RIGHT OF ENTRY – application for permit – conditions – ss.512, 513 Fair Work Act 2009 – application by CFMEU for a right of entry permit for Mr Hall – Mr Hall has held entry permits as a CFMEU organiser concurrently from 25 March 2009 until the expiry of his most recent permit on 10 April 2016 – Commission considered declarations disclosed in application to determine if Mr Hall was a fit and proper person to hold permit – declaration disclosed findings of contravention against Mr Hall related to a 2010 Federal Magistrates court matter where consent order terms were imposed rather than a monetary penalty – this matter arose for consideration regarding an application for Mr Hall to be re-issued with an entry permit in 2013 – in this application it was held that a single contravention of the Act for which a penalty was not imposed did not outweigh the purposes of the relevant sections in determining Mr Hall a fit and proper person – Commission provided with a Statement of Agreed Facts, Admissions and Proposed Orders Between the Applicant and Respondents (Statement) relating to 2010 matter upon request for further information – held that although Mr Hall found to have hindered and obstructed a person and used abusive language, he acted out of genuine concern about safety and admitted the contraventions – particular weight given to the fact that no monetary penalty was imposed in relation to the 2010 matter – also considered relevant that Mr Hall has not been found to have committed any further contravention of industrial law in the six years since – Commission satisfied on overall balance that Mr Hall a fit and proper person to hold an entry permit – permit to be issued. Construction, Forestry, Mining and Energy Union – Adam Hall
July 29, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – two applications to deal with disputes under the dispute settlement procedure in the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014 – applicants employed on night shift (7:00pm-5:00am) at Coles Warehouse Distribution Centre (the Centre) at Smeaton Grange in New South Wales – in late 2014 Coles was decided to remove the permanent night shift – 35 employees rostered permanently on night shift – majority of night shift employees expressed a preference to work only on afternoon shift (3:00pm-1:00am) – only 26 positions available on afternoon shift – Coles developed selection criteria to determine the most suitable candidates for afternoon shift – seven employees allocated to the mid shift (10:00am-8:00pm) – five of the affected employees, who had not been allocated to afternoon shifts, filed dispute notifications – three of these applications were subsequently resolved – whether Coles properly complied with its consultation obligations in abolishing night shift – major rostering change – Bundaberg Sugar adopted – Commission held Coles had no other reasonable alternative, except to adopt a selection procedure based on objectively determined criteria – not dissimilar to a ‘spill and fill’ exercise – however in this case no team member actually lost their job, just their preferred working hours – satisfied Coles complied with its obligations under the notification and consultation provisions of the agreement – further satisfied the merit selection process to determine which night shift employee should be able to transfer to afternoon shift was transparent, fair and reasonable in all the circumstances – applications dismissed. Roberts and Anor v Coles Group Supply Chain P/L t/a Coles
July 29, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – small business employer – ss.23, 383, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as sales representative – commenced employment on 14 September 2015 – wage reduced in March 2016 due to performance issues – applicant resigned as a result, giving notice on 15 March – employment ceased on 16 March 2016 – respondent raised jurisdictional objections – small business employer – only employed seven employees – Commission found Think Commercial Construction P/L was not an associated entity of respondent – minimum employment period for an employee employed by a small business employer is one year – applicant employed for period of just over six months – minimum employment period not met – applicant not protected from unfair dismissal – application dismissed. Hemingway v Think Commercial Projects P/L atf Think Commercial Projects Trust t/a Think Commercial Projects
July 29, 2016
TERMINATION OF EMPLOYMENT – costs – s.400A Fair Work Act 2009 – employee made unfair dismissal application on 10 November 2015 – matter listed for hearing on 22 January 2016 – late on 21 January 2016, the employee’s solicitors sought adjournment – granted and matter relisted for hearing on 19 February 2016 – part-heard by Commission on 19 February and adjourned to 8 March 2016 – on 7 March 2016, employee’s solicitors sought adjournment – employer agreed with request – adjournment refused and parties directed that matter would proceed – neither employee nor employee’s solicitors appeared – at hearing, employer made application for dismissal of substantive unfair dismissal application pursuant to s.399A of FW Act – Commission granted application to dismiss – employer made application for costs on 16 May 2016 pursuant to s.400A based on three grounds – first, because employee failed to attend hearing on 8 March 2016 – second, because employee failed to discontinue application after 8 January 2016 despite nature and force of employer’s jurisdictional objections, being that employee was not covered by modern award or enterprise agreement and his earnings exceeded high income threshold – third, because employee continued application after part-heard hearing on 19 February 2016 – Commission satisfied that employee’s failure to attend hearing on 8 March 2016 was unreasonable act or omission by him and that costs were incurred by employer as a result – not satisfied with second and third grounds that employee ought to have reasonably known his case had no reasonable prospect of success – Commission refused to exercise discretion to make costs order as employer joined in on employee’s application for adjournment of proceedings listed for 8 March 2016 – held that by joining adjournment request, employer was prepared to continue matter – application dismissed. Retic Water P/L v Petersen
July 29, 2016
TERMINATION OF EMPLOYMENT – national system employer – casual – ss.14, 384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – two jurisdictional objections raised – whether respondent national system employer – employment arrangement was private and domestic in nature – respondent had ABN and the entity type was individual/sole trader – respondent submitted not covered by the extended meaning of national system employer and s.30 FW Act did not apply – Commission found the Victorian Fair Work (Commonwealth Powers) Act 2009 referral of termination of employment to Commonwealth did not exclude private arrangements – Commission satisfied that matter not claim for enforcement of contract but application for unfair dismissal remedy – held extended meaning of national system employer applies – first jurisdictional objection dismissed – whether applicant was casual employee – respondent contended not ongoing systematic employment nor reasonable expectation of continuity – respondent accepted rosters indicated consistent pattern of employment – did not accept it was also systematic employment – argued applicant’s availability and willingness to respond to ad hoc changes to roster did not constitute a pattern – applicant argued rostered hours established sequence of engagements through series of contiguous periods of service – argued engagement by respondent almost every week over 14 month period – Ponce and Yaraka Holding P/L considered – Commission found employment regular and systematic – work regularly offered by respondent – respondent argued ongoing employment not possible as funding from individual support package outside respondent’s control and circumstances could change at any time – applicant submitted respondent required 24-hour care by a team of carers – applicant a carer every week for 14 months – no indication arrangements would change – applicant had expectation employment would continue – Commission satisfied applicant had reasonable expectation of continuing employment with respondent on regular and systematic basis – found applicant met minimum employment period – second jurisdictional objection dismissed – matter referred for conciliation. Lewis-Driver v McLean
July 29, 2016
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – application for protected action ballot order (PABO) – Coles Store Team Enterprise Agreement 2014-2017 (2014 Enterprise Agreement) approved in 2015 prior to being appealed and later quashed with effect from 5 July 2016 – respondent subsequently declined invitation from applicant to reconvene bargaining process, leading applicant to lodge PABO – respondent opposed PABO on basis there had not been a ‘notification time’ in relation to proposed enterprise agreement and on basis applicant had not been, and was not, genuinely trying to reach an agreement regarding the proposed agreement – Commission to determine whether the initial approval of the 2014 Enterprise Agreement extinguished the ‘notification time’ in relation to the proposed enterprise agreement and if not, whether the applicant was genuinely trying to reach agreement – applicant submitted PABO application made in relation to continued negotiations for the proposed enterprise agreement enlivened as a result of quashing of 2014 Enterprise Agreement – Commission determined that when bargaining process ceases (by the making of an agreement) the notification time under the FW Act must cease to have effect in relation to specific proposed agreement – applicant found not to have a notification time to rely on – absent notification time, a prerequisite for PABO application, means application must fail – in the alternative, Commission also not satisfied applicant’s conduct to date met the requirements of ‘genuinely trying to reach agreement’ – application dismissed. Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia P/L
July 29, 2016
GENERAL PROTECTIONS – extension of time – date dismissal took effect – s.365 Fair Work Act 2009 – application to deal with contraventions involving dismissal – respondent objected to application on the basis that it was made one day late – respondent submitted dismissal took effect on 15 March 2016 – applicant submitted 30 March 2016 – respondent submitted that dismissal letter sent by registered post – respondent also engaged a courier to take a copy of the letter to the applicant’s address – applicant denied receiving the letter from the courier – applicant picked up the registered post letter from post office on 30 March 2016 and submitted this was the first notice of his termination – Commission not satisfied that the couriered letter was received – respondent’s argument that applicant had deliberately avoided communications from the respondent were rejected – dismissal was not communicated to the applicant until 30 March 2016 – application made in time. Mueller v Mun Australia P/L
July 29, 2016
TERMINATION OF EMPLOYMENT – costs – ss.400A, 401 and 611 Fair Work Act 2009 – application for unfair dismissal dismissed by Commission [[2016] FWC 2985] – respondent sought costs against applicant and his agent – submitted applicant and his representative caused their costs to be incurred unreasonably by continuing to hearing where there was no reasonable prospect of success – respondent’s submissions and evidentiary material filed 13 April 2016 were comprehensive and compelling – should have been clear to applicant and his representative that the merits of his application were particularly poor and that therefore his application had no reasonable prospect of success – applicant’s representative should have advised the applicant to either discontinue the application or seek to settle the matter on mutually agreeable terms – unclear from the material before the Commission as to whether she did so – Commission not satisfied that the applicant’s representative encouraged applicant to continue his application after it became clear there was no reasonable prospect of success – satisfied that an order for the applicant to pay all costs should be made – Directions to be issued for respondent to provide an itemised schedule of costs. Abdulrahim v QBE Management Services P/L
