ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.119, 604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision arising under Clause 41 of Nilsen (SA) P/L – Contracting Division Collective Agreement 2013 (Agreement) – at first instance Commission found Clause 41.2(c) provided for pro rata redundancy payments for employees with less than 12 months’ service – Commission found nothing in agreement limited pro rata payment mechanism to employees who had completed at least one years’ service – appellant challenged decision on basis that Clause 41.2(c) did not provide for pro rata redundancy payments for employees who had completed less than one year’s service – Full Bench considered whether appellant’s argument on appeal was correct – considered sub clauses in clause 41 which had three elements – considered clauses against redundancy entitlements as per National Employment Standards under s.119 FW Act and exclusion of obligation to pay redundancy pay under s.121 of the FW Act – Full Bench found that s.121(1)(a) of the Act excluded employee from redundancy pay when they have not had 12 months’ service – Full Bench found that exemption also referred to in last item of Clause 41.3 of agreement – Full Bench found appellant’s arguments not properly advanced before Deputy President who decided matter on written submissions – Full Bench found that appellant never drew Senior Deputy President’s attention to s.121(a)(a) of the FW Act – usual principle is that party should not be permitted to argue case on appeal which was not raised at first instance [Coulton v Holcombe] – where new argument raises pure question of law which could not possibly be affected by any evidence, appellant court may allow the argument as, ‘it is expedient in the interests of justice that question should be argued and decided’ [O’Brien v Komesaroff] – Full Bench found that would be unjust to refuse permission to appeal – Full Bench found that redundant employee with less than 12 months service not entitled to redundancy payments under Clause 41.2(c) – permission to appeal granted – appeal upheld. Appeal by Nilsen (SA) P/L against decision of O’Callaghan of 5 April 2016 [2016] FWC 2095 Re: “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” (CEPU) v Nilsen (SA) P/L
June 10, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – annual leave common issue – June 2015 decision determined some matters and expressed provisional views in relation to a number of other matters [[2015] FWCFB 3406] – September 2015 decision dealt with the wording of the provisional model term in relation to excessive leave and with the model terms in relation to the cashing out of annual leave and granting leave in advance [[2015] FWCFB 5771] – in June and September 2015 decisions the Commission determined model clauses in respect of ‘excessive annual leave’; ‘cashing out of annual leave’; ‘electronic funds transfer and paid annual leave’; and ‘granting leave in advance’ – focus of this decision was whether it was appropriate to vary particular modern awards to insert the model terms – all interested parties provided with an opportunity to make submissions and adduce evidence – insertion of model terms into particular modern awards – excessive annual leave – cashing out of annual leave – granting leave in advance – EFT and paid annual leave – plain language redrafts of certain model terms – number of modern awards to be varied to insert various annual leave model terms. 4 yearly review of modern awards—Annual leave
June 10, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment of employment – s.394 Fair Work Act 2009 – applicant approached respondent requesting leave to visit mother who was critically ill and in a coma in the Philippines – respondent did not approve leave request because applicant had exhausted leave entitlements, could not provide a return date, no notice was provided, and timing did not suit operational requirements of business – applicant proceeded to travel to Philippines – respondent terminated applicant upon return as respondent had not heard from applicant – respondent had replaced applicant with someone else – respondent raised jurisdictional objection that applicant abandoned employment – Commission found valid reason for dismissal but harsh in the circumstances – applicant did not abandon employment – jurisdictional objection dismissed – compensation ordered to the amount of $512.16 less applicable tax. Llauder-Claddy v Phillip Arcidiacono t/a Rose Cleaning Service
June 10, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent raised jurisdictional objection contending dismissal a case of genuine redundancy – applicant submitted that no genuine redundancy because respondent failed to comply with Award consultation obligations – applicant further submitted that reasonable for respondent to redeploy within enterprise and was in fact redeployed to new role due to change in responsibilities – respondent argued that it no longer required the role to be performed; it did comply with the Award consultation obligations and were not able to redeploy applicant – respondent further submitted that the applicant was not redeployed as contended – Commission of the view case of genuine redundancy – Tyszka and Ulan considered – applicant had opportunity to provide input regarding change during team meetings – fact that discussions took place before decision to implement change does not diminish opportunity to provide input – applicant consulted about change and respondent complied with award obligations – redeployment of applicant not possible and applicant did not provide alternative solutions – despite fact applicant continued to perform job, maintain salary and benefits such as company car, no longer able to make decisions affecting ACT branch of respondent such as money expenditure – respondent contended no new contract and no difference in position description – jurisdictional objection upheld – application dismissed – Order issued. Schade v Able Australia Services t/a Able Australia
June 9, 2016
Twenty-five unfair dismissal, appeal and labour dispute cases will be reviewed by Fair Work Commissioners today. The full list is as follows: B&P Caelli Joint Sealing & Waterproofing Pty Ltd & Bensch (Gulle), Aberdeen RSL and Citizens Club (Wilcher), Port Kembla Coal Terminal Limited (Byrnes), Broadspectrum (formerly known as Transfield Services) (Brown & Welsh), Trend Laboratories Pty Ltd (Lowe), Ixom Operations Pty Ltd (Rubesa), Commonwealth of Australia as represented by the Australian Bureau of Statistics (Kaliyaperumal), SapuraKencana Petroleum (Australia) Pty Ltd & Di Giorgi (Cuthbertso), Master Home Improvement Australia Pty Ltd (Baker), Carbridge Pty Ltd (Louw), City of Glen Eira (Atkin), Nissan Casting Plant (Australia) Pty Ltd (Cresp), Racing & Wagering Western Australia (Musiello), Titan Plant Hire Pty Ltd (Van Malsen), Queensland Rail Transit Authority (Costello), Clifford Hallam Healthcare Pty Ltd (Atkins), Millmerran Centenary Retirement Village Inc (Butler), AGAS National (Taylor), Stefan Hair Fashions Pty Ltd (Osborne), John Cole Toyota (Epong), Clinpath Laboratories Pty Ltd (Konstandaras), Brauer Natural Medicines (Kranenburg), Boart Longyear Pty Ltd (West), D & L Morris Real Estate Pty Ltd (Britton), Goldfields Women’s Refuge (Dettoni).
June 8, 2016
Thirty-five will be paraded in the Fair Work Commission portals today, pleading their cases for reinstatement or money. The full list is: The Salvation Army (Bates), Helensburgh Coal Pty Ltd (Cheetham), Broadspectrum (Formerly known as Transfield Services) (Brown & Welsh), Miniprovise (Furina), ENSCO Australia Pty Ltd (Simon), Robert Sim Building Supplies Pty Ltd (Phelps), Coolabah Wine Pty Ltd (Fabrizio), STAAS Printing P/L (Hanneybell), Heritage Motels and Restaurants (Morgan), Goulburn Heritage Motel and Restaurant (Smith), Fairchild Wealth Management Pty Ltd (Hayes), Automated Surveys Pty Ltd (Mastaglia), BGC Residential Pty Ltd (Crimmins), FMG Personal Services Pty Ltd (Williamson), BHP Billiton Iron Ore Pty Ltd (Corunna/Adeley), OSSA Services Pty Ltd (Mahoney), University of Queensland (Frijters), Department of Justice and Regulation (Margetts), Golden Group of Companies (Cooper), The Trustee for the Bickfords Australia Unit Trust & Tollhurst and Others (Siladji), OM Holdings Limited (Kiernan), Phoenix Combat Sports Pty Ltd (Chimlum), Global Express Couriers Pty Ltd (Whitney), MSS Security Pty Limited (Chhikara), Cairns Dive Centre (Root), Totally Aussie Security (Qld) Pty Ltd (Postlethwaite), Active Hearing Pty Ltd (Birch), Highgorve Bathrooms Redcliffe Pty Ltd (Coles), Coombabah Primary School P&C Assn (Hartwig), Barbera Fresh Pty Ltd (Hannay/Sheppard), Making Dough Pty Ltd (Cooper), Clinical Laboratories Pty ltd (Coleman), Southern Cross Cleaning (Zacker).
June 7, 2016
The Fair Work Commission has 33 applications for unfair dismissal labour disputes listed for hearing today. The full list is: Solomon Mineral & Metal Pty Ltd (Robinson), Serco Australia Pty Ltd (United Voice), Sodexo Remote Sites Australia Pty Ltd (Brydon), The Frank Whiddon Masonic Homes of New South Wales (Kaur), Lexxe Pty Ltd (Ma), Quality Bakers Australia Pty Ltd (Mutimer), Helensburgh Coal Pty Ltd (Cheetham), Broadspectrum (formerly known as Transfield Services) (Brown & Welsh), New Competitive Drilling (Olsen), Maxitrans Australia (Pocock), Kentz Pty Ltd (Elsarky), WCH Services Pty Ltd (Sutehrland), Asciano (Reid), Collexion Pty Ltd (Mcllroy), Bingo Industries (Weir), Medical Management Pty Ltd (Druitt), Pioneer Personnel Pty Ltd (Wijeyesinghe), Nigel Frank International Pty Limited (Brand), Curtisey Cleaning Services (Bruce), ACT Government as represented by the Education and Training Directorate (Dayhew), Mosley Mining and Excavation (McQuisten), QBE Insurance Group Limited (Hotait), DHL Express (Australia) Pty Ltd (Casey), Australia Municipal, Administrative, Clerical and Services Union (Sheppard), J. Mavrick Holdings Pty Ltd (Perera), The Trustee for the ASP Trust (Murray), Origin Energy (Wilson), A1 Distributions (Humphries), Hentschke Transport Pty Ltd (Ray), Barrier Social Democratic Club Ltd (Kolinac), Veolia Environmental Services (Australia) Pty Ltd (Newhill), Westside Housing Association Inc (Kreft), Hirotec Australia Pty Ltd (Cailes).
June 6, 2016
Half the Fair Work Commissioners can rest up today with only 20 claimants before the various benches. The full list is: Golden Group of Companies (Cooper), WCH Services Pty Ltd (Sutherland), Brewarrina Business Coop Limited (Eastwood), Inspire Australia Program (Montoya), Commonwealth of Australia (Department of Defence) (Bebawi), Crown Carwash Pty Ltd (De La Cruz), Relationships Australia (NSW) Limited (Golden-Brown), Allstaff Australia Pty Ltd (Redfern), DP World Melbourne Limited (Kirkman), Melbourne Bowling Club (Inc) (Stibohar), Australian Commercial Catering Pty Ltd (Powell & Togia), OSSA Pty Ltd (Mahoney), ACT Government as represented by the Education and Training Directorate (Dayhew), The University of Queensland (Schreiber), Active Hearing Pty Ltd (Birch), Queensland Rail Transit Authority (Costello), Aerocare Flight Supoort Pty Ltd (Singh), Anglicare SA Incorporated (Moore), Adelaide Fuel Distributors (Beagley).
