ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application lodged by AWU to deal with a dispute in relation to the BlueScope Steel Springhill Workplace Agreement 2015 – dispute concerned letter sent by respondent to employees of its Springhill Plant in Port Kembla, regarding implementing proposals for the training of Despatch operators to perform tasks in the Painting and Finishing Department (PFD) on a relief basis – applicant submitted the changes did not satisfy the agreement criteria as they would not be safe, efficient, legal and fair – applicant’s opposition was also based on an alleged lack of consultation – initial discussions held in context of implementing labour cost savings at the Springhill Plant following a collapse in the price of steel – mediation conducted by Commission was held on 8 September 2015 to assist process of identifying labour cost reductions – further letter referring to training in additional tasks sent on 18 March 2016 – conciliations conducted by Commission aimed at resolving the issues between parties over consultation and a compromise position advanced by applicant were not successful – further letter sent by respondent on 5 May 2016 – applicant submitted the onus should be on respondent to demonstrate the changes proposed were safe, efficient, legal and fair – this approach was rejected as the criteria were the same as those in the 2012 agreement applied in BlueScope Steeel (AIS) P/L v AWU and Ors – Commission did not accept that applicant was prejudiced to advance its case due to a lack of consultation – held that a proposed significant change cannot be considered legal if there has not been substantial compliance with consultation processes – held that only the proposed change for operators to perform basic station 5 duties on the Packline was found to be legal as it substantially complied with the agreement – found that proposed change would also be safe, fair and efficient – Commission held that implementation of this proposed change may proceed, and that respondent can recommence consultation about other proposals for change contained in their letter of 5 May 2016. The Australian Workers’ Union v BlueScope Steel Limited
July 1, 2016
MODERN AWARDS – award modernisation – modern enterprise award – Sch. 6, Items 4, 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – application by the Government of the Australian Capital Territory to make a modern enterprise award entitled the ACT Public Sector Enterprise Award 2016 to replace and consolidate various current enterprise awards in the ACT public sector – applicant and relevant unions in support of the application – Commission considered the relevant factors in Schedule 6 sub-item 4(5) of the TPCA Act – modern awards objective and minimum wage objectives considered – held ACT public service a unique entity and no real industry of the ACT public sector beyond the applicant – relevant current enterprise awards have a long and distinct history – terms and conditions of the current enterprise awards are enterprise specific terms and conditions, thus a consolidated and modernised Award is the most suitable vehicle for a fair and relevant minimum safety net in the future – industry specific modern awards do not reflect the needs, terms and conditions of employees in the ACT public sector – without a modern enterprise award ACT public sector employees would need to be covered by a large number of modern awards which may lead to difficulties in enterprise bargaining and fragmentation of the award safety net – hence, compelling case for making of modern enterprise award for the ACT public service – proposed enterprise award made in terms agreed between the parties. Re: ACT Public Sector Enterprise Award 2016
July 1, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – annual leave – Full Bench issued a decision (the May 2016 decision) dealing with the variation of modern awards in relation to a number of matters regarding paid annual leave [[2016] FWCFB 3177] – decision varied particular modern awards to insert the model terms in respect of: cashing out of annual leave; electronic funds transfer and paid annual leave; granting annual leave in advance; and excessive annual leave – draft determinations published to provide interested parties with opportunity to comment – May 2016 decision proposed some plain language redrafting of three of the model terms: cashing out of annual leave; annual leave in advance; and excessive annual leave – the changes proposed were intended to make these terms easier to understand, they were not intended to change the substantive effect of any of the model terms – in the May 2016 decision the Full Bench expressed some provisional views regarding the insertion of certain model terms into particular modern awards – in each instance interested parties were provided with an opportunity to notify the Commission, by 1 June 2016, if they wished to contest the Full Bench’s provisional views in respect of any of these matters – no notifications were received – Full Bench will now give effect to the provisionally expressed views – particular modern awards will be varied to insert the model excessive leave term – draft determinations varying modern awards in accordance with the May 2016 decision and the changes addressed in this decision will be published on the Commission website by close of business on Friday 1 July 2016. 4 yearly review of modern awards – Annual leave
July 1, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as a Trainee Scaffolder on a weekly hire basis – two major clients advised that scaffolding work was to become less frequent – as a result, respondent advised applicant that employment could only be retained on a casual basis – applicant asserted that respondent retained other weekly hire positions and ongoing work was available – applicant further asserted the consultation process did not meet requirements set out in The Pilbara Access P/L Agreement 2014 – Commission satisfied that evidence put forward established respondent no longer required to undertake employment on weekly hire basis – a decrease in the demand for labour meant that respondent could no longer sustain weekly hire employment – fact that other employees not selected for redundancy did not detract from redundancy circumstance – Commission satisfied the requirements of s.389(1)(a) of FW Act had been met – satisfied respondent had taken appropriate steps to explore reasonable redeployment options – held requirements of s.389(2) had been met – dismissal consistent with definition of genuine redundancy – termination of employment cannot be regarded as unfair – application dismissed. Roberts v Pilbara Access P/L t/a Pilbara Access
July 1, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as diesel mechanic – applicant sent an email to respondent detailing complaints regarding respondent’s actions and concluded that he could no longer work under those circumstances and would not return effective immediately – applicant had been stood down from work on the basis that an investigation was to be undertaken into a truck incident upon which he had worked – applicant’s complaints involved the investigation process – applicant asserted he was forced to resign because of respondent’s actions – respondent asserted that applicant voluntarily resigned and its conduct did not intend or have the result of causing resignation – Commission satisfied that respondent’s investigation applied a normal, understandable approach – Commission not satisfied that the manner in which investigation conducted had any of the characteristics of bullying behaviour asserted by applicant, simply that there was a safety issue investigated and acted upon by respondent – Commission not satisfied that applicant’s allegations objectively met tests in Mozahab and O’Meara such that decision to resign should be regarded as a dismissal at respondent’s initiative – Commission not satisfied that respondent breached policies and procedures or that in any event this left applicant with no alternative other than to resign – Commission not satisfied that respondent under an obligation to either refuse to accept applicant’s resignation or to ensure that he meant to resign – Commission found no dismissal at the initiative of employer – for purposes of s.385 of FW Act applicant not dismissed – application dismissed. Townend v Toll Transport P/L t/a TRGL Equipment
July 1, 2016
TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection – appropriate test to determine award coverage was the principal purpose test – needed to assess the principal purpose of the primary function of applicant’s employment – modern awards fall into three categories and the Professional Employees Award 2010 was the third category hybrid covering both employers in the industries and occupational coverage [Halasagi] – whether applicant performed professional engineering duties as defined by the award [Baptista] – respondent was a national civil construction contractor – respondent hired applicant in Project Manager role – applicant held a Bachelor of Engineering – tertiary qualifications listed in role’s advertisement were not mandatory – ‘design management’ does not include designing projects – applicant was not qualified to undertake project design – managerial duties separated applicant’s role from award-based employment – Commission held it was unnecessary to hold an engineering degree or equivalent to perform the role – award Schedule B duties performed by applicant were not the primary purpose of his role – Commission found that the modern award did not cover the applicant – application dismissed. Whelan v BMD Constructions P/L
July 1, 2016
TERMINATION OF EMPLOYMENT – other termination proceedings – related court proceedings – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for misconduct – matter not resolved at conciliation – applicant sought indefinite adjournment as police investigation was ongoing – Commission granted two month adjournment – applicant sought further adjournment pending decision of investigation – respondent did not oppose application and further two month adjournment was granted – following second adjournment, applicant’s representative advised that no criminal charges had been laid civil proceedings had been commenced against applicant in County Court – a further adjournment was sought by applicant, who submitted it was inappropriate to have two trials dealing with the same issues as it could lead to inconsistent findings of fact – applicant submitted County Court matter should proceed first – Commission adjourned matter until February 2016 – no change in status of investigations – no criminal charges laid but County Court matter adjourned to preserve applicant’s privilege against self-incrimination – McMahon considered – Commission held applicant was on notice since respondent’s response to application alleged she was guilty of misconduct – applicant always at risk in commencing these proceedings – should applicant choose to give evidence in relation to the allegations relied upon by respondent, her evidence could be used against her in other proceedings – if matter proceeds applicant can exercise her right not to answer questions that may incriminate her – Commission not able to draw any adverse inferences from any decision applicant makes to exercise that right – Commission held matter should not be further adjourned – unlikely that County Court will hear and determine matter in near future – Commission and Court will determine different issues – Court will need to determine if applicant had misappropriated funds – Commission to determine if dismissal harsh, unjust or unreasonable – directions to follow. Morton v Lardner Mechanical Repairs P/L
July 1, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute arising under The Visy (Kings Park, Cavan and Forrestfield) and United Voice Enterprise Agreement 2013 – applicant received ‘first written warning’ following allegations of harassment – applicant unsuccessfully attempted to email investigation report conducted by respondent to union – respondent issued final written warning for breach of confidentiality and company policy – respondent submitted applicant was dishonest when asked if he had disclosed report – respondent raised jurisdictional objection that not all steps in dispute settlement procedure exhausted – applicant submitted final written warning should be removed – Commission considered it had broad discretion to arbitrate pursuant to dispute settlement procedure in agreement [Lend Lease] – held applicant was dishonest when asked by respondent whether report provided to union – final warning was appropriate – application dismissed – recommendation issued for respondent and union to agree on provision for relevant documentation, subject to confidentiality, to be provided to union to enable representation of members in disciplinary matters. Higgins v Visy Packaging P/L
