismissed. Lokteeva v Woolworths Limited and Ors
August 5, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on grounds of genuine redundancy – Commission held employer failed to meet major change consultation requirement under Vehicle Manufacturing, Repair Services and Retail Award 2010 – did not discuss measure to mitigate adverse effect of change – found dismissal not genuine redundancy – held dismissal unfair – failure to consult at critical time when considering whether job was redundant made decision to dismiss unreasonable – reinstatement not appropriate – ordered compensation of $936.98 plus 9.5% compensation. Simpson v KAP Motors P/L t/a Kerry’s Automotive group
August 5, 2016
ENTERPRISE AGREEMENTS – varying agreement – s.210 Fair Work Act 2009 – application by Veolia Environmental Services (Australia) P/L for variation of the Veolia Environmental Services (Australia) P/L Cooper Basin Enterprise Agreement 2014-2017 – variation agreed with employees – Australian Workers’ Union and Australian Manufacturing Workers’ Union covered by agreement and each indicated they opposed the application – whether agreement of employees genuine – whether proper process followed – whether copy of agreement with variations and any incorporated terms provided to employees – whether undertaking given in original proceedings retained – whether union marginalised – whether coercion or unreasonable pressure – whether outcome of the ballot unclear due to question posed – whether BOOT satisfied – whether serious public interest grounds to refuse approval – KCL considered – genuine agreement found – statutory requirements met – variation approved with undertakings. Veolia Environmental Services (Australia) P/L Cooper Basin Enterprise Agreement 2014-2017
August 5, 2016
ENTERPRISE AGREEMENTS – employee organisation coverage – s.185 Fair Work Act 2009 – application for approval of MMAOL Pty Ltd Enterprise Agreement 2016 (MMAOL Agreement) pursuant to s.185 of FW Act on 4 May 2016 – Maritime Union of Australia requested to participate in proceedings, contending it had evidence to support that the group of employees to be covered by the MMAOL Agreement was not fairly chosen – Commission requested materials and oral evidence from MUA to support contention – hearing to admit materials and evidence from MUA held on 18 July 2016 – further decision on whether MUA should be heard in relation to Commission’s approval of MMAOL Agreement – MUA had standing to be heard in relation to approval of proposed MMAOL Agreement pursuant to s.590 which Commission adopted in view of the written submissions – applicant is subsidiary of MMA Offshore Limited – MUA currently engaged in bargaining on replacement enterprise agreement with another subsidiary, MMA Vessel Operations P/L (MMAVO) – concerned that proposed MMAOL Agreement will deny MMAVO employees opportunity to bargain, reduce MMAVO workforce in favour of employment through MMAOL and request/require employees to accept employment with MMAOL – contended the way in which applicant made agreement was for purpose of excluding MUA from negotiations and denying those to be covered by MMAOL Agreement of collective bargaining representation by union and protected action – questioned whether there were legitimate business reasons for making the MMAOL Agreement – Commission felt real issue is MUA did not want MMAOL to choose any employees for purpose of making any enterprise agreement in view of its current bargaining with MMAVO where it holds bargaining representative role – detected MUA were concerned with consequences for MMAVO employees should MMAOL Agreement be approved – Commission not inclined to presume what may or may not happen with respect to employees of another entity should MMAOL Agreement be approved – therefore, MUA’s further participation in proceedings not necessary – role of Commission is to approve proposed enterprise agreement if it meets legislative requirements, not to restrict ability of applicant to make enterprise agreement – no guaranteed right for MUA to be bargaining representative in all bargaining involving its members – Commission satisfied it can proceed to determination application for approval of MMAOL Agreement without further participation of MUA. MMA Offshore Logistics P/L t/a MMA Offshore Logistics
August 5, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed because he drove a hi-rail vehicle around stationary cars at boom gates, placed vehicle onto railway line whilst train was approaching on adjacent line, and then exited vehicle on side of railway line on which train was passing – Commission found applicant’s conduct was a valid reason for dismissal because it breached safety procedures, was inherently dangerous and involved unnecessary risks – unsatisfactory performance warnings given in past regarding speeding and unsafe driving – Commission considered it relevant that rail industry is a safety critical industry, that onlookers would have been alarmed by the applicant’s actions and that train driver and observer were alarmed fearing the applicant might commit suicide – Commission found dismissal was neither harsh, unjust nor unreasonable – applicant not unfairly dismissed. Andersen v Brookfield Rail Employment P/L
August 5, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed without notice – female employee witnessed applicant viewing pornographic images on work computer on two occasions – female employee viewed applicant’s internet browser history over seven different days and made complaint to respondent – respondent investigated – applicant’s internet history showed 33 instances of accessing pornographic material – applicant issued with first and final warning advising that further breaches of respondent’s internet policy would result in termination – female employee discovered that applicant still viewed inappropriate websites and monitored her movements and emails – she made formal written complaint alleging she was victim of sexual harassment, bullying and stalking by applicant – respondent investigated and found that applicant had viewed inappropriate images of women in swimsuits – respondent believed he had grounds to dismiss applicant for breaching company policy and procedures – applicant dismissed for serious misconduct – found applicant was responsible for accessing the swimsuit website – found valid reason for applicant’s dismissal but applicant was denied procedural fairness – applicant not notified of reason for dismissal – applicant not given opportunity to respond – applicant did not know he was being dismissed because he had accessed swimsuit website – satisfied that the dismissal of applicant was unjust and unfair – compensation ordered – respondent to pay applicant $25,341.13. Roelofs v Auto Classic (WA) P/L t/a Westcoast BMW
August 5, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – whether respondent had the ability to unilaterally decline to increase the base wage rate value it used in its Incentive Scheme calculations in line with the negotiated wage increases in the Coles Kewdale Distribution Centre WA Agreement 2014 – clause 10(iv) of agreement was in dispute – applicant submitted there must be agreement between the parties to a revision of the Incentive Scheme and therefore there was also a requirement to consult – applicant submitted there was no agreement and consultation was insufficient – respondent submitted application could not be dealt with by Commission because it sought a binding determination on the rights or obligations that arose from the agreement, as opposed to the Commission forming a view about legal rights for the purpose of taking some other step in resolving a dispute within the Commission’s jurisdiction – held Commission had jurisdiction to deal with dispute – Commission had the ability to determine the meaning and effect of the agreement’s terms even where it involved a finding on the legal rights and obligations under the agreement – respondent submitted there was no requirement to consult because there was no change to the form and structure of the Incentive Scheme – held respondent did not revise form and structure of the scheme. Hutchings v Coles Group Supply Chain P/L t/a Coles Kewdale Distribution Centre
