INDUSTRIAL ACTION – order against industrial action – protected action ballot – ss.418, 449, 461 Fair Work Act 2009 – application for an order to stop industrial action – union served notice on Suez of intention to take industrial action on 13 May 2016 – 24-hour stop work – whether industrial action is protected or not – order sought based on apparent non-compliance of ballot order made by Commission on 26 April 2016 – draft order stated voting would ‘close 20 working days from the date of this order’ – on 28 April 2016 the Australian Electoral Commission (AEC) provided notice to parties that the ballot would open on Friday, 6 May 2016 at 2:30pm and close at 5pm the same day – Commission satisfied that ballot conducted by AEC not conducted in accordance with ballot order and the requirements of s.449(2) of FW Act in that the voting did not close 20 working days from the date of the order – Suez contended this meant ballot not valid for the purposes of the FW Act and the proposed industrial action was not therefore protected industrial action – s.461 provides validity of protected action ballot not affected by technical breaches – breach in question effectively meant that ballot conducted quicker than envisaged by the terms of the order – Commission satisfied breach of protected action ballot order only a ‘technical breach’ with no substantive consequences – held ballot was valid and industrial action protected – application dismissed. Suez Recycling Recovery P/L v Transport Workers’ Union of Australia
May 30, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – applicant made application for unfair dismissal remedy – dismissed after testing positive at work for drugs – applicant attended medical practitioner immediately after test administered and medical practitioner took urine sample from applicant – test apparently returned a negative result – applicant attached purported results of urine test to his witness statement – medical practitioner gave evidence applicant manipulated results – Commission satisfied applicant knowingly attached drug test result to his witness statement which he knew to be false, and deliberately gave false evidence under oath during hearing about the drug test facilitated by medical practitioner – Commission of the view applicant caused all of costs of the proceedings by making an application to the Commission and maintaining it until discontinued – applicant ordered to pay costs of $18,618.31. Green v Toll Holdings Ltd
May 30, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Hydraulic Hose Technician – respondent objected on basis applicant resigned – argument over provision of accommodation and meals – altercation between parties – competing evidence considered – Commission found applicant not dismissed at initiative of respondent, but rather resigned his employment in a moment of pique – applicant made no effort to rescind his resignation subsequently – found no dismissal – application dismissed. Dwyer v Steelcon P/L t/a Steelcon Cava
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant the recipient of a training wage under the supported wage system – worked three days per week – dismissed for using offensive language towards his supervisor – applicant admitted using the phrase but said it was ‘out of character and arose from frustration at being criticised’ – B, C and D v Australian Postal Corporation adopted – applicant suffers from cerebral palsy – Commission found respondent did not have sufficient regard to the disability of the applicant – found no evidence of anger or aggression – satisfied applicant’s words, in context, did not constitute a valid reason for dismissal – found no valid reason – applicant unfairly dismissed – reinstatement not appropriate – compensation of $3,850 ordered. Kazmar v Test-Rite Imports Australasia P/L t/a Medalist
May 30, 2016
RIGHT OF ENTRY – application for permit – conditions – s.512 Fair Work Act 2009 – application for right of entry permit by CEPU for Mr Metcher – Mr Metcher issued with a series of permits over past years – issue raised regarding non-disclosure – allegations of assault on another CEPU member – incident occurred during break in bargaining negotiations – assault charges discharged on basis of diversion plan and no conviction recorded – Commission satisfied non-disclosure did not prevent Mr Metcher from being considered a ‘fit and proper person’ – entry permit issued subject to condition that further training be undertaken. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division – New South Wales Postal and Telecommunications Branch
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by the respondent from August 2012 until 17 September 2015 – applicant received warnings for two instances of drug use at work prior to 27 August 2015 – applicant dismissed on 17 September 2015 after respondent’s investigation determined the applicant had used synthetic cannabis in the car park prior to leaving work on 27 August 2015 – applicant was then involved in a car accident on the way home from work – applicant submits that he did not use cannabis on 27 August 2015 and there is no reliable evidence to prove otherwise – Commission tasked with determining whether applicant used cannabis on 27 August 2015 – parties agreed that if Commission found the applicant had used synthetic cannabis application will be dismissed otherwise there would be no impediment to the applicant returning to work – Commission held on the balance of probabilities that the applicant smoked cannabis prior to or during his journey from work on the 27 August 2015 – held that the police statements at the accident scene are reliable – application dismissed. Wright v AGL Loy Yang P/L
May 30, 2016
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – application for stay of decision finding redeploying 29 vegetation officers were acting in conformity with obligations in Essential Energy Enterprise Agreement 2013 – respondent did not oppose stay application – principles in Kellow-Falkiner Motors applied – found arguable case with reasonable prospect of success in this matter – balance of convenience favoured granting of stay – decision stayed pending hearing and determination of appeal. Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against decision of Hamberger SDP of 11 April 2016 [[2016] FWC 1826] Re: Essential Energy
May 30, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.437, 615A Fair Work Act 2009 – Full Bench – CFMEU is a bargaining representative of a number of employees to be covered by a proposed enterprise agreement that would cover all persons employed by AGL Loy Yang and AGL Energy Limited (AGL Energy), or a related body corporate of AGL Energy – AGL Loy Yang agreed to bargain – CFMEU applied for a protected action ballot order (PABO) – matter referred to Full Bench by President of Commission under s.615A of FW Act – both AGL Loy Yang and AGL Energy opposed the grant of a PABO on grounds including that the CFMEU could not apply for a PABO because there had not been a notification time in relation to the proposed enterprise agreement – at the time the CFMEU applied for a PABO there was no agreement by AGL Energy to bargain – CFMEU sought to amend the application by altering the identity of the group of employees to be balloted so as to limit that group to employees of AGL Loy Yang – AGL Loy Yang submitted that there had been no notification time for the proposed agreement – Full Bench held that the CFMEU had proposed an agreement with more than one employer at the time that it applied for a PABO – found that because one of the employers had not agreed to or initiated bargaining there was no valid application for a PABO – application for a PABO dismissed. Construction, Forestry, Mining and Energy Union v AGL Loy Yang P/L t/a AGL Loy Yang
