ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Victorian Public Service Workplace Determination 2012 – question for determination ‘If an employee travels to a temporary workplace, is any period of additional travelling time regarded as time worked and not subject to implied constraints of clauses related to reimbursement of expenses for meal, travel and relocation?’ – considered plain meaning of relevant clauses – no ambiguity arose – no evidence of surrounding circumstances considered – relevant industrial context considered – no regard to subjective intention – Commission determined that employees are entitled to payment for additional travelling time regarded as time worked for travel to a temporary workplace – entitlement not limited to reimbursement for meal, travel and relocation expenses. CPSU, the Community and Public Sector Union v Victoria Police
May 30, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as apprentice bricklayer – respondent a small business providing bricklaying services to a residential builder – in late 2015 the amount of bricklaying work contracted to respondent reduced substantially – after making efforts to mitigate situation respondent reviewed its staffing arrangements – three options explored regarding applicant: suspending the apprenticeship, transferring apprenticeship to another employer, and terminating the contract – after consideration applicant advised he wished to terminate the contract – respondent contended applicant resigned – Commission found applicant did not freely choose to resign, the termination arose as a result of respondent’s actions and thus was at the initiative of the employer – found dismissal could not be regarded a genuine redundancy due to failure in consultation – however Commission held applicant’s dismissal was a result of a shortage of work and the procedural error regarding consultation did not render the dismissal harsh, unjust or unreasonable – application dismissed. Thomas v GH Quality Bricklaying P/L
May 30, 2016
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application by Lend Lease for order that industrial action stop – Lend Lease alleged unprotected industrial action occurring at Sunshine Coast University Hospital site on 5 May 2016 and 6 May 2016, organised by CFMEU and CEPU – on 5 May 2016 protected industrial action was occurring on site in relation to 150 employees of electrical contractor Nilsen – employees unwilling to work when employees of Nilsen conducting a demonstration or picket while taking protected industrial action – Lend Lease submitted 994 workers on site on 4 May 2016 had reduced to 401 on 5 May 2016 and 147 on 6 May 2016 – Lend Lease sought orders against its employees, employees of subcontractors and unions to endure until project due for completion on 12 August 2016 – Commission found industrial action commenced on site on 5 May 2016 and was continuing on 6 May 2016 which was not protected – five employees of Lend Lease and substantial number of subcontractors failed to attend and perform work on dates – no evidence work would be resumed – industrial action occurring for purposes of s.418 FW Act, Commission bound to make order – order made against employees of Lend Lease and subcontractors – Commission not satisfied CFMEU or CEPU were organising industrial action within meaning of s.418(1)(c) – unions entitled to send email requesting subcontractors direct employees to work at an alternative site – no direct evidence of CFMEU organiser’s conduct of allegedly addressing large number of CFMEU workers during work time – not open for Commission to find conduct constituted organising industrial action under s.418(c) FW Act – in considering duration of order against employees, Commission had regard to historical background on site – most recent order in relation to site had expired less than two days earlier – size and importance of project warranted duration sought by Lend Lease – order to endure for remaining length of project – order made against employees to stop, not engage in and not organise industrial action from 6 May 2015 until 12 August 2016. Lend Lease Building P/L v Construction, Forestry, Mining and Energy Union and Anor
May 30, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent a small business – applicant employed as an assistant manager – respondent reviewed video footage showing applicant removing money from cash register and placing in wallet – separate footage of applicant watching pornographic videos at store counter on work computer – applicant previously warned regarding handling of cash – after reviewing Small Business Fair Dismissal Code (the Code), respondent confronted applicant about conduct and after hearing explanation, summarily dismissed applicant on basis of theft from business – theft reported to police – respondent submitted serious misconduct within meaning of regulation 1.07 of Fair Work Regulations and dismissal in accordance with the Code – Commission found respondent believed on reasonable grounds that applicant had stolen cash from business, engaging in conduct sufficiently serious to justify immediate dismissal [Pinawin] – held reviewing video, speaking to manager and giving opportunity to respond constituted reasonable investigation – dismissal consistent with the Code – applicant not unfairly dismissed – application dismissed. Lee v JA Gosden and G Macmillan t/a Dunlop Tyres Kapunda
May 30, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged after the 21 day time period – applicant had been absent from work for extended periods due to ill health – respondent submitted it sent applicant a letter on 19 January 2016 which foreshadowed the possibility of dismissal on the basis of failing to comply with reasonable and lawful directions – sought response by 5 February however no response received – after further attempts to contact applicant, respondent sent letter on 26 February advising applicant of her dismissal – respondent acknowledged it mistakenly failed to attach the second page of the letter, which gave confirmation of the decision to dismiss her – Payroll Office sent applicant email on 29 March about issues to do with overpayments and termination payments – applicant immediately made contact with the Payroll Office to advise she was not aware of dismissal – unfair dismissal application received by Commission on 12 April – applicant submitted application was received within 21 days from the time she received confirmation of her dismissal – Commission held applicant acted promptly to confirm the situation after receiving the email of 29 March, then acted within a reasonable time frame to lodge application – satisfied circumstances uncommon or unusual – applicant entitled to expect she would be provided with unequivocal notice of decision to dismiss her – extension of time granted. Newport v Sensis P/L t/a Sensis
May 30, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – two applications for unfair dismissal remedy – parties agreed to join the applications for the purposes of the conciliation and hearing – respondent raised jurisdictional objections to applications on basis of genuine redundancy – respondent provided BlueScope Steel with load and haul services at Port Kembla – BlueScope Steel sought price reductions from respondent as well as embarking on number of trails with modified manning structures across variety of shifts – in November 2015 BlueScope Steel advised respondent to immediately implement 12 hour day shift structure – respondent met with employees 3 December 2015 and then issued communication that it had made a decision to make 12 positions redundant – communication indicated that selection criteria would be developed and employees would be assessed by a number of supervisors – evidence led indicated that management embarked on the selection process between 30 November 2015 and 7 December 2016 – redundancy requirements of the South Coast Equipment P/L Plant Operator CFMEU Enterprise Agreement 2013 (clause 27.3(c)) considered – respondent acknowledged that did not consult the Union regarding selection criteria to be utilised – respondent argued requirement in agreement was for respondent to consult regarding ‘process of redundancy’ rather than the selection criteria specifically – [Golden Cockerel] considered – Commission found that on ordinary meaning of words in clause 27.3(c) the respondent had an obligation to consult with Union before applying selection criteria – found that even if Commission accepted respondent’s submissions regarding meaning of clause they had obligation to consult – found selection criteria was integral part of redundancy process – on 3 December 2015 respondent said selection criteria would be developed however management implemented selection criteria on 30 November 2015 – s.389 FW Act required respondent to comply with requirements of agreement – respondent failed to do so – found dismissals not cases of genuine redundancy – jurisdictional objection dismissed – Directions for substantive hearing to be issued. Harding and Anor v South Coast Equipment P/L t/a SCE Industrial Services
May 30, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under BlueScope Steel Port Kembla Steelworks Agreement 2012 – respondent proposed to remove entitlement of additional penalty pay previously agreed to by parties in accordance with ‘Slab Yard Agreement’ – proposed change due to decrease in demand for product and thus less labour required – employees accepted a fixed RDO on weekend to compensate for loss but opposed reduced penalty pay – applicant argued proposal unfair and consultation by respondent deficient – respondent submitted in order to maintain operations savings were essential – respondent further submitted that it would be unfair to limit the ability of the company to implement change to improve viability – Commission found that proposal safe and shift roster not changed by fixing RDO – held that proposal efficient, fair and legal – application dismissed. The Australian Workers’ Union v BlueScope Steel (AIS) P/L
May 30, 2016
TRANSFER OF BUSINESS – enterprise agreement – s.318 Fair Work Act 2009 – application by Territory Transit P/L for an order relating to instruments covering transferring employees – applicant sought order to the effect that the Northern Territory Public Sector Enterprise Agreement 2013-2017 would not cover the applicant and transferring employees – requirements in s.318 of FW Act considered – Commission determined such an outcome is in public interest – Commission satisfied order should be made. Northern Territory Public Sector Enterprise Agreement 2013-2017
