RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – alleged dispute concerning Right of Entry (ROE) at Ichthys Onshore Construction Project – applicant sought orders to deal with what it said was the respective willingness and propensity of three officials to engage in inappropriate conduct when exercising ROE – respondents opposed jurisdiction – Commission has jurisdiction to deal with dispute – conduct of Union Officials taken to be conduct of Unions – conduct of Officials inappropriate and unacceptable – no repetition of conduct for extended period – role of Commission is not to sanction any of the respondents for past conduct, but to find a practical resolution for the matters going forward – findings themselves and prospect of future orders sufficient to resolve the dispute – respondents should be aware that any further findings of such conduct against them would provide the applicant a very strong basis for the kind of orders sought in this matter. JKC Australia LNG P/L v Construction, Forestry, Mining and Energy Union (CFMEU) and Ors
July 28, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant terminated for engaging in conduct designed to seriously undermine respondent, senior management and staff – respondent claimed that while applicant was on WorkCover he made derogatory comments to respondent’s employees, clients and service providers – Commission of belief much of the evidence relied on in relation to applicant’s alleged behaviour was hearsay – in absence of any direct evidence, Commission could not find applicant made any disparaging comments about respondent, its senior management to clients and or contractors of respondent – Commission determined no valid reason given for dismissal of applicant – applicant’s termination found to be unjust and unreasonable in circumstances – Commission not satisfied enough evidence or submissions provided to determine remedy – separate directions to be issued regarding remedy. Mahoney v OSSA Services P/L t/a OSSA Services
July 28, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute concerning meaning of part of clause 27 of the Tenix Australia P/L and ETU Power, Construction, Maintenance Enterprise Agreement 2013 – 2016 – clause 27 provides for payment to employees removed from availability roster – group of employees who were on availability roster and in receipt of availability allowance dismissed due to redundancy – applicant contended that as employees were removed from availability roster at initiative of respondent and had not received 12 months’ notice of removal from the roster they were entitled to payment of availability allowance in lieu of notice – found availability allowances are not payable as part of weekly wage for the purpose of redundancy payments – where termination of employment occurs due to redundancy, the initiative of respondent is not on removing an employee from the availability roster but rather on reducing the size of the workforce through redundancy – it would be a step too far to read the clause as including any action of employer which had the effect of ending employee’s participation in availability roster – termination of employment will always end possibility of employees being included on availability roster – termination not done for purpose of removing employees from the availability roster – clause 27.1.1 is about performance of work outside normal hours and payment to employee of allowance for being available to perform that work – clause 27 is linked with performance of work within a continuing employment relationship – found Clause 27.2.1 does not create entitlement for payment in lieu of notice for employee who is removed from availability roster as consequence of employee’s employment being terminated at the initiative of respondent. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer Utilities Australia P/L
July 28, 2016
TERMINATION OF EMPLOYMENT – costs – ss.400A and 611 Fair Work Act 2009 – Sch. 3.1 Fair Work Regulations 2009 – previous decision of the Commission determined that applicant would be required to pay respondent’s costs on an indemnity basis [[2016] FWC 1059] – bill of costs submitted by respondent – applicant provided with opportunity to object to bill of costs – Commission considered that a number of items in the bill were instances of duplication and these were deducted – also deducted amounts claimed for business class travel rather than economy, research and for preparation of the bill – the total amount claimed by the respondent was $128,421.31 – $15,134.62 deducted from bill – total costs awarded were $113,286.69 – order to be issued. Post v NTI Limited t/a NTI
July 28, 2016
RIGHT OF ENTRY – dispute over right of entry – jurisdiction – ss.490, 505 Fair Work Act 2009 – application CFMEU to resolve a dispute regarding CFMEU permit holders exercise of right of entry at premises occupied by BHP – BHP submitted that Commission lacked jurisdiction to hear the matter as there was no relevant dispute between the parties – ‘dispute’ the subject of application had come to an end, and employees to which it related were no longer permitted to access premises – BHP further submitted that hearing the dispute and making any orders would be an exercise of judicial power and not arbitral power – CFMEU sought right of entry for permit holders before and after shifts – BHP submitted this did not fall within the scope of ‘other breaks’ as referred to in s.490(2) of FW Act – determination of this issue would involve statutory interpretation, requiring an exercise of judicial power – Commission satisfied that CFMEU sought a bare declaration of existing rights rather than resolution of an existing dispute, and that application sought the enforcement of an existing right, rather than the creation of a new right, which involved an exercise of judicial power – Commission also not satisfied ‘other breaks’ includes periods before or after shifts – application dismissed. Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West P/L
July 28, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance appellant’s general protections application dismissed – application was lodged 136 days out of permitted timeframe – grounds of appeal advanced by appellant included that Commission made an error of law; failed to consider all extenuating circumstances concerning late application; respondent did not comply with directions and significant errors of fact and law – appellant further submitted that Commission failed to adequately appreciate the extenuating circumstances of the case – public interest must be enlivened in order for Commission to grant permission to appeal – GlaxoSmithKline considered – must be arguable case of appealable error – Full Bench of view that Commission correctly considered reason for delay – onus is on applicant to prove credible reasons for delay – applicant did not do so in this case – events relied on to establish exceptional circumstances took place outside timeframe for lodging application – Commission also considered applicant’s extenuating circumstances – Full Bench agreed with Commission that applicant able to lodge application notwithstanding such – no error of fact or law – no manifestation of injustice – public interest not enlivened – permission to appeal refused. Appeal by Sivaram against decision of Lawrence DP of 6 April 2016 [[2016] FWC 2154] Re: Caddy Van Storage Systems (VIC) P/L t/a Caddy Storage Systems
July 28, 2016
The Fair Work Commission has approved the WA Universal Crane Hire Pty Ltd and CFMEU (WA) Enterprise Agreement 2014-2017 (Mobile Crane Hire).
July 27, 2016
Thirty applicants alleging unfair dismissal will be heard by the Fair Work Commission today. The full list is: Oaky Creek Coal Pty Ltd (Watts), UGL Engineering Pty Ltd (Stirling), Australian Postal Corporation (Southwell), Yinghengda Pty Ltd (Mallick Sonia), National Australia Bank (McKibbin), Endeavour Energy (Mcwhirter), Bingo Waste Services Pty Ltd (Weir), Scotia Inspection Consultants Pty Ltd (Cunningham), Edith Cowan University Student Guild (McAlindon), City of Kalgoorlie-Boulder (Wilson), Ausdrill Limited (Delmage), Qube Bulk Pty Ltd (Ashton), Beijing Hua Xin Liu He (Australia) Pty Ltd (Zhang), Whitehouse Institute Pty Limited (Carter), Achieve Corporate Services Pty Ltd as Trustee for Achieve Cleaning Services Trust (Souter-Robertson), Australian Centre for the Moving Image (Ridd), Superpartners Pty Ltd (Ayaz, Bronqueur, Harder, Kaur, Matthews, Ruff, Wilson), Jetstar Airways Pty Ltd (Bojkovski), Coles Supermarkets Australia Pty Ltd (Stephens), Robertson McMahon Pty Ltd (Griffin), Janbay Pty Limited (Conroy), Ludowici Sealing Solutions Pty Ltd (Koulouris), Lantrak Resource Management (Mccarthy), Len Smith Carpet Court (MacInnes).
