Twenty eight applicants asserting unfair dismissal will come before the Fair Work Commission today. The full list is: Daily Kosher Catering Pty Ltd (Singh), Toll Customised Solutions (Douglas), NED Kelly’s Pizza (Curtis), Olsen (New Competitive Drilling), South City Plaster (Wallis), Public Services Club Inc (Kennard), Leo Muller Motors (Snyder), National Remote Accommodation Service (Ratzmann), Gough Industries Pty Ltd (Jacob), Sullivan Horan Services Australia (Gill), Retep Nominees Pty Ltd (Ikking), Boradspectrum (Brima), Davies Automotive Equipment Pty Ltd (Scott), F.C. Walker + Sons Pty Ltd (Westwick), St Vincent’s Hospital (Melbourne) Limited (Parsons), Hargreaves Services Pty Ltd aft HMP Service Trust (Harris), Grogans Chemmart Pharmacy (Ansett), HLMK Pty Ltd (Park), Chinese Community Social Services Centre Inc (Siu), Atwood Australian Waters Drilling Pty Ltd (Ashby), Broadspectrum (Brima), QP Management Pty Ltd (Megaw), Falck Pty Ltd (Goh), Jackson Properties Pty Ltd (Coetzee), University of Western Australia (Mitton), Daromi Pty Ltd (Barron).
May 19, 2016
The Fair Work Commission will have a long day in Perth with 34 dispute filings against Atwood Australian Waters Drilling Pty Ltd to be heard by Commissioner Cloghan. The full list is: Southern Cross Group Services (Grobbelaar), Cairns Dive Centre (Root), ACT for Kids (Fraser), UGL Engineering Pty Ltd (Slater), Holy Spirit Northside Private Hospital Ltd (Tsingos), Atwood Australian Waters Drilling Pty Ltd (Baker, Buckingham, Cadd, Cousins, Ditchmen, Forster, Fox, Greenwood, Hadlow, Hancock, Hawkins, Hutchings, Jamieson, Joksovic, Kelly, Lawrance, Lindfield, Marechal, Moore, Munro, Murray, Nostas, Plumbley, Price, Rudyard, Slattery, Sultana, Waghorn, Warren, Watkins, Watt, White, Williams, Worth), Cuddles Child Care Centre Bertram P/L (Scott-Peters), Apple Marketing (Whitham), Maritime Union of Australia (Rigoni), Busways Group Pty Ltd (Webster), Quality Bakers Australia Pty Limited (Rozyn), Fair Work Ombudsman (Kennedy), Andy’s Earthmovers (Asia Pacific) Pty Ltd (Johnston), Otway Health (Kleindienst), Summit Innovations Pty Ltd (Eva), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division (Gee), B.A.R.B Trading (Wilson), Smith’s Trading Trust (Remmers), RACQ Insurance (Goodingham), Southern Cross Group Services Pty Ltd (Cleaver & Dobjeckie), Minda Incorporated (Schwarz).
May 19, 2016
Twenty-one unfair dismissal applications will be heard this morning by the Fair Work Commission. The full list is: Territory Transit Pty Ltd (Agapito & Crombie and Others), Mangoola Coal Operations Pty Limited (Matthews), Cardiff Child Care (Kalisz), Crown Equipment Pty Ltd (O’Connor), Seventy Seventh Claybank Pty Ltd (Cox), Li’l Bearz Early Learning Centre (Bunston), Qantas Airways Ltd (Smith), Catholic Education Office, Archdiocese of Sydney (O’Connell), Bay of Isles Community Outreach Inc (Fraser), MSS Security Pty Ltd (Singh), G8 Education (Smith), Colin Joss & Co Pty Ltd (Acret), Australian Business Academy Pty Ltd (Farnhill), Labour Solutions Australia Pty Ltd (Muhammad), Brisbane Racing Club Ltd (Challinger), JS International (Australia) Pty Ltd (United Voice), Quad Services Pty Ltd (United Voice), JBS Australia Pty Ltd (Coote) and Broadspectrum (Australia) Pty Ltd (Jewell).
May 17, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant drove street sweeper truck – verbally abused and swore at a member of the public, including using threatening gestures, and verbally abused and swore at his team leader – applicant gave evidence downplaying the seriousness of this conduct – Commission did not accept his evidence as reliable – Commission considered applicant’s behaviour was inappropriate and of a serious nature – behaviour in breach of the standards established by respondent and communicated to applicant – Commission found conduct did occur and was a valid reason for his dismissal – earlier warnings relating to similar events had been provided – culture and behaviour of the workplace considered – robust culture, but issues in the team had arisen in the past and been addressed by the respondent with an effort to avoid inappropriate behaviour in the future – dismissal not harsh, unjust or unreasonable – applicant sought to downplay behaviour and defend it as appropriate or excusable, not accepting responsibility or showing contrition in a way which might have impacted on the assessment of his termination – application dismissed. Stratton v City of Greater Geelong
May 17, 2016
ENTERPRISE AGREEMENTS – approval – undertakings – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss an application for approval of 7-Eleven Fuel and Non-Fuel Enterprise Agreement 2015 – agreement proposed to apply to the appellant and other employers operating 7-Eleven outlets – decision of Hamilton DP and Lawrence DP – on appeal Shop, Distributive and Allied Employees Association (SDA) notified Full Bench that they had an interest in the matter – appellant objected to SDA putting submissions – found Commission entitled to inform itself as it sees appropriate – SDA raised a number of matters not raised by the appellant which were appropriate to consider – SDA heard – appellant submitted natural justice breached – submitted errors occurred in the application of the better off overall test and that calculations set out in the decision at Annexure A used only the General Retail Industry Award 2010 as a comparator when in fact the Vehicle Manufacturing, Repair, Services and Retail Award 2010 should have been used – further submitted it was not given an opportunity to put submissions on the rosters which might be used in the future – Full Bench majority found that if assumptions used in modelling contained in Annexure A were changed in the manner suggested by the appellant a different result could conceivably have occurred with respect to the application of the BOOT – found decision was made using the modelling in Annexure A – found Annexure A and the assumptions used in the calculations in Annexure A were not put to appellant – decision at first instance quashed – application remitted to Lawrence DP – decision of McKenna C – found three matters should be considered by Full Bench rather than on referral for determination by a single member – firstly whether the appellant had the capacity or standing to make the application for approval of the agreement – secondly the appellant’s application to adduce new evidence before the Full Bench as to the dates relevant to the provision of the notice of employee representational rights – thirdly the appellant’s application for a drafting error in the agreement to be corrected – Full Bench then considered other aspects of appeal – found Form F17 was declared on behalf of all franchisees – summary document in English provided to employees where 155 employees were from non-English speaking backgrounds appeared inadequate – consideration of requirements of better off overall test – consideration of rosters, indicative rosters and supporting information for the purposes of examining loaded rates – part time employees may be worse off under agreement – consideration of ‘reconciliation’ undertakings [Main People P/L] – found appellant not denied natural justice – found Commission at first instance had squarely put the appellant on notice what would occur if acceptable undertakings were not provided within the timeframe specified – found Commission not constrained to model only the typical roster propositioned by the appellant – Re Knightwatch Security distinguished – use of incorrect comparator award in modelling at Annexure A to the decision attracts public interest to support the grant of permission to appeal – appeal upheld – decision quashed. Appeal by AJ Convenience Services P/L t/a 7-Eleven Rozelle & 7-Eleven Bexley against decision of Roe C of 18 January 2016 [[2016] FWC 330]
May 17, 2016
MODERN AWARDS – 4 yearly review – plain language – s.156 Fair Work Act 2009 – statement on 22 September 2015 indicated Commission would conduct pilot to produce plain language draft of Pharmacy Industry Award 2010 [[2015] FWC 6555] – report on pilot published – plain language drafting can make modern awards simpler and easier to understand – Commission proposes to prepare plain language drafts of award-specific clauses in a number of other modern awards – Clerks – Private Sector Award 2010 – General Retail Industry Award 2010 – Hospitality Industry (General) Award 2010 – Restaurant Industry Award 2010 – consideration to be given to preparing plain language drafts for further modern awards later in 2016 and early 2017 – interested persons invited to comment on the four modern awards selected for redrafting by Friday, 20 May 2016. 4 yearly review of modern awards – Plain language
May 17, 2016
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance that termination was harsh, with no valid reason – applicant dismissed for non-performance of duties – Commission found to be in error – Full Bench held Commission conflated test of whether valid reason existed within s.387(a) with issues relevant under s.387(h) with overall test of whether dismissal was harsh, unjust unreasonable [Parmalat] – found Commission further failed to make required findings regarding extent of applicant’s non-performance of duties per s.387 – appeal raises issues of general application and public interest enlivened [GlaxoSmithKline] – permission to appeal granted – substantive appeal to be heard. Appeal by Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office against decision of Ryan C of 23 March 2016 [[2016] FWC 1844] Re: Shamir
May 17, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – Commission at first instance dismissed application for relief from unfair dismissal – found appellant not dismissed by respondent – appellant alleged Commission did not consider previous authorities and made significant errors of fact – appellant also contended apprehended bias – test under s.400 characterised as ‘stringent one’ [Coal & Allied Mining Services] – Full Bench found Commission gave regard to relevant authorities – found appellant did not demonstrate significant error of fact – found appellant raised number of factual disputes but none related directly to issue of whether or not there was dismissal by employer or whether or not Commission was in error finding that there was no dismissal – Full Bench also found complaint of bias unfounded – public interest not enlivened – permission to appeal refused. Appeal by Kim against decision and order of Gooley DP of 19 February 2016 [[2016] FWC 1029] and [PR577119]] Re: ORC International P/L
