ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under The University of Queensland Enterprise Agreement 2010-2013 (the 2010 Agreement) – applicant is a Professor of Economics at the University of Queensland – applicant was involved in supervising a PhD student in a course of research – arising from matters associated with the research, the applicant was subject to an investigation and subsequent allegations of misconduct/serious misconduct under the provisions of the agreement and the University research misconduct procedures – issue with respect to whether ethical clearance had been obtained for the research – applicant contended that the University was in breach of multiple clauses of the 2010 Agreement – University made three jurisdictional objections – first that at the time of making the application the applicant was not covered by the 2010 Agreement as it had ceased to operate – second that a dispute cannot be brought in accordance with the dispute settlement procedure of The University of Queensland Enterprise Agreement 2014-2017 (the 2014 Agreement) because clause 15.3 prohibits a dispute in relation to misconduct/serious misconduct proceedings – third that the applicant had not met the requirements of the dispute settlement procedure in the 2010 or 2014 Agreements such that he could notify a dispute under either of those procedures to the Commission – Commission satisfied that the misconduct/serious misconduct provisions of the 2010 Agreement continued to apply to the applicant and, if he did enliven them, the dispute settlement procedure of the 2010 Agreement also applied in its entirety – satisfied that the applicant instigated the dispute settlement procedure under the 2010 Agreement prior to the approval of the 2014 Agreement – Commission therefore satisfied there was a dispute properly before it – dispute related to a matter arising under the 2010 Agreement as preserved by the 2014 Agreement, and therefore Commission satisfied it has jurisdiction to deal with the matter – Commission satisfied there were substantial flaws and a lack of procedural fairness in the process applied to the applicant with respect to dealing with a complaint about the research – held there were processes in relation to the appointment of his supervisor and the conduct of the investigation that were not in accordance with provisions of the 2010 Agreement or the research misconduct procedures – other matters adversely impacted on the procedural fairness afforded to the applicant – held there was a failure to take into account, in reaching a decision as to the findings and penalty, whether the procedures had been properly applied from early 2013 when the matter first came to the attention of the University – Commission found the process was infected by error from so early on that the fairest thing would be to commence the process from the beginning again, however it was not for the Commission to indicate the fairness or otherwise of the applicant being put through the process again. Frijters v The University of Queensland
July 7, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – reg 1.07 Fair Work Regulations 2009 – s.50AAA Corporations Act 2009 – applicant employed as casual cash in transit security officer – job required applicant to deliver cash floats to retailers and collect and bank accrued cash – expected to have provided floats and collected and banked accumulated cash on same day – if applicant could not complete all banking for the day, he was expected to either deposit cash into bank deposit machine or take it home and cash the next day, as applicant only worked on Mondays and Fridays – respondent submitted concern that applicant’s adherence to procedures and whether performed role as effectively as possible – applicant submitted respondent was being unreasonable and expected too much of him – applicant was dismissed via text message on 24 November 2015 following inability to follow instructions and complete run in way he had been trained – Commission considered whether respondent had reasonable grounds for its belief that applicant’s conduct was sufficiently serious making reference to Ryman v Thrash – Commission found that conduct was misconduct within meaning of Regulation and based on reasonable grounds – found that conduct did not require investigation – found dismissal consistent with Small Business Fair Dismissal Code – application dismissed. Li v Australia Wide Security and Consulting P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked as casual cleaner for a contract cleaning company – dismissed for misconduct after incident where applicant behaved aggressively and abusively toward a contract security officer which resulted in applicant being banned from working at the Queensland Academy of Sport worksite – respondent made jurisdictional objections regarding minimum employment period and employment for a specified task/time – Commission found valid reason for dismissal – applicant notified of reason – dismissal related to conduct, not performance – unlikely respondent’s failure to give applicant opportunity to respond would have resulted in different outcome – dismissal not unfair – application dismissed. Downs v Eaton Services Group P/L
July 7, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under terms of Laing O’Rourke Construction Australia P/L Ichthys Onshore Construction Greenfields Agreement – respondent raised jurisdictional objection to the Commission in proceeding to deal with the three disputes – disputes regarded members or eligible members of applicant having been requested to remove stickers from their hard hats – applicant contended that request by respondent was not lawful or reasonable – applicant further contended clause 6(b)(3) of Agreement obliged respondent to ensure concerns raised by employees in relation to direction to remove stickers from their hard hats, were addressed appropriately – respondent contended clause was ‘aspirational’ and did not impose an obligation on the parties – applicant referred to Big W and ATO to substantiate claim that clause 6 gave rise to an obligation – Commission persuaded by the distinction made by respondent between the clauses in cases referred to by applicant – Commission determined clause 6 was too vague, and necessarily so because it was intended to set objectives and goals and to encourage conduct which might achieve the objectives and goals – it was not intended to give rise to enforceable obligations – applications dismissed. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – Queensland Divisional Branch (CEPU) and Ors v Laing O’Rourke Australia Construction P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – to determine valid reason Commission must be satisfied conduct occurred and justified termination – valid reason found – applicant travelled 25 kilometres over the speed limit without a valid drivers’ licence in breach of respondent’s code of conduct – termination not harsh, unjust or unreasonable in the circumstances – guidelines had specifically contemplated excessive speeding may result in termination of employment – applicant was made aware of guidelines prior to incident – seriousness of misconduct meant response not disproportionate – application dismissed. De Villiers v Electricity Networks Corporation t/a Western Power
July 7, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – Independent Education Union of Australia (IEU) notified of a dispute regarding appointment and/or re-appointment of fixed term staff and whether contract terms accord with the Monash College Proprietary Ltd (Independent Education Foundation Year Teaching Staff) Agreement 2012 – agreement requires teachers be provided with a letter of engagement including a reason for their appointment on a fixed-term – evidence of contracts issued prior to 1 December 2015 not containing any term specifying this – 22 replacement contracts were issued following this date that contained additional wording regarding reasons for appointment – whilst this righted the wrong, the Commission was not convinced that it overcame the earlier incorrectly issued contract – agreement also required that the reason be objectively determined within the constraint of specifically identified activities, where there is no certainty as to the need on an ongoing basis – IEU submitted a determination should be made that the 35 teachers issued with fixed-term contracts in 2016 in fact be considered to have been employed an on-going basis, with a confirmation of such to be provided – NTEIU v University of Wollongong, AIRC applied – held that nothing in agreement would be inconsistent with continuing contracts being imposed in place of the ill-founded fixed-term contracts – decision issued that parties act as though provisions of the agreement had been properly applied – held that if this had this been the case, existing fixed-term staff would have been appointed an on-going basis, with a commencement date of employment being that of any contract contiguous with their current contract – parties to consult on giving effect to this decision. Independent Education Union of Australia v Monash College P/L
July 7, 2016
CASE PROCEDURES – employer in liquidation – ss.394, 587 Fair Work Act 2009 – ss.471B, 500(2) Corporations Act 2001 – application for relief from unfair dismissal – application lodged July 2014 – at a pre-arbitration directions conference held mid-December 2014 parties advised that matter had been resolved ‘in principle’ and they would execute deed leading to applicant filing notice of discontinuance – no notice of discontinuance filed – in April 2015 file was administratively closed by Commission – in March 2016 application made by applicant for matter to be set down for arbitration – applicant argued matter has not been resolved, discontinued or withdrawn – respondent in liquidation – respondent made application to dismiss application for want of prosecution and abuse of process – respondent subject to creditors’ voluntary winding up – s.500(2) Corporations Act 2001 considered – Commission is not a Court which is capable of granting leave under s.500 for an action or civil proceedings to be made or continued – s.471B Corporations Act 2001 does not apply to these circumstances – Smith distinguished – Clifford and Craddock considered – found in circumstances of a creditors’ voluntary winding up s.500(2) Corporations Act 2001 precludes Commission from proceeding with application in the absence of a Court granting leave for action to continue – in circumstances inappropriate to determine respondent’s application to dismiss – application stayed – in absence of applicant providing evidence that an application has been made to a Court in the next 30 days application will be dismissed without further notice. Klemm v Penrice Soda Products P/L (in liquidation)
July 7, 2016
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 226 Fair Work Act 2009 – application by Griffin Coal Mining Company P/L for the termination of an enterprise agreement after its nominal expiry date – parties bargaining on replacement enterprise agreement to the Griffin Coal (Maintenance) Collective Agreement 2012 (Maintenance Agreement) – employees have voted not to approve the replacement agreement finalised by the bargaining representatives – nominal expiry date of Maintenance Agreement was 26 April 2015 – views of the parties considered – Commission satisfied it would not be contrary to the public interest to terminate the Maintenance Agreement – after 12 months of bargaining and a vote on a proposed replacement agreement, the parties have not been able to reach agreement – termination of the Maintenance Agreement will result in reduced conditions of employment for the employees, however, that is contemplated in the scheme of the FW Act – pursuant to s.226(1) of the FW Act, Commission satisfied that it must terminate the Maintenance Agreement because it is not contrary to the public interest to do so – termination of the Maintenance Agreement will take effect from 10 July 2016. Griffin Coal (Maintenance) Collective Agreement 2012
