Twenty-two labour dispute cases are listed for hearing today in the Fair Work Commission. The full list is: Biripi Aboriginal Medical Services (Saville), Mendes & O’Connor and Another (Jordan), Northwest Properties Ltd (Spence), MMA Offshore Ltd (Ballantine), Osaka Gas (Australia) Pty Ltd (Truong), Westpac Banking Corporation (Harris), Patrick Projects Pty Ltd (King & Deeney and Others), Holcim (Coleman), Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust (Budden), Crown Melbourne Limited (Tsiftelidis), Barwon Health (Frank), Rio Tinto Shipping Pty Ltd (Perry), BMS Retail Group Pty Ltd (Rigby), AGL Loy Yang Pty Ltd (Wright), Services South East Pty Ltd (Matthews), Amcal Max Shearwater (Wilson), DP World Melbourne Limited (Kirkman), Laminex Group Pty Limited (Riley), Jemella Australia Pty Ltd (Cronin), Evolution Traffic Control Pty Ltd (Adra), Coles Group Supply Chain Pty Ltd (Clayton) and Marmota Energy Limited (Gray).
July 12, 2016
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – reg.2.06 Fair Work Regulations 2009 – CFMEU applied for protected action ballot order (PABO) – employees covered by Loy Yang Power Enterprise Agreement 2012 – collection of unions representing covered employees as single bargaining unit (SBU) – respondent opposed granting of PABO on grounds that application and draft PABO did not specify group of employees to be balloted – submitted that Commission should not be satisfied that CFMEU had genuinely tried to reach agreement – respondent commenced engaging with its employees in late April 2015 – CFMEU did not want to commence bargaining at time as two senior representatives on leave and wrote to respondent on 11 August 2015 indicating this – respondent submitted that CFMEU representatives not free from ‘control or improper influence’ – CFMEU rejected respondent’s suggestions for bargaining summit and declined further invitations – Commission considered whether application and draft order specified group or group of employees to be balloted – respondent submitted amongst other objections, that unless Commission determined nomination of six bargaining representatives complied with reg. 2.06, could not make order – CFMEU submitted that no uncertainty associated with application and application set out group of employees – further submitted that there was no ‘uncertainty’ as to validity of bargaining representatives – Commission found that absence of guidance as to how s.178(3) FW Act and reg. 2.06 operate in such circumstances – Commission found that dispute regarding status of bargaining representatives matter for court – Commission considered whether CFMEU ‘genuinely tried to reach agreement’ – Commission considered adoption of words ‘has been, and is’ in s.443(3)(1)(b) FW Act as requiring ‘genuinely trying’ to be assessed as a continuum and not in isolation and as important as each other – Commission found that in assessing ‘has been’ component, challenge to determine what to make of past behaviour’ – ‘range of factual considerations may potentially be relevant in that context’ and ‘it is not possible to say that any particular factor or consideration will always be determinative of result’ [Esso] – Commission found that CFMEU did not genuinely try to reach agreement and that tone in correspondence ‘unhelpfully combative’ – Commission found no hard and fast rule as to when past behaviour no longer relevant for purposes of genuine agreement – found that period of bargaining that lacked requisite genuineness can achieve requirements of s.443(1)(b) – Commission found PABO prematurely made – PABO dismissed. Construction, Forestry, Mining and Energy Union v AGL Loy Yang P/L t/a AGL Loy Yang
July 12, 2016
RIGHT OF ENTRY – suspension of permit – s.510 Fair Work Act 2009 – Commission considered whether entry permit held by Mr Roberts should be revoked or suspended – consideration followed two Federal Court decisions (Court decisions) which determined findings of contravention in 2013 and made orders with respect to pecuniary penalties associated with findings of contravention – Mr Roberts submitted there should be no suspension or other action as would be harsh or unreasonable – alternatively submitted suspension, ban or revocation should not exceed minimum three month suspension in ss.510(4) and (6) FW Act – Commission noted the only matter which could impact on mandatory revocation or suspension related to whether revocation or suspension would be harsh or unreasonable – Mr Roberts holder of an entry permit since 2001 and contraventions in Court decisions only contraventions during this period – Commission found history and Mr Roberts’ normal patterns of behaviour did not establish that revocation or suspension would be harsh or unreasonable – mandatory nature of provisions of s.510(1) did not invite avoidance of revocation or suspension on basis that contravention an isolated incident – did not consider that revocation or suspension pursuant to s.510 could be regarded as a further penalty so that it represented harshness or unreasonableness – Court decisions of a different character to considerations which led to s.508 orders as former followed contravention findings and addressed penalty to be applied, whereas latter followed findings of misuse – extent to which events subject of Court decisions occurred nearly three years ago did not go to harshness or unreasonableness – s.510 must be taken on its plain words such that normal consequences of a finding of contravention warranting a fine, brings with it a mandatory entry permit suspension or revocation – having reviewed entirety of circumstances, Commission not satisfied that circumstances meant that suspension or revocation of entry permit would be harsh or unreasonable consistent with s.510(2) – behaviour not of the degree and repetitive nature of certain other CFMEU officials – circumstances supported suspension at lower end of the scale – revocation more appropriate than suspension due to permit expiring in November 2016 – Commission concluded suspension of four months’ duration appropriate – entry permit suspended for four month period from date order comes into effect – issue of a further permit banned over same period. Fair Work Commission v Roberts
July 12, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – second decision for costs order against respondent – Commission issued a decision on 9 March 2016 determining costs application in favour of applicant [[2016] FWC 1504] – applicant produced and filed details of costs per Commission’s directions – respondent agreed to pay most of the costs claimed by the applicant, amounting to $86,170.00 plus personal costs of $1,186.56 as gesture of good faith – no agreement between applicant and respondent as to costs was reached – respondent opposed applicant’s application for costs incurred prior to unfair dismissal proceedings, underpayment of remuneration and back pay, interest and exemplary damages – exemplary damages could not be awarded because Commission is not a court referred to in s.47 of the Protected Disclosure Act 2012 (Vic) – no interest and costs for underpayment of remuneration and back pay awarded, as applicant failed to establish a basis for the claim – all costs relating to pre-dismissal disputation rejected – respondent ordered to pay costs of $87,356.56. Somasundaram v Department of Education & Training, North-Eastern Victoria Region
July 12, 2016
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – jurisdictional objection – respondent argued no jurisdiction to hear application because applicant earned more than high income threshold and not covered by Award or Agreement – applicant’s earnings greater than high income threshold – applicant covered by Innotech Site Services Enterprise Agreement 2011 and therefore high income threshold not relevant – applicant protected from unfair dismissal – administrators appointed under s.436A of the Corporations Act in May 2016 – application lodged against employer who is declared insolvent can proceed – application cannot proceed where there has been resolution of creditors as provided for by s.500(2) of the Corporations Act unless or until a Court grants leave – no suggestion of resolution of creditors for voluntary winding up and that company insolvent at time of resolution – no bar to proceeding – jurisdictional objection dismissed – directions to be issued. Sandy v Innotech Site Services P/L
July 12, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – respondent sought an order for all of the costs it incurred in respect to the unfair dismissal application made by the applicant – applicant filed a notice of discontinuance after hearing – Commission found applicant instigated and co-ordinated the transport of alcohol into a dry community and improperly interfered with pilots in their task of flying aircraft – respondent submitted the unfair dismissal application had no reasonable prospects of success – further submitted it should not have been put to the costs of defending its actions and its costs application should be granted – application under s.611 of FW Act – Commission not satisfied, on very fine balance, that the applicant instituted proceedings vexatiously – Church v Eastern Health considered – Commission satisfied it should have been apparent that the application was made without reasonable cause – satisfied that it should have reasonably apparent to the applicant that his application had no reasonable prospect of success – application under s.400A of FW Act – Commission satisfied it was an unreasonable act on the part of the applicant not to admit the conduct – found applicant engaged in an unreasonable omission that caused costs – Commission found grounds under both s.611 and s.400A of the FW Act on which to award costs – costs awarded from 23 March 2016, the date the settlement proposal was put to the applicant. Milner v Marthakal Homelands and Resource Centre Aboriginal Corporation t/a Marthakal Homelands Resource Centre Inc
July 12, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for engaging in inappropriate conversations on the two-way radio during a 12.5-hour night shift and remaining on the two-way radio for extended periods of time during his shift – Commission determined that respondent had valid reason for dismissal – B, C and D v Australian Postal Corporation T/A Australia Post considered – Commission concluded applicant’s dismissal was harsh, but not unjust or unreasonable – dismissal was ‘harsh in its consequences for the personal and economic situation of the employee’ and ‘because it is disproportionate to the gravity of the misconduct in respect of which the employer acted’ [Byrne v Australian Airlines Ltd] – respondent contended reinstatement not appropriate as they had lost trust and confidence in applicant – Commission satisfied applicant demonstrated enough self-awareness as to his conduct during the shift to give rise to sufficient confidence that such conduct would not recur if reinstated – reinstatement appropriate – respondent ordered under s.391(2)(a) FW Act to maintain continuity of applicant’s employment. Goodall v Mt Arthur Coal P/L t/a Mt Arthur Coal
July 12, 2016
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – applicant terminated for reasons of physical incapacity due to an injury to his left ankle – applicant’s doctor cleared him via certificate as fit to return to work with a restriction on prolonged activity on steep inclines – as a result of receiving this certificate the respondent advised the applicant not to return to work and organised an assessment – as a result of this assessment the respondent determined that the applicant was unfit to carry out the inherent requirements of his role – applicant submitted that respondent did not adequately understand his role so as to correctly interpret this assessment, and that it was reasonable that any restricted work could be reallocated – Commission considered that the applicant’s minor incapacity did not preclude him from carrying out his contractual obligations to the respondent and the inherent requirements of his role – found no valid reason for the dismissal – satisfied the applicant’s dismissal was unfair – reinstatement, maintenance of employment continuity and restoration of lost pay ordered. Billett v West Coast Council
