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 Sutherland – Mr Sutherland currently holds two permits – Commission considered declarations disclosed in application to determine if Mr Sutherland was a fit and proper person to hold permit – CFMEU submitted fact that FWBC did not oppose application a relevant factor – Commission held lack of opposition from FWBC not relevant consideration – Commission did not know reasons why FWBC not opposed to application – Commission noted Mr Sutherland had not completed relevant training and involved in multiple unresolved proceedings that raise important, relevant concerns – proceedings at preliminary point only and no findings of fact made – allegations against Mr Sutherland untested – Commission held Mr Sutherland a fit and proper person to hold permit subject to conditions – permit to be issued. Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
July 15, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute regarding proposed implementation of a six day roster – dispute settlement procedure empowers Commission to approve roster where parties cannot agree – considered approach of Commission in exercising powers that interfere with rights of management to operate business efficiently – reasonable basis for implementation of roster based on economic setbacks, difficulty making profit and low level of cane supply – five day roster not appropriate as it would extend crushing season and increase labour costs due to need to work overtime and weekends – arguments advanced by union not accepted – proposed roster and terms do not unnecessarily impact employee – roster and conditions approved. Bundaberg Sugar Ltd v Australian Workers’ Union, The and Ors
July 15, 2016
MODERN AWARDS – award modernisation – State reference public sector transitional award – Sch. 6A, Item 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – State reference public sector transitional award modernisation – matter arises from the operation of Schedule 6A to the Transitional Act – Early Childhood Teachers Interim Award 1999 and Educational Services – Early Childhood Assistants – Victoria – Award 1999 – a group of Victorian Local Councils support the making of a State reference public sector modern award known as the Victorian Local Government (Early Childhood Education Employees) Award 2016 – this award will replace all existing instruments applying to employers covered by the award – the Australian Education Union (AEU) supported this approach – the Municipal Association of Victoria (MAV), which represents other local councils, has objected to the coverage of this award – the Australian Services Union (ASU) supported the position of the MAV – disagreement between the parties related to the scope of awards applying in the sector – Full Bench held that the Victorian Local Councils group and the AEU were the most directly involved in the particular employment covered by the proposed award and had participated fully throughout the process – other parties were less directly involved and had little involvement in the development of the agreed award – Full Bench satisfied that the terms of the award are consistent with the legislative provisions including the modern awards objective and the minimum wages objective – award made – award shall operate from 18 July 2016. Early Childhood Teachers Interim Award 1999 and Anor
July 15, 2016
REGISTERED ORGANISATIONS – representation rights – State representation order – s.137F Fair Work (Registered Organisations) Act 2009 – Full Bench – application for an order reflecting a State representation order – directions issued that the application be served on various registered organisations, transitionally recognised associations or recognised State-registered associations – directions required all unions served with the application to indicate a position in respect of the proposed order, and if opposed the basis upon which the order is opposed – application not opposed – since 1996, pursuant to representation orders made by the Queensland Industrial Relations Commission and the Australian Industrial Relations Commission, the Australian Workers’ Union of Employees, Queensland (AWUEQ) has had the exclusive right to represent the industrial interests of certain classifications of employees at Dalrymple Bay – unless otherwise ordered, the AWUEQ will cease to have standing in the federal industrial relations system from 1 January 2017, the relevant union will be the AWU – Both Dalrymple Bay and the AWU make application for an order reflecting a State representation order, the purpose of which is to maintain the status quo at Dalrymple Bay – Full Bench satisfied that each of the prerequisites for making an order were satisfied – considered it was appropriate to make an order to substantially the same effect as the 1996 State order – order issued. Dalrymple Bay Coal Terminal P/L & Australian Workers’ Union, The (002N)
July 15, 2016
MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Commission assessing the National Training Wage schedule (NTW Schedule) to determine whether it currently meets the modern awards objective – two proposals – standardising the NTW Schedule; and removing the NTW Schedule from all modern awards, save for the Miscellaneous Award 2010, and incorporating the NTW Schedule by reference into the other modern awards that currently contain the Schedule in full – proposed changes do not seek to change the entitlements for trainees under the NTW Schedule – interested persons are invited to make written submissions on the proposals by 4.00pm on Thursday, 28 July 2016. 4 yearly review of modern awards-National Training Wage
July 15, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 399A Fair Work Act 2009 – applicant alleged he had been unfairly dismissed – applicant and respondent entered settlement negotiations – respondent submitted that a binding agreement was reached – applicant submitted that there was no binding agreement – applicant had advised his legal representative to pursue the offer made by the respondent however advised that he was no longer prepared to settle the matter on that basis – Commission considered correspondence between parties during the protracted settlement negotiation supported the respondent’s position – applicant asserted that any agreement was subject to the successful negotiation of a Deed of Settlement – Commission rejected this contention and considered that the deed was simply to confirm the agreed settlement – satisfied that a binding settlement agreement was reached – applicant acted unreasonably in failing to discontinue his application after a settlement agreement had been concluded – application dismissed. Kong v Citic Pacific Mining Management P/L t/a Citic Pacific Mining
July 15, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 587 Fair Work Act 2009 – respondent applied to have unfair dismissal application dismissed on basis that parties had reached a binding settlement agreement and therefore application had no reasonable prospects of success – issue in dispute was whether employee authorised representative from Australian Workers’ Union (AWU) to put offer of settlement to respondent’s representative – applicant refused to sign deed of release and sought to continue with application – Commission preferred AWU representative’s evidence which was supported by contemporaneous file notes – AWU had no cause to settle matter without instructions – Commission did not accept that AWU’s failure to provide a copy of the deed meant no agreement, nor did absence of written communication between AWU and applicant mean no agreement – Commission satisfied that a binding agreement had been reached of either the type in category 1 or 2 of Masters v Cameron – offer made by AWU accepted and a final document agreed between representatives – clear that a completed agreement was not conditional on an agreement being signed [Zoiti-Licstro v ATO] – a valid and effective accord and satisfaction extinguishes a pre-existing cause of action and continued pursuit of application based on such a cause may be considered without reasonable prospects of success [Australian Postal Corporation v Gorman] – Commission satisfied that a binding agreement was made and unfair dismissal application had no reasonable prospects of success – Commission exercised discretion under s.587 to dismiss application. Nolan v Benedict Recycling P/L t/a Bendedict Recycling P/L
July 15, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant suffered a non-work related injury which prevented her from performing work and sent her medical certificate to the respondent – applicant submitted that when she told the respondent he suggested she should resign – applicant told respondent she did not intend to resign – respondent told applicant he was not going to terminate her employment and that before she returns to work she would need a fitness for work certificate – applicant continued to provide medical certificates – she provided respondent with an expected return to work date – respondent did not respond – applicant tried to call respondent multiple times and get in contact with him via email to confirm when she could come back to work and he did not provide an answer – applicant sent a final email stating if she didn’t receive a reply she will come to the conclusion she has been dismissed – respondent did not respond to this email – applicant subsequently filed an unfair dismissal application – Commission found that as applicant was ready to return to work and respondent failed to respond, this was a repudiation of contract by the employer was termination of employment – Commission prepared to accept unchallenged evidence that employer was a small business – no evidence on which to conclude respondent believed on reasonable grounds that applicant conduct was sufficiently serious to justify immediate dismissal and therefore Commission found Small Business Fair Dismissal Code had no application – termination harsh, unjust and unreasonable – reinstatement not sought – ordered compensation of $4230.80 taxed according to law, and $401.92 for superannuation. Hayes v Austrend International P/L
