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
July 1, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A Fair Work Act 2009 – unfair dismissal application dismissed in [2016] FWC 1962 – respondent to unfair dismissal application (Respondent) made an application for costs under s.400A of FW Act – Respondent submitted it incurred costs because of unreasonable omission by Applicant in failing to respond to directions issued by Commission – Commission not satisfied that an unreasonable act or omission of Applicant caused costs to be incurred by Respondent – not satisfied causal nexus existed between unreasonable act or omission by Applicant and costs incurred by Respondent – costs application dismissed. Aminjarrinja Enterprises P/L v Paterson
July 1, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.391, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as afternoon shift driver – respondent contended that applicant forcefully elbowed another employee in the side after leaving a meeting of employees – applicant said incident never happened – standard of proof required to establish a valid reason is the civil standard of proof on the balance of probabilities [Briganshaw v Briganshaw] – applicant had poor work record – was on final warning due to misconduct whilst driving one of the respondent’s vehicles – evidence did not establish to the reasonable satisfaction of the Commission the applicant physically assaulted another employee by forcefully elbowing him in the side – Commission found respondent did not have a valid reason for the dismissal – found dismissal was harsh, unjust and unreasonable – reinstatement appropriate – respondent ordered to maintain both continuity of applicant’s employment and period of applicant’s continuous service with respondent under s.391(2) of FW Act. Stone v Citywide Service Solutions
June 30, 2016
The Fair Work Commission has approved the Firesafe Sprinkler Systems and CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2015-2019.
June 30, 2016
Twenty-one allegations of unfair dismissal will be heard by the Fair Work Commission today. The full list is: The trustee for Theo Sourlos Family Trust No. 2 (Baker), Yalbillinga Boori Day Care Centre Aboriginal Corporation (Ingram), Hillsbs Co. Pty Ltd (Perry), Taxa Australia Pty Ltd (Wang), AMP Services Limited (Wilkinson), Australian Postal Corporation (Southwell), Pathfinders Ltd (Felkin), Maxam Australia Pty Ltd (Bushel), Gravity Discovery Centre Foundation Board Inc (Dickinson), Carbridge Pty Ltd (Louw), Sarens Australia Pty Ltd (Roberston), Worsley Alumnia Pty Ltd (Bream), Benedict Recycling Pty Ltd (Nolan), Lifeview Residential Care (Devlin), Holmesglen TAFE (Gnanasekaren), Highland Pallets Pty Ltd (Jeganathan), Devonport GP Superclinic (Anthony), Colemans Group Australia Pty Limited (Cleland), Anglo Coal (Dawson Services) Pty Ltd (Frethey), Eureka Operations Pty Ltd (Cutting), Mitchels Quality Foods (Gacayan).
June 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – on 23 March 2016 the Full Bench issued a decision granting the appellant permission to appeal on the grounds of appeal regarding the assessment of compensation awarded in his favour [[2016] FWCFB 1795] – appellant dismissed after misuse of company fuel card – at first instance the Commission found the respondent denied appellant procedural fairness – held dismissal unfair – appellant awarded compensation of four weeks’ pay plus superannuation – appellant appealed the assessment of compensation – whether compensation assessment addressed criteria under s.392 of FW Act – calculating compensation requires orthodox approach [Bowden] – Full Bench found Commission miscarried discretion by failure to consider factors in s.392 – appeal allowed on that ground – first instance compensation order quashed – Full Bench re-exercised discretion by reference to each of the factors in s.392 – relied on evidence before Commission at first instance – determination of the period of time the appellant would have remained employed by the respondent, or would have likely remained employed with the respondent, had he not been dismissed – while the task of determining an anticipated period of employment can be difficult, it must be done [McCulloch v Calvary Health Care Adelaide] – Full Bench found applicant’s employment would have continued for a further three weeks – considered the remuneration earned and income reasonably likely to be earned – found appellant took steps to mitigate the loss of his employment – held the conduct which founded the valid reason for termination could be characterised as misconduct – any amount of compensation to be paid should be reduced by 50% by reason of that misconduct – Full Bench decided to award no compensation. Appeal by Smith against decision of Riordan C of 21 October 2015 [[2015] FWC 6900] Re: Buick Holdings P/L t/a DVG Automotive Group – Midland City
June 29, 2016
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision of Hamberger SDP to terminate the Sedgman Employment Services P/L Bowen Basin Front Line Employee Enterprise Agreement 2011-2014 (Agreement) – agreement negotiated by Sedgman Employment Services but applied to Peabody Energy after Peabody insourced certain operations – agreement had reached nominal expiry date – Peabody’s application to terminate agreement granted on grounds that agreement was negotiated in very different circumstances, by a different organisation, with provisions irrelevant to Peabody – Hamberger SDP satisfied termination of agreement not contrary to public interest and would facilitate bargaining for new agreement – Construction, Forestry, Mining and Energy Union (CFMEU) appealed on the basis that the decision was attended by appealable errors, that Hamberger SDP took an erroneous approach to the public interest by taking into account his own views about the suitability of the current terms of the agreement, and that the primary findings or conclusions were in error because they were purely speculative or not supported by evidence – appeal may only proceed if Commission satisfied public interest enlivened – Commission not satisfied public interest enlivened or that permission to appeal should be granted on discretionary grounds – Commission not satisfied decision at first instance was attended by sufficient doubt to warrant its reconsideration – Commission not satisfied appeal raised any legal or industrial issue of general significance or that refusal to grant permission would result in any manifest injustice to CFMEU or its members – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Hamberger SDP of 11 March 2016 [[2016] FWCA 1595] Re: Peabody Energy Australia PCI Mine Management P/L
June 29, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged approximately three months and ten days late – during this period applicant believed the dismissal was a genuine redundancy – applicant then became aware similar position had been advertised – formed view that dismissal was not a redundancy – Commission found circumstances were exceptional – appropriate to fully test the contention that the termination was a case of genuine redundancy – extension of time granted. Wijeyesinghe v Pioneer Personnel P/L t/a Pioneer Facility Services
