ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Appendix C and clause 25.5 of Part B of the Siemens Building Technologies/”US” Utility Services and ET Enterprise Agreement 2010-2014 – employees covered by agreement are provided with use of a motor vehicle by respondent known as tool of trade (TOT) vehicle – issue in dispute was whether respondent was precluded by reason of agreement from implementing provision of e-TAGs and reimbursement for toll incurred by TOT vehicles – clause 25.5 of Part B of agreement deals with fair, travel and toll allowances – applicant argued words ‘fair and reasonable use’ contemplates respondent taking financial responsibility for operational cost of the vehicles – respondent submitted they may be required to meet petrol costs associated with ‘fair and reasonable use’ – principles of interpretation applied from Golden Cockerel – Commission did not consider there was anything in Appendix C which would prevent respondent from implementing e-TAG procedure – Commission found phrase ‘fair and reasonable use’ does not include a requirement that respondent be responsible for toll expenditure incurred while using TOT vehicle – dispute is resolved accordingly and no order is necessary. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Siemens Ltd
April 28, 2016
TERMINATION OF EMPLOYMENT – casual – ss.384, 394 Fair Work Act 2009 – applicant employed from 10 June 2011 to 31 August 2015 – applicant part-time from 18 November 2013 to 28 April 2015 and casual at all other times – applicant performed no work from 6 March 2015 to 28 April 2015 because she had troubles with her health and her student visa – applicant terminated by text message on 31 August 2015 which said in part ‘I have taken you off the roster as you have become too unreliable. All the best.’ – Commission considered various jurisdictional objections – respondent alleged text message was not a dismissal merely removed applicant from the roster – Commission held text message was dismissal – respondent alleged applicant repudiated her contract between 6 March 2015 to 28 April 2015 and commenced a new casual contract on 28 April 2015, thus new casual contract would not meet minimum employment period – Commission held there was no repudiation of applicant’s contract because the applicant kept in regular contact with the respondent and there was a clear implication of on going work – respondent alleged applicant’s last period of service as casual was not regular or systematic and she had no reasonable expectation of continuing employment – Commission dismissed this objection based on the applicant’s rosters and her communication with the respondent – jurisdictional objections dismissed – matter listed for further proceedings to determine whether applicant’s dismissal was harsh, unjust or unreasonable. Rahim v Murdoch University Child Care Association t/a Murdoch University Child Care Centre
April 28, 2016
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by the CFMEU for right of entry permit to be issued to Mr Davis – application disclosed Mr Davis had been penalised for contraventions in respect of s.44(1) of the Building and Construction Industry Improvement Act 2005 related to coercive conduct to make an enterprise agreement – matter Commission required under s.513 of FW Act to take into account in determining whether Mr Davis a fit and proper person to be granted permit – Commission found prior conduct exhibited a willingness to act over some time in a manner that had no regard for lawful responsibilities with respect to an activity central to the industrial system – Commission noted Mr Davis had not taken opportunity to present to Commission or provide any supportive statement in defence of conduct or otherwise – no evidence of remorse or contrition – no evidence before Commission that Mr Davis a changed man regarding prior actions and attitudes – Commission not satisfied prior conduct and attitudes would not be further exhibited – not satisfied Mr Davis a fit and proper person to hold a right of entry permit under FW Act – application dismissed. Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
April 28, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.386, 394 Fair Work Act 2009 – applicant lodged unfair dismissal application – advised that he was notified by respondent on 22 June 2015 that he could either take redundancy package or become independent contractor – respondent later retracted offer – applicant put on notice on 4 and 13 August – submitted resignation on 28 August 2015 – applicant alleged his manager made his work situation intolerable leading to his resignation – applicant submitted the respondent’s action were taken because he refused to become independent contractor – his duties were changed and his workload was substantially increased – submitted that he was offered an inferior contract in July – respondent went into voluntary administration and did not appear at the hearing, nor did they lodge submissions or witness statements despite requests from Commission – applicant was protected from unfair dismissal – where applicant claims they were forced to resign they must show they had no real choice [Mohazab] – Commission satisfied that applicant’s resignation was constructive dismissal – no valid reason for dismissal – reinstatement inappropriate in the circumstances – order for compensation to be made. Foster v Sushi Tribe P/L t/a Pacific Retail Management
April 28, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – applicant’s unfair dismissal application dismissed because she had not served the minimum employment period – respondent applied for costs – submitted it should have been reasonably apparent to applicant that application had no reasonable prospects of success – further submitted application was lodged out of time and applicant not employed for minimum employment period – applicant submitted that respondent could have saved costs if they had responded to claim promptly and that her term of employment was six months – Commonwealth of Australia v Wilson considered – Commission not satisfied application had no reasonable prospects of success given the respondent sent the email dismissing the applicant at 11.41pm on 28 October 2015 when to have been employed for six months she needed to have still been employed at midnight on that day – Commission found it was not reasonably apparent to applicant that lodging application out of time meant that it had no prospects of success – also found not reasonably apparent to applicant that respondent was small business until respondent filed evidence proving such – Commission power to award costs discretionary – Commission considered this an occasion where costs should not be ordered – applicant unrepresented and inconsistent information put forward by respondent – application for costs dismissed. Whitton v Trustee for Rahul Family Trust t/a United Partners Transport and Logistics P/L
April 28, 2016
INDUSTRIAL ACTION – suspension of protected industrial action – s.424 Fair Work Act 2009 – Commonwealth sought orders from Commission that would suspend protected industrial action (PIA) for a period of three months and, while the substantive application was being determined, an interim order that would suspend the PIA pending Commission’s determination of the substantive matter – application relates to PIA at eight international airports around Australia – Commonwealth argued that threats posed by continuation of the PIA to the lives, personal safety, health and welfare of travellers and the Australian community warranted an interim order being made – CPSU did not agree with Commonwealth’s analysis of the situation or that there was any jurisdiction for Commission to make an interim order – Commission found no impediment to its jurisdiction to make an interim decision within the five-day period allowed by s.424(3) of FW Act – satisfied appropriate to require an urgent hearing – desirable to issue an interim order suspending PIA until Commission’s final determination of Commonwealth’s application – Commission will reconvene to hear and determine Commonwealth application for final orders to be issued in the matter. Commonwealth of Australia (represented by the Department of Immigration and Border Protection) v CPSU, the Community and Public Sector Union
April 28, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedure of University of Newcastle Professional Staff Enterprise Agreement 2014 – term requires dispute relates to ‘interpretation, application or operation of’ provision of agreement – applicant made redundant claims job transfer and terms of consultation paper of employer was not followed – agreement specifically notes ‘policy, code, procedure, guideline or other administrative arrangement’ are not terms of the agreement – dispute does not concern consultation term but outcome of consultation – that employer initially followed dispute settlement procedure is not indicative it applied – no connection found between dispute and ‘interpretation, application or operation of’ the agreement – no jurisdiction – application dismissed. Nantsou v University of Newcastle
April 28, 2016
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant terminated shortly after making complaints against respondent to Fair Work Ombudsman and Department of Local Government and Communities – at no stage did respondent answer to applicant’s unfair dismissal application or comply with Directions issued by Commission – pursuant to s.600 of FW Act, Commission may determine a matter before it, in the absence of a person who has been required to attend before it – Commission satisfied applicant was protected from unfair dismissal and dismissal was harsh, unjust and unreasonable – reinstatement deemed inappropriate – compensation of $7,909.50 ordered. Diaz Gubern v Mimi Family Daycare Service P/L
