ENTERPRISE AGREEMENTS – genuinely agree – ss.181, 182, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance to refuse approval of McDermott Australia P/L Ichthys Project Offshore Construction Agreement 2016 on basis casual employees who voted in favour of approving agreement not engaged in work or being paid at time of voting and were therefore not employed, and that application not accompanied by properly signed copy of agreement as signatory was not properly appointed employee representative – appellant appealed on basis Commission had erred by concluding casual employees were not employed at time – appellant submitted employees to be balloted should include those who were usually employed or likely to be engaged [Swinburne] – Full Bench satisfied because contingent of casual employees had been hired and trained for project and none had been terminated or indicated they were unwilling to work on project, they should be included in ballot – Full Bench also satisfied signature requirements met, as agreement was signed by an employee to be covered by agreement – public interest enlivened – permission to appeal granted – appeal upheld – agreement approved. Appeal by McDermott Australia P/L against decision of Lee C of 25 February 2016 [[2016] FWC 1113] Re: The Australian Workers’ Union and Anor
May 3, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant a trainer in civil construction field – respondent submitted dismissal a genuine redundancy – significant decline in students commencing civil construction courses in latter half of 2015 – applicant told position redundant at meeting – evidence there were no vacant positions in business – Commission satisfied respondent had operational reason to reduce number of trainers – found obligation to consult arose when respondent decided to reduce the number of trainers by one – should have advised all civil construction trainers of decision as they were affected employees who should have been given opportunity to discuss decision – by only notifying applicant after decision taken to select him for redundancy no such discussion able to occur – found respondent did not comply with obligations to consult under modern award – not reasonable to redeploy applicant – dismissal not genuine redundancy – decision in UES relevant in determining harshness – while failure to consult does not make dismissal harsh, unjust or unreasonable, in circumstances failure to consult was unreasonable – had respondent advised all trainers of decision, employees may have been able to propose measures to avert or mitigate adverse effects – termination unreasonable – satisfied applicant unfairly dismissed – reinstatement not appropriate – Commission considered applicant likely to have remained in employment for another week to allow consultation to occur, but applicant still would have been selected for redundancy – compensation of one week’s pay ordered. Coll v Foresite Training P/L t/a Foresite Training
May 3, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed as Sales Manager in transport and removal company – dismissal took effect on 5 November 2015 – respondent submitted that applicant was not dismissed but rather resigned of his own volition – further submitted that on a phone call the applicant said ‘I quit’ – Commission not satisfied that applicant dismissed by respondent – likely that the applicant did not clearly resign but inferred that he was ‘finished’ – that there was no further action or attempt to clarify situation until five days later confirmed the applicant had resigned – Commission found that applicant not dismissed – application dismissed. Tomlinson v Ballina Furniture Overnighters t/a Ballina Removals & Storage
May 3, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – employer raised a number of performance issues with applicant over the course of several months – independent assessor engaged to assess applicant’s work – during the assessment period, weekly meetings were held with applicant and notes provided to him – final report following assessment concluded that the applicant was not preforming at level – applicant given opportunity to respond to report – applicant submitted that the assessment process was flawed – Commission satisfied that the underperformance constituted a valid reason for termination of employment – applicant notified of the reasons for dismissal and given the opportunity to respond – applicant also given numerous opportunities to respond to the performance issues raised – dismissal not harsh, unjust or unreasonable – application dismissed. Belachew v Australian Bureau of Statistics
May 3, 2016
GENERAL PROTECTIONS – amendment of application – ss.365, 586 Fair Work Act 2009 – request by applicant to amend general protections application by adding several respondents – applicant sought to add one company (Sphere 38 Group P/L) and two individuals – applicant submitted that his application to amend was made because of uncertainty as to the actual respondent – applicant argued that his application would be prejudiced if the application was not amended as there was a possibility Korr Electrical P/L may be deregistered by ASIC – Commission has broad discretion to correct or amend application on any terms that it considers appropriate – found employment contract indicated Sphere was applicant’s employer – complicated by fact that Sphere was not registered with ASIC until after applicant was employed – found while individuals were directors of Korr and Sphere respectively there was no material before the Commission which pointed to either of them being the applicant’s employer – Commission found appropriate to amend application to add Sphere 38 Group P/L as respondent – Commission found it appropriate for Korr to continue as a respondent given uncertainty about employer – found inappropriate to add individuals as respondents – order issued – Commission satisfied that all reasonable attempts to resolve dispute have been or are likely to be unsuccessful – certificate under s.368(3) of FW Act to issue. Doohan v Korr Electrical P/L
May 3, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged six days’ late – applicant suffered injuries in workplace accident – applicant subsequently dismissed – at first instance applicant lodged unlawful termination application within time – applicant discontinued application on discovery he was national system employee – later lodged general protections application – respondent raised jurisdictional objection application out of time – applicant submitted delay was through no fault of his own and was due to representative error – Commission held representative error an acceptable reason for delay – indicative of ‘exceptional circumstances’ [Davidson] – applicant disputed dismissal when he lodged unlawful termination application – exceptional circumstances present to warrant granting extension [Nulty] – application extended – order issued – application listed for conference. Schmidt v Doral Fused Materials P/L
May 3, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under Transfield Services Limited (Maintenance Services – Wyee) Collective Agreement 2011-15 – applicants claimed entitlement to long service leave under the Coal Mining Industry (Long Service Leave) Administration Act 1992 and submitted dispute related to what their long service leave entitlements are under agreement – Broadspectrum submitted Commission did not have jurisdiction to arbitrate dispute – whether Commission has jurisdiction to arbitrate dispute – Commission found necessary to look at text of dispute settlement procedure in agreement, understood in light of industrial context and purpose, to determine whether dispute, properly characterised, falls within it – Commission found dispute resolution procedure related to any dispute connected with workplace and dispute between applicants and Broadspectrum, properly characterised, was within scope of disputes which may be dealt with under clause – Commission exercising powers of private arbitration conferred under agreement, not judicial power – Commission satisfied assuming preliminary steps in dispute procedure undertaken, Commission has jurisdiction to arbitrate the dispute – dispute to proceed to arbitration. Brown and Anor v Broadspectrum Limited
May 3, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant resigned on 17 June 2015 and agreed that 5 July 2015 would be his last day at work – subsequently dismissed on 21 June 2015 – applicant a casual employee at dismissal – applicant submitted he was dismissed because he regularly queried his pay and entitlements while he was employed by the respondent – respondent submitted applicant was dismissed because he was taking photos of private and confidential material – Commission held not enough evidence to support the respondent’s claims – no valid reason for dismissal – held applicant’s dismissal was at least unjust and unreasonable – reinstatement not appropriate – applicant would have been employed for 14 more days but for the dismissal – compensation of two week’s pay at the applicable casual rate of pay ordered. Lama v Konute Enterprises
