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
July 7, 2016
ANTI-BULLYING – bullied at work – s.789FC Fair Work Act 2009 – application for an order to stop bullying directed to employer and executive office of the employer – applicant raised a number of complaints including unreasonable work demands, failure to deliver a promised pay advance and contact from the employer at his home – the applicant submitted that the bullying was repeated and at risk of continuing – employer submitted there was no evidence of bullying behaviour and that the actions of the employer and members of the Board constituted reasonable management action – each of the instances of alleged bullying were considered by the Commission – on any objective analysis of the evidence there could be no finding of unreasonable behaviour towards the applicant – therefore the applicant could not be considered a worker who was bullied at work – application dismissed. Samuel v Inner South-West Community Development Organisation Ltd t/a ISWCDO and Anor
July 7, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – company vehicle allocated to applicant involved in single vehicle accident – applicant stood down on full pay pending receipt of police report regarding incident – respondent subsequently contacted applicant and advised it was undertaking own investigation rather than await finalisation of police investigation – applicant terminated with notice following investigation – applicant asserted the keys to the vehicle assigned to him were either lost by him or stolen from him and the vehicle had been taken by someone unknown to him and involved in the crash – applicant asserted termination unjust because he did not damage vehicle, unreasonable because respondent had wrongfully assumed losing keys to vehicle was reason for vehicle being damaged, unfair and harsh as it was disproportionate to offence – respondent submitted dismissal was fair due to applicants reckless lack of care for its property, breaching its policies and creating risk to his safety and that of third parties – respondent asserted that applicant was aware of all allegations against him and was give opportunities to provide his own account of events – Smith and Others considered regarding circumstantial evidence – found material points to applicant being driver at time of accident – Commission satisfied dismissal was defensible or justifiable on an objective analysis of the relevant facts – valid reason for dismissal – found dismissal not harsh, unjust or unreasonable – application dismissed. Chisholm v Coates Hire Operations P/L t/a Coates Hire
July 7, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.172, 433, 437 Fair Work Act 2009 – application for a protected action ballot order (PABO) – Laing O’Rourke Australia Construction P/L opposed the PABO on the basis that among other things, the ‘Employment Security Clause’ (ESC) was not a permitted matter pursuant to s.172 FW Act and applicant had not been genuinely seeking to reach agreement as required by s.443 – Commission satisfied applicant was genuinely trying to reach an agreement and that ESC was a permitted matter pursuant to s.172 – Commission further satisfied PABO submitted by applicant complied with requirements of s.443 – protected action ballot order made. Construction, Forestry, Mining and Energy Union
July 7, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed under common law contract – annual salary of $160,000 plus 9.5% superannuation – exceeded high income threshold – applicant submitted employment regulated by Hydrocarbons Industry (Upstream) Award 2010 – applicant further submitted he was classified as an operations and processing employee – respondent submitted no classification covered applicant’s position in modern award – whether applicant’s employment covered by modern award – Commission considered it insufficient that some of applicant’s incidental tasks were within classification structure – held applicant’s position could not be described as an operation or processing employee – not necessary to consider classification level – held modern award did not apply to applicant’s position – applicant not protected from unfair dismissal – application dismissed. Simon v ENSCO Australia P/L t/a ESV
July 7, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant submitted that as he was not provided with anything in writing to confirm his dismissal his application should be considered to have been lodged within 21 days – applicant relied upon reason that he was required to assist with his parents’ and his uncle’s affairs – applicant relied, in part, on representative error to explain why his application was not lodged in time as his solicitor advised him to notify the Commission of a dispute rather than make a general protections application – Commission found applicant had not provided a reasonable explanation for the whole of the delay – having considered factors in s.366(2) of FW Act and drawing on Nulty – Commission found no exceptional circumstances warranting an extension of time – application dismissed. Jones v Motorola Solutions Australia P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged outside of statutory requirements – applicant stated dismissal took effect 1 March 2016 – applicant contacted the Commission on the same day to obtain unfair dismissal form – applicant contacted Employee Assist to receive representation – Employee Assist advised applicant that it would ‘make [his] application to the Fair Work Commission’ – applicant contacted Employee Assist on several occasions inquiring about application – Employee Assist failed to return calls – applicant contacted Commission to find out status of application – applicant advised application lodged on 12 May 2016 and out of time – reasonable explanation for delay in lodging application and applicant claim is not unanswerable – extension of time granted – matter referred to conciliation. Younger v SRCM P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – remedy – compensation – ss.392, 394 Fair Work Act 2009 – in previous decision Commission found applicant’s dismissal unfair [[2016] FWC 925] – respondent did not file evidence or material regarding remedy but did request to cross-examine applicant – Commission applied calculation of compensation set out in Sprigg – employment period and productive and devoted service considered – no performance concerns – on evidence applicant would have been employed for at least another 12 months but for dismissal – while not a permanent employee, applicant had reasonable expectation of continuing employment – steps taken by applicant to mitigate loss considered – obtained alternative employment – deduction made due to earnings since dismissal – applicant awarded maximum compensation under FW Act – $24,050 compensation ordered. Kool v Adecco Industrial P/L t/a Adecco
