ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision which approved the JELD-WEN Australia QLD Enterprise Agreement on basis that it was not sufficiently clear s.180 and s.186 of FW Act had been satisfied – appeal concerned a typographical error in Appendix A of Agreement not identified by parties or Commission at first instance – dates of wage increases left as ‘[insert date]’ – employer gave an undertaking regarding relevant dates and that increases were agreed to by employees and would apply to all employees covered by Agreement – Full Bench granted permission to appeal on basis that appeal raised important questions concerning mandatory pre-approval requirements of FW Act in circumstances where an agreement contains unclear and objectively unidentifiable terms – Full Bench accepted that with relevant dates missing, Agreement did not pass mandatory requirements of FW Act – appeal upheld and decision quashed – Full Bench reheard application for approval – whether undertaking remedied the typographical error – Full Bench found Agreement, when read with undertaking, adequately reflected explanation respondent provided relevant employees, satisfying s.180(5) of FW Act – Agreement with undertaking gave effect to terms and dates genuinely agreed to and passed s.186(2)(a) of FW Act – employees better off overall under Agreement with undertaking – undertaking met concerns raised by CFMEU and sufficiently remedied error – no issues regarding s.190(3)-(5) requirements – satisfied appropriate to accept undertaking and approve Agreement – Agreement to be read in conjunction with undertaking pursuant to s.190(2) of FW Act – satisfied requirements of ss.186, 187 and 188 met subject to undertaking – Agreement approved with operative date of 27 July 2016. Appeal by Construction, Forestry, Mining and Energy Union against decision of Lee C of 17 May 2016 [[2016] FWCA 3088] Re: Jeld-Wen Australia P/L t/a JELD-WEN Australia QLD
July 29, 2016
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant sought permission to appeal the dismissal of his application for relief from unfair dismissal – submitted that the Commission had failed to take into account information contained in certain documents – Commission satisfied that the decision made was reasonably open to the Commission on the facts – evident that all of the materials provided to the Commission had been considered – appellant had not taken the Commission to any specific errors said to have been made – Commission not satisfied that any error made – Commission not satisfied that it would be in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Belachew against decision and order of Kovacic DP of 21 April 2016 [[2016] FWC 2532], [PR579337]] Re: Commonwealth of Australia as represented by the Australian Bureau of Statistics
July 28, 2016
Thirty labour disputes will be analysed, reviewed, determined or referred by the Fair Work Commission today. The full list is: Iplex Pipelines Australia Pty Limited (Bienias), Toll Personnel Pty Limited & Toll Jalco (Williams), Tabaro Pty Ltd (De Biasi), Amcal Max Shearwater (Wilson), Reece Australia Pty Ltd (Karahalios), TOD Investments (Presta), Oaky Creek Coal Pty Ltd (Watts), Water Dynamics Pty Ltd (Pope), UTECH Group Pty Ltd (Tablizo), Constantinos Fardoulis & Andrianna Athas (Wilkins), Stellar Asia Pacific Pty Ltd (Morgan), VST Enterprises (Duggan), BMD Constructions Pty Ltd (Brandy), Medway Plumbing Pty Ltd (Griffiths), Inner West Towing (Maynard), McDonald’s Australia Limited (Nadir), Collexion Pty Ltd (McIlroy), Ultimo Catering and Events (Guilfoyle), CSBP Limited (Rowe), Teys Australia Beenleigh Pty Ltd (Prange), Sandfort Pty Ltd ATF The Sandfort Trust (Miller), Granville Tavern (Reid), Careers Australia Group Limited (Chapman), MC Global Solutions Pty Ltd (Crawford), Sea Stradbroke Services Pty Ltd (Campbell), QLD News (Grant), Kennedy Property Services (Mulvihill) and Anglicare SA Incorporated (Lamb, Moore).
July 28, 2016
RIGHT OF ENTRY – application for permit – conditions – ss.512, 513, 515 Fair Work Act 2009 – application for a right of entry permit – Mr Graauwmans is employed by the CFMEU as an organiser – has continuously held entry permits from 31 May 2006 until the expiry of his most recent permit on 19 April 2016 – Director of the Fair Work Building Industry Inspectorate (Director) notified of the lodgement of the application – Director elected to exercise his right under s.72 of the Fair Work (Building Industry) Act 2012 to make submissions in relation to the matter – Director opposed the issue of an entry permit to Mr Graauwmans – declaration from CFMEU disclosed a number of court or Commission proceedings involving Mr Graauwmans – whether Mr Graauwmans a fit and proper person – decisions in White v CFMEU and ABCC v Graauwmans must be given considerable weight in the consideration of Mr Graauwmans’ fitness and propriety – White v CFMEU involved the organisation of and engagement in unlawful industrial action for coercive purposes – ABCC v Graauwmans involved the organisation of unlawful industrial action – both matters were indicative of an unwillingness on Mr Graauwmans’ part at the time to comply with industrial laws – held that the passage of time since these contraventions occurred (in White v CFMEU the conduct was in 2008, and in ABCC v Graauwmans it was in 2010) and the fact that they did not involve any breach of right of entry requirements meant that the two matters cannot by themselves be given decisive weight against the conclusion that Mr Graauwmans is a fit and proper person under s.512 of FW Act – however they remain matters of significant concern given that Mr Graauwmans has never expressed any contrition for his conduct or even demonstrated any real understanding that he contravened industrial laws – most alarming aspect of his evidence was that he did not recall, and perhaps has never actually known, that penalties were imposed upon him in both matters – findings made against Mr Graauwmans in DFWBII v CFMEU are relevant matters which must be assigned significant weight – at three Lend Lease worksites on 1 April 2014, Mr Graauwmans misused his entry rights – failed to comply with basic right of entry obligations such as the provision of notice, the production of his entry permit on request, and the refusal to leave the sites where right of entry had not properly been exercised – Commission concluded that Mr Graauwmans would be a fit and proper person to be issued with an entry permit that was subject to conditions that served to emphasise the need for him to comply with the relevant requirements of Part 3-4 of the FW Act, allowed his compliance to be monitored by the Director, and placed the continuance of his permit at risk if he failed to do so – parties provided with an opportunity to make submissions before Commission makes any final orders. Construction, Forestry, Mining and Energy Union – Robert Graauwmans
July 28, 2016
MODERN AWARDS – 4 yearly review – plain language – s.156 Fair Work Act 2009 – Commission intends to undertake further plain language re-drafting of modern awards as part of the 4 yearly review of modern awards (the Review) – has undertaken a Plain language modern award pilot (the Pilot) to produce a plain language draft of the Pharmacy Industry Award 2010 – has adopted a plain language drafting approach to new provisions developed as part of the Review – during the Pilot the Commission has been mindful of the need to treat award-specific terms in a different way to general terms which have broader application across modern awards – initial guidelines for plain language re-drafting developed as part of the Pilot – guidelines will be a reference for further plain language re-drafting undertaken as part of the Review – will be published for comment from interested persons before the end of 2016 – interested persons invited to comment on proposed process and indicative timetable by 4.00 pm on Friday, 29 July 2016. 4 yearly review of modern awards – Plain language
July 28, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – applicant commenced work as part of one year contract with respondent on 26 January 2005 – contract tacitly renewed each year until dismissal on 30 June 2015 – applicant submitted where employment for fixed term continues after expiry, employment continues for indefinite period subject to termination – submitted that in alternative, if employed on series of one year fixed term contracts, dismissal took effect midway through current contract – respondent submitted that applicant effectively resigned by taking one month absence on sick leave as notice – Commission found that there was no sustainable basis for respondent’s contention that employment contract expired on 30 June 2015 – found nothing to support respondent’s contention that applicant resigned – held that termination was at initiative of respondent and that there was no valid reason for termination – applicant submitted that dismissal was harsh having regard to her age, difficulty in obtaining alternative employment and length of service – Commission held dismissal was harsh, unjust and unreasonable – reinstatement not appropriate in the circumstances – ordered maximum statutory compensation of 26 weeks ($15,506.46) taxed according to law. Kim v Embassy of the People’s Democratic Republic of Algeria
July 28, 2016
RIGHT OF ENTRY – application for permit – ss.512, 513, 515 Fair Work Act 2009 – application for a right of entry permit – Mr Benstead has been employed by the CFMEU as an organiser since December 2004 – was first issued with an entry permit on 21 June 2004 – most recent entry permit issued to him expired on 20 April 2015 – it was not returned to the Commission upon expiry because Mr Benstead had lost it – Director of the Fair Work Building Industry Inspectorate (Director) notified of the lodgement of the application – Director elected to exercise his right under s.72 of the Fair Work (Building Industry) Act 2012 to make submissions in relation to the matter – Director opposed the issue of an entry permit to Mr Benstead – declaration from CFMEU disclosed a number of court proceedings involving Mr Benstead – whether Mr Benstead a fit and proper person – White v Benstead raised serious concerns about Mr Benstead’s fitness and propriety to hold an entry permit – involved a serious breach of s.500 of the FW Act in that Mr Benstead (together with another CFMEU official) entered a worksite without having given any notice of his proposed entry and having no legal basis to do so, pushed past security guards who sought to prevent his entry, failed to identify the purpose of his entry, interrupted employees who were at work for the purpose of holding discussions, disobeyed directions to leave, and eventually had to be escorted out of the site by police – the conduct exhibited was of a person who had no regard whatsoever to the legal obligations and responsibilities in the FW Act attaching to entry to employers’ premises – Commission particularly disturbed by Mr Benstead’s evidence about this matter – evidence was inconsistent with the agreed statement of facts and also internally inconsistent – was simply not credible and not accepted by Commission – demonstrated a refusal to accept responsibility, almost seven years after the event, for a contravention described by the Court as ‘flagrant’, and evinces no recognition of the need to comply with the right of entry provisions in the FW Act – other contraventions were all serious and demonstrated a readiness to engage in unlawful conduct – not persuaded Mr Benstead had learnt anything from the findings made against him in these matters – considered the contraventions found and penalties imposed in Draffin v CFMEU, White v Benstead and FWBII v CFMEU, John Holland v Benstead and Alfred v CFMEU weighed heavily against a conclusion that Mr Benstead was a fit and proper person to hold an entry permit – no evidence that Mr Benstead has in recent years ever actually exercised right of entry under the FW Act in a lawful manner – not satisfied Mr Benstead was a fit and proper person to hold an unconditional entry permit – no confidence that he recognises and takes seriously the need to comply with the right of entry obligations contained in Part 3-4 of the FW Act – no conditions that could be attached to an entry permit which would address the concerns, and allow the Commission to conclude that Mr Benstead was a fit and proper person to be issued with a conditional entry permit – CFMEU given opportunity to propose conditions which might deal with concerns – Director will have an opportunity to respond. Construction, Forestry, Mining and Energy Union – Gerard Benstead
July 28, 2016
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – application to appeal decision not to issue right of entry permit to Mr Tadic, CFMEU official – entry permit expired – permit returned to Commission – applicant sought stay of decision – Edghill applied – Commission satisfied arguable case to grant permission to appeal and appeal itself – not persuaded balance of convenience favours stay in circumstances – decision now under appeal incapable of being stayed – matter must simply be determined on appeal – stay cannot be taken to re-establish entry rights where rights do not now exist or resurrect any rights which formally existed – stay application refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Watson VP of 31 May 2016 [[2016] FWC 3322] Re: Director of the Fair Work Building Industry Inspectorate
