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
August 5, 2016
GENERAL PROTECTIONS – multiple actions – ss.365, 725 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant alleged that respondents had contravened ss.362 and 550 of FW Act in relation to the termination of her employment on 21 January 2016 by Arthur J. Gallagher Australia & Co (Aus) P/L (AJG) – AJG in its response raised a jurisdictional objection, contending that the applicant had also made a complaint to the Australian Human Rights Commission (AHRC) in relation to her dismissal – applicant contended that her general protections application was not made in relation to her dismissal – she further contended that her application was not brought against her former employer, AJG, but against two individuals, neither of whom employed her – whether applicant made her general protections application after making her AHRC complaint, and whether her general protections application was made in relation to her dismissal – Birch considered – Commission found general protections application was made after the AHRC complaint had been made, and was made in relation to her dismissal – s.725 of FW Act operated as a bar to the general protections application because her AHRC complaint was a complaint made another law in relation to her dismissal which had not been withdrawn nor failed for want of jurisdiction – application dismissed. Hazledine v Wakerley and Giddings
August 5, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 587 Fair Work Act 2009 – application for unfair dismissal – conciliation before Asbury DP – terms of settlement sent to parties – applicant’s representative contacted Asbury DP advising that applicant had decided he was unwilling to accept the respondent’s offer of settlement and would like the matter set down for hearing – Commission considered whether applicant’s application should be dismissed under s.587 of FW Act because it had no reasonable prospects of success – applicant’s representative alleged that she explained the terms of settlement to applicant – ill-equipped to make significant decisions about his application – alleged that Asbury DP exerted undue influence over applicant – submitted there was no binding agreement because of his mental health issues – found there was an agreement of the kind described in category 2 of Masters v Cameron – application dismissed. Souter-Robertson v Achieve Corporate Services P/L atf Achieve Cleaning Services Trust
August 5, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – s.394 Fair Work Act 2009 – applicant and respondent had discussions between themselves about settling a range of the applicant’s claims including his unfair dismissal claim – multiple deeds of settlement drawn up – applicant and respondent had each signed different deeds – dispute between whether the amount payable to the applicant was a net amount or gross amount – applicant submitted that there was no agreement because the parties had not agreed on the final terms of settlement – respondent submitted that binding agreement had been reached and that as it had complied with the deed the matter should be dismissed – Commission unable to conclude that there was a binding agreement reached between the parties – applicant obliged to repay the monies as he contended there was no settlement – directions to be issued so that the application for unfair dismissal can be heard without further delay. Kakies v HJ Building Services
August 5, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 401 Fair Work Act 2009 – application for an unfair dismissal remedy dismissed as Mr Cresp was not employed by Nissan Casting Plant (Australia) P/L (Nissan) – Nissan sought an order under ss.400A and 611 FW Act for costs against Mr Cresp and under s.402 against his representative Just Relations – Commission not satisfied Mr Cresp made his application without reasonable cause – difficult to see how Mr Cresp’s claim had any reasonable prospects of success – satisfied Mr Cresp acted unreasonably in not discontinuing his claim once he received Nissan’s material – cannot be satisfied that Just Relations gave Mr Cresp advice not to discontinue his application and the claim against Just Relations must fail – order that Mr Cresp pay Nissan’s costs in accordance with Schedule 3.1 of the Fair Work Regulations 2009 – will include costs incurred by Nissan calculated from 25 May 2016 being the date Mr Cresp could have accepted Nissan’s offer to resolve the matter. Nissan Casting Plant (Australia) P/L v Just Relations
August 5, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – genuine redundancy – ss.383, 389, 394 Fair Work Act 2009 – application for relief from unfair dismissal remedy – whether respondent was a small business and applicant had not served minimum employment period – respondent conceded it was not small business at time of dismissal – minimum employment period met – whether genuine redundancy – Commission satisfied respondent suffered change in operational requirements and did not need full time workshop foreman – respondent accepted there was no consultation with applicant prior to dismissal – Commission satisfied respondent did not comply with consultation obligations – applicant would have accepted a lower paid position rather than unemployment – satisfied redeployment opportunities were available – found redundancy not genuine – jurisdictional objection dismissed – dismissal was unreasonable – ordered compensation of $13,338 taxed accordingly plus $1267.11 in superannuation. Benson v Munns Parks and Gardens P/L
August 5, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant dismissed for economic reasons – employer made objections alleging applicant earned in excess of high income threshold, genuine redundancy, and dismissal in accordance with the Small Business Fair Dismissal Code (the Code) – Commission found applicant covered by Professional Employees Award 2010 and therefore did not exceed high income threshold – dismissal not consistent with code – considered s.389 of FW Act – dismissal not case of genuine redundancy as applicant not consulted – considered factors in s.387 – reason for dismissal not based on capacity or conduct – applicant not notified of dismissal or given opportunity to respond – absence of consultation considered – dismissal unfair – ordered compensation of one week’s pay at the weekly rate applicable at the time of the dismissal – superannuation obligations will apply to this amount. Gray v Marmota Energy Limited
August 5, 2016
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission refused extension of time to lodge unfair dismissal application – appellant dismissed for ‘continuing failure to attend for work’ – at the time of his dismissal, appellant had been arrested and charged with a serious criminal offence and had been held in custody – among other things, appellant submitted Commission had made a significant error of fact in respect to when he was made aware of his dismissal – Full Bench considered grounds of appeal in determining it was not satisfied appellant had established an arguable case of any error in relation to the date of his dismissal, or any other aspect of the decision at first instance – permission to appeal refused. Appeal by Thomas against decision of Drake SDP of 18 April 2016 [[2016] FWC 2469] Re: Breezway Australia P/L
