NEWS HR

INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order that industrial action not occur and not be organised – order directed to CFMMEU, certain representatives of CFMMEU and service employees who have CFMMEU as bargaining representative (employees) – whether periods of travel before and after notified stoppage (impugned conduct) was ‘industrial action’ within meaning of s.19 of FW Act – industrial action impending or probable – employees indicated intention to participate in stoppages of work – employees left customer jobsites before notified commencement time of two hour stoppage to travel back to branch for stoppage – employees then travelled back to customer’s site after cessation of stoppage – employees paid for travel time – impugned conduct not work customarily performed by employees – employees had, and continue to have, a concern about a risk to their health or safety – Commission found employees concerns not reasonable upon evidence – no imminent risk – impugned conduct not based on this concern – health and safety exception not established on evidence – found impugned conduct was industrial action – order issued. Hitachi Construction Machinery (Australia) P/L v Construction, Forestry, Maritime, Mining and Energy Union

TERMINATION OF EMPLOYMENT – contract for specified season – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that appellant was a seasonal employee and finished work when the season ended – Commission found appellant not dismissed – grounds for the appeal included that the Commission did not distinguish between an employee contracted for a specified season and an employee engaged for multiple seasons, that Commission incorrectly applied s.382(2)(a) of the FW Act, and failed to consider continuity of service provisions in enterprise agreement and that appellant was denied procedural fairness – the Full Bench found Commission took the matters into account – Navitas considered – found procedural fairness was upheld – application for the admission of fresh evidence refused – Full Bench not satisfied that any of the appellant’s grounds of appeal had been made out – permission to appeal granted – appeal dismissed – each party to bear their own costs. Appeal by Galbraith against decision of Spencer C of 7 December 2017 [[2017] FWC 4410] Re: Wilmar Sugar P/L t/a Wilmar Sugar

Thirty-three unfair dismissal/labour dispute applications are currently awaiting a hearing in the Fair Work Commission. The list includes: Ferrymen (Port Macquarie) Pty Ltd (Condie), BHP Coal Pty Ltd (Macklin), Toyota Material Handling Australia Pty Limited (Jarvis), FOODORA Australia Pty Ltd (Klooger), Holy Family Services Pty Ltd (Telling), Western Motorcycles Pty Limited (Bognar), NJ Construction Pty Ltd (Sudheer Kossery), Healthe Care Australia Pty Ltd (Smart), Sydney Trains (Zidan), Integrated Technologies Australia Pty Ltd (Lawther), Commissioner of State Revenue (Parolin), Freedom Pools & Spas (Harrison), The Salvation Army (Barnes), R M Begg Kyneton Aged Care Inc (Dunbar), Clover Installers Pty Ltd (Kalvoda), Ulan Coal Lines Limited (Wicks), VicGarden Parking Pty Ltd (Mighton), Celebral Palsy League of Queensland & Hellyer), KDR Victoria Pty Ltd (Davila), Australian Crane and Machinery Pty Ltd (Shakotko), Metcash Trading Limited (Kalweit), CEVA Logistics (Australia) (Hillman Te Moananui), AHS Hospitality Pty Ltd (Bilsborough), Glencore Mount Isa Mines (Haigh), Tabcorp Holdings Limited (Costelloe), Cerebral Palsy League of Queensland & Hellyer (Wilson), MSS Strategic Medical and Rescue (Wardle), Olympic FC (Sottile), Colliers International (SA) Pty Ltd (McCouaig), Eldercare Inc (Kennedy), Crossways Lutheran School Ceduna Association Inc (Puccio), Ausmech Solutions Pty Ltd (Exelby), Bunnings (Mitchell).

The lawlist involving unfair dismissal/contract dispute awaiting a Fair Work Commission hearing includes: Essential Energy (Beltrame), QUBE Logistics (SB) Pty Ltd (Greenfield), Advanced Laundry Systems (Lancaster), RM & RM Services Pty Ltd (Harris), Gordon Riley Pty Limited (Britton), Midway Metals Pty Ltd (Pham), Team Roof (McCallum), Pilbara Iron Company (Services) Pty Ltd (Tito), Hank International (Poljakovic), Industrial Foundation For Accident Prevention (Florenca), KDR Victoria Pty Ltd (Templeton), HYDE, NYSSA Jane (Hayter), Australian Government Department of Human Services (Gadzikwa), L.U. Simon Builders Proprietary Limited (Anderson), Next Business Energy (Bolanos), ANS Southern Pty Ltd (Judd), Maritimo (Wolland), Midway Metals Pty Ltd (Pham), Telstra Corporation Limited (Maher), Farmhouse Furniture Australia P/L (Braack), Local Fire Pty Limited (Halbert), Country Acres (Hall), Gordon Riley Pty Limited (Britton), Lake Illawarra Pre-School and Kindergarten (Bond), Woolworths Group Limited (Hua), HDR Inc & HDR Pty Ltd (Sinden), Lothlann Pty Ltd (Hanna), Oki Data Australia Pty Ltd (Walsh), Serco Australia Pty Limited (Morgan), Bronze Hospitality (Hansson), Team Roof (McCallum), Salini Australia Pty Ltd (White), Stows Waste Management (Zaia), James Reynolds (Arklay), Scope (Aust) Ltd (Samarasekera), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ellis, Finn, Harvey, Oestamann, Patten), Leading Edge Maintenance (O’Bryan), Migrant Resource Centre North-West Region Inc (Sharma), Victoria Police (Davies), A1 Colon Hydrotherapy Brisbane (Marambio), Modinex Manufacturing Pty Ltd (Watkins), The Motor Hospital Pty Ltd (Brunger), UQ Biological Resources (Mao), Community Accommodation & Respite Agency Inc (Noble).

Seventeen unfair dismissal/contract dispute applicants will be heard in the Fair Work Commission today: CVEM Security Group Pty Ltd (Martinelli), Ausgrid Management Pty Ltd (Arampamoorthy), Rui Garces (Pradhan), Hillsbus Co. Pty Ltd (Bajwa & Fuentes and Others), Monash Health (Sullivan), KDR Victoria Pty Ltd (Davila, Templeton), Suncorp Staff Pty Ltd (Vautin), ANZ Banking Group Limited (Kaur), Allity Aged Care Pty Ltd (Moloney), Mentone Girls Grammar (Bernard), VDROP (Dharumasena), South Pacific Health Club Pty Ltd (Cagran), Australian Leisure and Hospitality Group Pty Ltd (Harston), Negri Contractors (Vic) Pty Ltd (Misconi), Airservices Australia (Jones), Community Accommodation & Respite Agency Inc (Noble).

INDUSTRIAL ACTION – suspension of protected industrial action – endangering life – s.424 Fair Work Act 2009 – application to suspend or terminate protected industrial action to be taken by members of the TWU employed within Broadspectrum’s Court Security and Custodial Services operations in Western Australia – application in response to a notice of industrial action sent by the TWU to Broadspectrum on 29 October 2018 – Commission accepted evidence that each of the bans threatened the health and safety or welfare of part of the population, being prisoners in the care of Broadspectrum’s staff, Broadspectrum’s staff themselves, other persons working within the vicinity of courts and hospitals and members of the public attending courts and hospitals where prisoners escorted by Broadspectrum’s staff were present – satisfied that the protected industrial action would threaten to endanger the personal safety, health or welfare of part of the population – found suspension of the industrial action was appropriate – protected industrial action to be suspended until 9 January 2019. Broadspectrum (Australia) P/L v Transport Workers’ Union of Australia

ENTERPRISE AGREEMENTS – termination of agreement – Sch. 3, Item 16 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – ss.225, 226 Fair Work Act 2009 – application to terminate the Godfreys Employee Collective Agreement 2009 – collective agreement-based transitional instrument – agreement approved by Workplace Authority pursuant to s.327 of the Workplace Relations Act 1996 (Cth) sometime between January 2009 and 26 May 2009 – last wage increase provided for under the terms of the agreement was in July 2011 – agreement has passed its nominal expiry date – Commission satisfied it was not contrary to the public interest to terminate the agreement – appropriate in the circumstances of this case to grant the application – ordered termination of agreement – termination will be prospective and take effect on 29 December 2018. Godfreys Employee Collective Agreement 2009

TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that the employee had been unfairly dismissed – appellant sought permission to appeal against jurisdictional decision of March 2018 as well as the merits and compensation decision of June 2018 – jurisdictional appeal lodged 86 days outside of 21 day time limit – Full Bench rejected appellant’s submission that the jurisdictional decision was in the nature of a preliminary or interlocutory decision – application to extend time for filling appeal against jurisdictional decision rejected – Full Bench agreed that appeal of merits and compensation decision raises important matters in relation to employees engaged by labour hire companies – permission to appeal granted – appellant submitted that Commission failed to pay sufficient regard to the Temporary Employment Agreement (TEA) and that the employee’s assignment could be terminated at any time at the discretion of the host employer – submitted that the actions of the employer amounted to a valid reason for termination as employee was unable to perform the inherent functions of their role – appellant also submitted that they intended to find employee an alternative assignment but could not and that the employee had walked away from her employment – Full Bench found decision at first instance consistent with the approach adopted in Adecco, Pettifer and Tasports – found that the TEA contained no assignment or conclusion date and that employee’s assignment was extended twice without any indication when it may end – satisfied that Commission correctly described the employee’s work with the employer host as ‘an indefinite duration’ – rejected appellant’s submission that employee ended her employment – found no substance to appellant’s claim of an alleged failure to provide adequate reasons for decision at first instance – appellant submitted that the amount of $15,000 in compensation was too high in relation to the temporary nature of the appellant’s employment – Full Bench satisfied with Commission’s application of Sprigg given findings of there being no valid reason for dismissal and that the work performed was for an indefinite period – grounds of appeal not made out – appeal dismissed – corresponding stay order to be set aside. Appeal by Spinifex Australia P/L t/a Spinifex Recruiting against decisions of Hamberger SDP of 13 March 2018 [[2018] FWC 1363] and 21 June 2018 [[2018] FWC 3686] Re: Tait