REGISTERED ORGANISATIONS – records and accounts – inspection – s.604 Fair Work Act 2009 – ss.235, 348 Fair Work (Registered Organisations) Act 2009 – appeal – Full Bench – CFMEU sought permission to appeal decision of General Manager – FWBII requested Commission issue certificates in relation to two named individuals confirming membership with CFMEU under s.348 of RO Act – General Manager issued decision allowing two staff of Commission to inspect CFMEU’s membership records pursuant to s.235(1) of RO Act – purpose of authorisation to establish whether particular individuals were members of CFMEU at certain times – CFMEU objected on basis that did not consider purported exercise of power under s.235 and s.348 proper or permissible – claimed provisions designed to facilitate inspection of records and issuing of certificates to ensure compliance by registered organisations not prosecutions by FWBII – Full Bench rejected assertion that power under provisions limited in this way – Full Bench granted permission to appeal on basis that appeal reasonably arguable and raised issues both novel and likely to have general and ongoing implications – Full Bench looked at legislative history of s.235 – power of Industrial Registrar to authorise inspection could validly be utilised to facilitate the exercise of any powers and rights conferred by Industrial Relations Act 1988 [AFAP v Hamilton Island Enterprises] – noted IR Act contained entire scheme of federal legislation concerning industrial relations so purpose could be authorised for any purpose of scheme – rejected that division of FW Act and RO Act into separate acts had effect of narrowing power conferred by s.235(1) – FW Act and RO Act remain inter-related and co-dependent – discretionary power conferred on General Manager could validly be exercised to facilitate enforcement of obligations under FW Act – legislative history also supported conclusion that implicit power in s.348 of RO Act to issue certificate extended to purposes arising from FW Act and RO Act – context supported interpretation of s.348 whereby proper purpose of issue of certificate to facilitate proof of membership in any court or proceeding – Full Bench distinguished power to issue certificate in this respect from power to issue certificate for purposes of investigation by regulatory authority – held no power under s.348 to issue certificate concerning membership of an organisation merely as aid to investigation by regulatory authority – found power in s.235(1) could not validly be exercised with object of issuing s.348 certificate for that purpose – appeal upheld and decision of General Manager quashed. Appeal by Construction, Forestry, Mining and Energy Union against decision of General Manager of 15 January 2016 [R2016/1] Re: Director of the Fair Work Building Industry Inspectorate
May 30, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – Full Bench – alleged dispute under Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2010 – dispute concerned a failure by the Metropolitan Fire and Emergency Services Board (MFB) to consult in accordance with clause 13 of the agreement in relation to a review being conducted by the MFB concerning recruitment procedures for firefighters (the Review) – MFB taking steps to improve diversity of its workforce, in particular to increase the number of female firefighters – gender quotas of 350 male and 350 female applicants applied – MFB’s position was that changes to its recruitment procedures were not a matter about which it was obliged to consult under the agreement, and a dispute about the changes to its recruitment procedures was not a matter to which the dispute resolution procedure in the agreement applied – matter referred to Full Bench by Commission President pursuant to ss.582 and 615A of Fair Work Act – dispute arose between parties as to whether the whole of the UFU’s application had been referred to the Full Bench, or merely the determination of the legal questions identified in correspondence – Full Bench took the view there had been a referral of the entirety of the matter, but that the legal questions identified would be determined as a preliminary issue –preliminary issue may be stated as ‘are the changes which the MFB proposes to implement arising out of the Review matters about which the MFB was required to consult about under clause 13 of the agreement and which could be the subject of the dispute resolution procedure in clause 19 of the agreement?’ – consideration of matters pertaining to the employment relationship [Cram] – Full Bench considered that the introduction of quotas was not a change to a matter pertaining and was not a matter to which clauses 13 and 15 of the agreement apply – found quotas cannot be the subject of a dispute – preliminary issue resolved – matter listed for final hearing of all outstanding issues. United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board
May 30, 2016
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to terminate United Security Enterprises – Employee Collective Agreement 2012-2014 – in decision at first instance Commission noted no opposition to the application had been received – on appeal, appellant submitted it had not been properly served with application, and that it did not become aware of the proceedings until after the decision was issued – appellant submitted that its views as the employer were not taken into account as required by s.226(b)(i) of FW Act – Full Bench satisfied that incorrect email addresses were used for service, and that service was not affected in accordance with FW Rules – failure to properly affect service meant employer denied opportunity to express views about application – employer unable to provide a copy of application to employees covered by agreement, thereby depriving employees of an opportunity to express views about application – permission to appeal granted – appeal upheld – decision at first instance quashed – application remitted for re-determination. Appeal by United Security Enterprises P/L against decision of Hamberger SDP of 15 February 2016 [[2016] FWCA 1006] Re: Martin
May 30, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance to dismiss unfair dismissal application – grounds of appeal included that Commission erred in finding appellant’s position had been abolished, also that Commission made findings without proper evidentiary basis, ruled some evidence inadmissible and was biased – Full Bench not satisfied any grounds of appeal an arguable case of error – not satisfied in public interest to grant permission to appeal – permission to appeal refused. Appeal by Tan against decision of Hamberger SDP of 11 January 2016 [[2016] FWC 9] Re: Australian Broadcasting Corporation
May 30, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for relief from unfair dismissal dismissed at first instance – appellant dismissed for serious misconduct – dismissal found to be consistent the with Small Business Fair Dismissal Code (the Code) – at first instance Commission relied on Pinawin in determining it was not necessary for respondent to hold a discussion with appellant in order to reasonably conclude that the appellant’s behaviour was sufficiently serious to justify termination – appellant sought permission to appeal – argued Commission erred in applying Pinawin – submitted respondent had an obligation to explicitly inform him of reasons for dismissal [Previsic] – Full Bench not satisfied appealable error demonstrated – satisfied Commission correctly applied Pinawin and that, in the circumstances, a discussion with the applicant prior to termination was not required under the Code – public interest not enlivened – permission to appeal refused. Appeal by Guthrie against decision of Saunders C of 26 February 2016 [[2016] FWC 914] Re: AJ & T Pulbrook P/L t/a Brook Motors
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 Mobile Business Development Manager – respondent submitted applicant was not dismissed but rather resigned of his own volition – ABB Engineering considered – Commission found applicant’s statement was satisfaction of his intent and willingness to resign his employment and end the relationship with the respondent – found likely that the applicant did not clearly resign but inferred he was leaving via his emails – applicant’s willingness to return all work equipment was evidence applicant believed he was concluding his employment at this time – Commission found applicant’s employment not terminated on the employer’s initiative – application dismissed. Packer v BananaCoast Community Credit Union Ltd t/a BCU
May 30, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under RACV Surveillance and Incident Response Officers’ Enterprise Agreement 2013 – 2016 – respondent gave notice to affected Surveillance and Incident Response Officers (SIROs) of the introduction of a 12 week rotating roster – this differed from the existing 9 week rotating roster – effect of 12 week roster that SIROs required to work additional weekends and night shifts – union claims payment of a shift allowance for shifts performed by SIROs on weekends – question to be determined was ‘if an employee is a shift worker under and is in receipt of an annualised salary, is the employee entitled to be paid a shift allowance for work performed on a Saturday or Sunday?’ – Commission considered predecessor agreement which clearly indicated that penalty rates for ordinary hours of work performed on weekends were included in calculation of annualised salary – determined penalty rates pertaining to ordinary hours of work performed on Saturday or Sunday were included in calculation of annualised salary – application dismissed. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) v RACV Services P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as diesel mechanic – removed globe from bus warning light and told apprentice not to watch – applicant submitted task completed under pressure – regular inspection of bus found warning light removed – matter investigated – applicant dismissed – respondent submitted applicant’s conduct was sufficiently serious to justify termination – further submitted that applicant’s actions undermined trust and confidence and removal of risk to health and safety and reputation of business – whether dismissal harsh, unjust or unreasonable – Commission found that actions fell within definition of misconduct – actions had potential to result in reputational damage to respondent – satisfied of valid reason for dismissal – found dismissal not harsh, unjust or unreasonable – application dismissed. Hart v ACT Government as represented by the Territory and Municipal Services Directorate
