ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute over whether EnergyAustralia Yallourn Enterprise Agreement 2013 prevents employer from contracting out task of ‘bunker lacing’ – bunker lacing typically performed by employees on an ad hoc basis as overtime – Commission to determine whether bunker lacing incorporated in the Power Worker role descriptor – EnergyAustralia submitted bunker lacing does not fall within the job descriptors, and therefore contracting out the task would not vary the duties of Power Workers – CFMEU submitted that the Commission should not engage in a narrow and pedantic approach to interpretation [Kucks] and that the relevant issue was whether, on approval of the Agreement, bunker lacing was carried out by Power Workers, which the CFMEU submitted was the case – Commission to determine whether operation of clauses permitting the use of contractors provided that employees are fully utilised, and to meet workloads provided that employee job security is unaffected, prevented the contracting out of bunker lacing – EnergyAustralia submitted clauses do not prevent contracting out of work as employees have enough work to keep them occupied during ordinary hours – CFMEU submitted that as Agreement provided that employees may be required to work reasonable overtime an employee not working reasonable overtime is not fully utilised – Commission not satisfied that role descriptor of Power Worker incorporated bunker lacing – Commission not satisfied an employee is required to perform reasonable overtime in order to be fully utilised – outsourcing of bunker lacing not prevented by Agreement. EnergyAustralia Yallourn P/L v Construction, Forestry, Mining and Energy Union
April 28, 2016
MODERN AWARDS – dispute about matter arising under award – s.739 Fair Work Act 2009 – alleged dispute about matters arising under the Joinery and Building Trades Award 2010 and the NES – parties sought a recommendation on how the award applies to their factual circumstances – whether meal break during early afternoon shift is regarded as time worked (and therefore paid) or not – AI Glass employees do not work continuous and consecutive shifts throughout the 24 hours of the day – award does not appear to confer entitlement to crib breaks to workers other than day workers and continuous shift workers – early afternoon shift workers not entitled to a crib break unless continuous shift work is performed. Construction, Forestry, Mining and Energy Union v Adelaide Independent Glass P/L
April 28, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant terminated due to poor financial performance within SA Branch – following applicant’s subsequent unauthorised removal of information confidential to respondent and personal employee information, respondent purported to summarily dismiss applicant – Commission found applicant failed to manage SA Branch in a manner that returned sustainable financial contribution – valid reason for dismissal – Commission noted that while removal of personal and confidential information would ordinarily constitute a valid reason for dismissal, as conduct occurred post termination respondent was not able to rely on it to support its earlier decision to dismiss -found while applicant was on notice that SA Branch performance unacceptable, never warned employment at risk – Commission held respondent’s failure to warn applicant denied him an opportunity to improve or respond to allegation – rendered dismissal harsh, unjust or unreasonable – applicant unfairly dismissed – reinstatement not appropriate – Sprigg principles applied – 60% discount made due to post dismissal conduct – compensation of $4602 awarded. Welsby v Artis Group P/L
April 28, 2016
GENERAL PROTECTIONS – jurisdiction – national system employer – ss.338, 365 Fair Work Act 2009 – applications to deal with contraventions involving dismissal – respondent a local government body – lodged jurisdictional objection contending not a constitutional trading corporation and the Commission lacked jurisdiction to deal with applications – Commission to determine whether respondent a trading or financial corporation within the jurisdiction of FW Act – Commission adopted principles summarised in ALS in relation to determining whether a corporation is a trading corporation for the purposes of paragraph 51(xx) of the Constitution – Commission found the broad construction given to the respondent’s functions by the Local Government Act 1995 (WA) resulted in many of its activities coming within its general function – trading activities peripheral to its statutory function – Commission held respondent not a trading or financial corporation for the purposes of paragraph 51(xx) of the Constitution – not a constitutional corporation for the purposes of the FW Act – not a national system employer – applications incompetent – applications dismissed. Boyd and Anor v Shire of Yalgoo
April 28, 2016
CASE PROCEDURES – non-compliance with directions – ss.587, 789FC Fair Work Act 2009 – application for an order to stop bullying – following applicant’s failure to comply with directions, applicant given opportunity to show cause as to why application should not be dismissed – applicant advanced three main grounds – submitted employer failed to present evidence to refute allegations – if case wasn’t heard other employees would be ‘tormented and extorted’ – personal circumstances and lack of representation made compliance with directions and preparation of material difficult – employer submitted applicant failed to provide adequate explanation for repeated failures to comply with directions or for why application should not be dismissed – also raised issue of applicant’s ability to satisfy jurisdictional requirements to make an order to stop bullying – submitted no risk of applicant being bullied in future as would not be receiving any future shifts due to work for employer’s direct competitor – Commission noted power to dismiss application under s.587 of FW Act discretionary – ultimate issue is what is required in the interests of justice in circumstances of particular case [Chand] – serious step to deny applicant opportunity to pursue cause of action- taking into account applicant’s subsequent compliance with directions, past conduct should not deprive him of the opportunity to present his case – held application should not be dismissed for want of prosecution – in relation to employer’s submission on jurisdictional requirements for order under s.789FF of FW Act, Commission found employer did not contend the applicant had been dismissed or that failure to offer work was the result of misconduct or negligence by applicant – employer stopped short of stating that no further engagements would be offered to applicant – not open to the Commission to conclude that applicant unable to satisfy the requirement in s.798FF(1)(b)(ii) of FW Act – matter to be relisted. Mr Simounds
April 28, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application lodged seven days out of time – applicant submitted delay was result of representative error – applicant lodged application as soon as she became aware that her application had not been filed by union – Commission found applicant provided clear instructions to union representative to lodge claim and the representative had failed to do so – Commission found applicant’s case was not without merit or lacking in substance – extension of time granted. Turner v CFC Consolidated P/L atf CFC Employment Trust
April 28, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Manager of IT&T – summarily dismissed for misconduct related to incident at respondent’s premises at Parramatta – applicant is an internationally renowned competitive target shooter – arranged lunchtime meeting with another target shooter to discuss rifle accessories – other target shooter unable to find car park so applicant gave her access to secure parking at resident’s premises – other target shooter removed rifle from car to show applicant accessory – actions witnessed by member of public who called police – police attended site to speak to applicant and other target shooter – applicant not charged – applicant approached by his immediate supervisor for questioning – applicant refused to speak saying he had been instructed by the Police not to discuss the incident – applicant suspended on full pay during internal investigation – respondent determined that conduct breached various company policies and failed to meet expectations regarding safety and security of people and company assets – applicant dismissed after disciplinary meeting – Commission found valid reason for dismissal however applicant’s actions did not justify summary dismissal – compensation of $8,616.00 ordered. Waters v Goodyear Australia P/L
April 28, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute arising under an agreement – applicant did not identify specific agreement in application – respondent acknowledged Group Resources P/L Project Delivery and Asset Services Workplace Agreement 2009 applied to applicant during employment with respondent – applicant asserted entitled to full weeks’ pay as wrongly given notice of termination concurrently with R&R leave – respondent raised jurisdictional objection that applicant not employee since 2013 and subject matter of application not raised with respondent until 15 February 2016 – Commission does not have jurisdiction to deal with dispute in relation to people who are no longer covered by relevant agreement [King] – applicant had no right under Agreement to bring dispute to Commission under dispute resolution procedure – Commission also noted relief through ‘Order to Pay’ involves enforcement of Agreement which is beyond power of Commission – only Federal Court or Federal Circuit Court empowered to make such order – application dismissed. Krajancic v UGL Limited
