ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about removal of pre-paid overtime component of annualised salary in favour of payment for overtime actually worked – dispute notified under BlueScope Steel Port Kembla Steel Works Agreement 2012 – whether change ‘significant in nature’, and safe, efficient, legal and fair according to tests in agreement – removal of pre-paid overtime safe and efficient – consultation was more than adequate – procedures in agreement followed sufficiently to overcome any argument of illegality [Golden Cockerel] – respondent in emergency situation attempting to avoid closure of plant – Commission recognised need for transparent salary structure to dispel possible perceptions of favourable treatment – estimated saving of $500,000 p.a. justifies implementation – removal of pre-paid overtime safe, efficient, legal and fair – change not significant – application dismissed. The Australian Workers’ Union v BlueScope Steel (AIS) P/L
May 3, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – performance – ss.389, 394 Fair Work Act 2009 – applicant employed at company for 41 continuous years – deemed surplus as a result of restructure – offered option of immediately taking redundancy package or six month transition period to find another job within company – if after six months the applicant was unable to find suitable redeployment, he would be made compulsorily redundant and collect his redundancy entitlement – five months and one week into the transition period, applicant dismissed for repeated poor performance – applicant involved in five separate incidents over an 18 month period prior to his dismissal – applicant submitted he was upset and distressed at being identified as surplus – respondent submitted applicant dismissed due to poor performance which created an unacceptable risk to company – Smith considered – Commission found reason for termination sound, defensible and well founded but dismissal was harsh and unreasonable – Commission ordered applicant be reinstated into position and transitional process to continue. McGlin v Bluescope Scope Steel (AIS) P/L
May 3, 2016
INDUSTRIAL ACTION – order against industrial action – ss.409, 418 Fair Work Act 2009 – application for an order that industrial action by employees or employers stop – proposed industrial action – 48 hour strike, effective from 12.01am on Thursday, 21 April 2016 – principal issue was that the impending industrial action was not ’employee claim action’ in accordance with s.409 of FW Act – applicant submitted that the proposed action was unprotected action because the CEPU was trying to regulate the wages and conditions of apprentices employed through a third party – claim for provision that any apprentice engaged through a group training company is engaged on terms no less favourable than those contained in the agreement – concerns the job security of the Electricians and Trades Assistants directly employed by applicant may be in jeopardy – held premature for industrial action to occur if parties have not had the opportunity to discuss the issues – Commission satisfied an interim order to stop the pending industrial action was the appropriate course of action in this circumstance – order that industrial action planned for 12.01am on 21 April 2016 not proceed – interim order will operate until the application is determined – parties directed to confer in relation to the job security concerns. Fredon Industries P/L t/a Fredon v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
May 3, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – matter proceeded in absence of respondent – when contact made with the respondent it failed to request an adjournment or that it be given an opportunity to provide material for Commission to take into account in making decision – matter decided on submissions made by applicant – Commission found dismissal harsh, unjust or unreasonable – ordered compensation of $17,392.96, taxed according to law. Shortland v WCH Services P/L t/a WCH Services
May 2, 2016
Twenty-two applicants are a gentle introduction to a week of wining in the Fair Work Commission. The full list is: QBE Management Services Pty Limited (Abdulrahim), Stella Engineering (Ruming), Logsys Power Services Pty Ltd (Van Wyk), Temples (WA) Pty Ltd (Bayley), DP World (Fremantle) Ltd (McLeish), Activ Foundation (Nangongwe), Logsys Power Service (Mills), Scottish Pacific Business Finance (Geekiyanage), Peter MacCallum Cancer Institute (Ferrao), Emirates Airlines (Antoniou), Discount Tires and Auto Service Centre (Ball), W.O Longmuir Pty Ltd (Deerbon), Diamond Protection Pty Ltd (Findley), The Resident Cafe (Sorocuk), Royal Women’s Hospital (Brysha), Karingal Inc (Carroll), Russell Smith (Whitley), Finkelde Group (Jenkins), West Coast Council (Billett), Aboriginal Hostels Limited (Kaufman), Millennium Services Group Limited (United Voice), GH Quality Bricklaying Pty Ltd (Thomas).
April 29, 2016
Today’s Fair Work Commission line-up of claimants is drawn from 10 work sectors. The full list includes: Janison Solutions Pty Ltd (Rothacker), Durri Aboriginal Corporation Medical Services (Jarrett), Peppers Ruffles Lodge and Spa (McInnes), JBS Australia Pty Limited – Cobram (Kells), Toll Holdings Limited (Oruc), Vinidex Pty Limited (Paikea), Ceres Agricultural Company Pty Ltd (Batchelor), Mine Concepts Pty Ltd (Breed), Gas Motors Pty Ltd (Howarth), Nigel Frank International Pty Limited (Brand), Ricoh Australia Pty Ltd (Smaill), Sawtell Hotel (Meys), International Grammar School Sydney Limited (Tsomis), South Coast Equipment Pty Limited (Boulding), South Coast Equipment Pty Limited (Harding), Grow (Sherback), VUE DC Pty Ltd (Kiss), Water Corporation (Batchem), Murrin Murrin Operations Pty Ltd (Gupta), Elements Speciality Cleaning (Bray), Aquanas Foods (Mankarious), LED Autolamps (Thorneycroft), Roo & Oz Sheetmetal Pty Ltd (Ngo), ONCALL Personnel & Management Services Pty Ltd (Trika), St Francis of Assisi Aged Care (Kalpana), Betta Grower Fertilizers (Gregory), Winslow Constructions P/L (Grey), Goulburn Valley Diaries Pty Ltd (Fenton), NPA Family and Community Services Aboriginal & Torres Strait Islander Corporation (Backo), ECB Pty Ltd (De Sola), ESRI-Australia Pty Ltd (Jarnet), RACQ Insurance (Goodingham), Foresto & Emmerson Smash Repairs (Braddy), MODEC Management Services Pte Ltd (Pettifer).
April 28, 2016
Thirty three alleged miscreants are endeavouring to fight their way out of the naughty corner. The full list includes: Gunnedah Preschool Kindergarten Association Incorporated (Leys), Passion Hair and Beauty (Berni), Camp Australia Services Pty Ltd (Stubis), Retail Food Group Pty Ltd (Bens), The Trustee for the Anrymar Trust (Angove), Richmond Fellowship ACT Inc.(Maloney), Geocon Constructors (ACT) Pty Ltd (Blyton), Carter Hold Harvey Woodproducts Australia Pty Ltd (Dunn), The Australian National University (Bladen), Cheeki Holdings P/L (Devitt), Robson Environmental Pty Ltd (Keane), Capital Property Corporation Pty Ltd ATF the Carrington Trust (Pattulo), Eaton Services Group (Downs), Quality Bakers Australia Pty Ltd (Mutimer), BHP Billiton WAIO Pty Ltd (Mazgaltsidis/Massaro), BHP Billiton Minerals Pty Ltd (Coleman), Atwood Australian Waters Drilling Pty Ltd (Ashby), Sun Connect Pty Ltd (McGregor), Belmont Sport & Recreation Club (Forde), Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited (Hart), Spotless Facility Services Pty Ltd (Kinsella), Jackson & Jackson Refrigeration Pty Ltd (Farrell), Twin Towns Services Club (Dank), BKE Pty Ltd (Gebadi), Atwood Australian Waters Drilling Pty Ltd (Ashby), The Trustee for SWC Unit Trust (Webb), Blackbocks Pty Ltd (Jones), Qantas Domestic Pty Ltd (Christian), Adelaide Hospitality and Tourism School (Corbo), Cheeki Holdings P/L (Devitt), Office Furniture Direct (Gehlken), Petbarn Pty Ltd (Forbes).
April 28, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 604, 611 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed application for remedy from unfair dismissal – decision was appealed and Commission granted permission to appeal [ex tempore decision issued 25 August 2015] – Full Bench received written submissions and upheld appeal, quashed first instance decision, re-determined employees application and dismissed application [[2015] FWCFB 5264] – employer then made application to Full Bench for the applicant to pay its costs for the hearing at first instance and on appeal – employer submitted that both limbs of s.611(2) of FW Act were applicable to both proceedings and that the discretion to order costs should be exercised – submitted employee fabricated version of events to support application that was designed to harass employer and that application was vexatious – argued that employees argument that summary dismissal provisions of Small Business Fair Dismissal Code (the Code) was without merit – argued employer was put to significant inconvenience, stress and expense by proceedings – Full Bench considered the interpretation and application of s.611(2)(a) [Church & Eastern Health] and s.611(2)(b) [Salva Resources] – Full Bench not prepared to accept, having not heard the evidence that employee deliberately fabricated his evidence – Full Bench found employee was ultimately successful on appeal that the summary dismissal provisions of the Code did not apply to his dismissal – found that whilst application was ultimately unsuccessful, it could not be said that his case was unarguable on the merits – Full Bench held that employee did not institute or maintain proceedings vexatiously and employee did not institute proceedings without reasonable cause or without reasonable prospect of success – application for costs dismissed. Appeal by Ryman against decision of Cambridge C of 12 June 2015 [[2015] FWC 3942] Re: Thrash P/L t/a Wisharts Automotive Services
