ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – matter concerned employees not allocated sufficient work to exhaust annual hours in that year and employees carried up to 50 hours each into following year – employees exhausted their hours following year but additional hours worked did not attract additional payment – Commissioner found proper construction of relevant clause in agreement had a plain meaning – Commissioner additionally concluded respondent did not fail to take all reasonable steps to exhaust annual hours of permanent shiftworkers – Full Bench concluded that Commissioner erred in construction of agreement provisions and provision was to be read as non-mandatory – the conclusion of Commissioner that respondent did not fail to take all reasonable steps to exhaust annual hours of permanent shiftworkers was correct – Full Bench concluded error did not alter ultimate outcome of dispute – permission to appeal granted – appeal not upheld – appeal dismissed. Appeal by Maritime Union of Australia against decision of Commissioner Simpson of 18 December 2015 [[2015] FWC 7342] Re: Northern Stevedoring Services P/L.
April 28, 2016
ENTERPRISE AGREEMENTS – varying agreement – apprehension of bias – ss.577, 604 Fair Work Act 2009 – appeal – Full Bench – appeal of decision to dismiss recusal application alleging reasonable apprehension of bias – permission to appeal granted as it raised important issues concerning practice and procedure of Commission regarding communication with parties – application involved unilateral communication between a Member and one party – applied Ebner – Commission must firstly identify what factors might lead judge to decide question before him other than on merits – then, having identified factors, establish a logical connection between those factors and the fear the judge might not apply proper judicial merit – unilateral communication by party with a judge’s chambers could give rise to a reasonable apprehension of bias [John Holland Rail] – however, Full Bench not satisfied a fair minded observer might perceive logical connection between the communication in this case and a possibility that the Member would not bring an impartial mind – no error in Member’s decision not to recuse himself – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against decision of Richards SDP of 4 January 2016 [[2016] FWC 37] Re: LCR Group P/L C2016/2298.
April 28, 2016
ANTI-BULLYING – bullied at work – ss.604, 789FC Fair Work Act 2009 – permission to appeal – Full Bench – application for an order to stop bullying – decision at first instance found major issues raised by appellant did not constitute unreasonable behaviour – requirements of s.789D of FW Act and considerations in Ms SB not met and order unable to be made – appellant submitted Commissioner erred in findings and was misled by facts – further submitted Commissioner applied incorrect principles in reaching decision – Full Bench found appellant unable to point to findings affected by sufficient error to require permission to appeal to be granted – weight and credit placed on evidence presented by appellant reasonably open to Commissioner – not satisfied Commissioner applied incorrect principles – Full Bench satisfied decision made by Commissioner was reasonably open to him – no basis to grant permission to appeal – permission to appeal refused. Appeal by Hammon against decision of Roe C of 14 August 2015 [[2015] FWC 5565] Re: Metricon Homes P/L t/a Metricon Homes and Ors.
April 28, 2016
RIGHT OF ENTRY – application for permit – ss.512, 513 Fair Work Act 2009 – CFMEU lodged applications seeking an entry permit to be issued to their employee Mr Harris – these were subject to hearing on 9 March 2016 – at hearing CFMEU disclosed information about Federal Magistrates and Federal Court proceedings the proposed permit holder is or has been a respondent in – evidence relied on by CFMEU regarding ‘fit and proper’ persons – disclosures related to Mr Harris’ involvement as a respondent in several different matters – Mr Harris advised that he never entered any sites without giving requisite notice, apart from his involvement in safety issues – it was concluded with reference to Mr Harris’ past activities that he has a limited understanding of the freedom of association requirements implicit in general protections provisions, but does understand employees’ rights to become or not become union members – Mr Harris also demonstrated a preparedness to disrupt work when he considers it to be in the interests of CFMEU and/or its members – concluded that nothing in evidence indicated Mr Harris has actually paid a financial penalty in relation to disruptive activities – there was also nothing to indicate that Mr Harris is at all remorseful in relation to these disruptive activities or that he intends to alter his past patterns of behaviour – this position relative to past behaviours does not indicate he has a clear understanding of the import of his past behaviours, or any commitment to change his behaviour – there were repeated instances where Mr Harris demonstrated a lack of regard for the obligations established by the FW Act – this behaviour not considered indicative of Mr Harris’ capacity to comply with the FW Act irrespective of either CFMEU instructions or his own assessment of what is good for CFMEU – Mr Harris’ participation in actions designed to force results sought by the CFMEU not able to be easily reconciled with the assertion that he works towards negotiated solutions – concluded by Commission that Mr Harris has willingly been a party to actions where he has simply ignored the law, and he has not utilised the opportunity to demonstrate or seriously assert that he has adopted a changed approach – Commission not satisfied that Mr Harris a fit and proper person to hold an entry permit – application dismissed. Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch and Anor.
April 28, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Nilsen (SA) P/L – Contracting Division Collective Agreement 2013 in relation to interpretation of clause 41.2 Redundancy Pay – CEPU submitted proper construction established that provisions given plain meaning and not ambiguous – asserted that provisions operate to entitle employees to pro rata redundancy payments and sought order which established that provisions entitled employees to pro rata redundancy from commencement of employment – employer submitted that CEPU position is inconsistent with established practices since commencement of agreement – submitted that clause 41.2(c) had no current purpose and was inconsistent with Redundancy table in clause 41.2(a) – further submitted that clause was unintentionally left in Agreement following FW Act and National Employment Standards – requested that clause 41.2(c) be removed from the agreement as interpretation of clause operated to detriment of employees as employees would only receive pro-rata payment of redundancy pay – ‘the resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose’ [Golden Cockerel] – Commission found that clause 41.2(c) provided for pro-rata arrangement and was not ambiguous – did not agree with employer that pro-rata mechanism limited to situations where employee has completed one year’s service – Commission found that clause 41.2(c) reflected earlier agreement provisions and formed part of the agreement approved by the Commission and there was no basis for this to be disregarded – Commission found pro-rata redundancy payments will commence after employee is employed up to a maximum of 10 years’ continuous service so as to recognise a part year’s continuous service. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (SA) P/L.
April 28, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute in relation to Offshore Marine Services P/L Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 relating to two-crew duty system requiring payment of dead day as duty day – the day on which crew depart a vessel and are replaced by second crew was a swing-off day – this day usually treated as dead day which is day on which employee did not accrue leave – subclause 14.8 provided that where two crew duty system did not operate or where crew member had no relief, swing-off day would be treated as duty day and employees would accrue a day’s pay and a day’s leave – Commission determined whether operation of sub-clause 14.8 required payment on the day when employees left vessel in Singapore in early September 2015 as a dead day or a duty day – ‘if the language of agreement is ambiguous or susceptible to more than one meaning then evidence of surrounding circumstances will be admissible’ [Golden Cockerel] – MUA submitted that plain meaning in sub-clause 14.8 was clear having regard to purpose and context – submitted that two-crew duty system did not operate and/or where crew member had no relief, then swing-off day would be treated as duty day and the off-going crew entitled to be paid a duty day – MUA further submitted that purpose of sub-clause was to compensate where no successive crews changing with another, there would only be one crew available to perform work on the swing off day and that accordingly the off-going crew should accrue both a day’s pay and a day’s leave – employer disputed MUA’s construction of sub-clause 14.8 – submitted that only applied if employee left vessel to which two crews had not been appointed – submitted that employees left vessel where two crews had been appointed and there was no need for any relief – submitted MUA’s interpretation erroneously construed two-crew duty system as ceasing to operate at end of a labour-hire arrangement – Commission compared sub-clause 14.8 to award – Commission found that purpose was clear – agreement provided that when two-crew system not in operation, or relief did not arrive, parties intended that this would be recognised as a duty day rather than a dead day – Commission found that two crew system referred to two full alternative crews – Commission found that short term nature of FDS assignment meant only one crew appointed – found that crew had employees who would work day or night shift and did not amount to two crews – found that words in sub-clause expressed two alternatives – first was satisfied as two-crew system did not operate and was mutual intention of parties that swing-off day would be paid as duty day – Commission found employer obliged to pay each employee’s swing-off day as a duty day. Maritime Union of Australia, The v Skills Offshore (Australia) P/L.
April 28, 2016
CASE PROCEDURES – review of external decision – s.604 Fair Work Act 2009 – cl.81 Offshore Petroleum and Greenhouse Gas Storage Act 2006 – r.53 Fair Work Commission Rules 2013 – appeal – Full Bench – at first instance Commission determined that a historical assessment was the appropriate method of determining the application from the appellant to seek revocation of NOPSEMA’s decision to issue an improvement notice – Commission adopted the questions for determination that had been proposed by NOPSEMA – appellant sought permission to appeal against the decision at first instance on the basis that it asserted that the decision applied an incorrect approach to the matter – appellant advised that it sought to challenge the improvement notice so as to protect its reputation with particular regard to future tendering arrangements – meaning of ‘de novo’ hearing – Rutjens and Shi considered – the nature of an improvement notice under the OPGGS Act and the nature of the appeal contemplated by that Act establish that this capacity to affirm, vary or revoke an improvement notice must be applied with regard to the fundamental purpose of that notice – at first instance the parties requested that Commission decide between an historical or current approach – Full Bench held that such a simple election misrepresents the nature of Commission’s task under the OPGGS Act – whilst the primary issue to be determined by Commission is whether the improvement notice should have been issued at that time, it may also, in appropriate circumstances, be necessary for Commission to determine whether an improvement notice should apply at the time it makes a decision – whilst Full Bench agreed that Commission correctly identified the major issue to be determined in the appeal, his decision did not fully take into account the extent to which a contemporary assessment of the matter may lead to a decision to review the improvement notice as part of its ultimate disposition – Full Bench unable to agree with the entirety of his conclusion – important that the approach to an appeal of this nature is founded on temporal considerations consistent with the relevant legislation and this raises matters of public interest – permission to appeal granted – the conclusion in the decision at first instance precluded the Commission from reaching a contemporary view about an improvement notice, having assessed its historical appropriateness – Full Bench held that this reflected error – appeal upheld – application referred back to the Commission to determine in accordance with this decision. Appeal by Sedco Forex International Inc against decision of Cloghan C of 26 October 2015 [[2015] FWC 7239] Re: National Offshore Petroleum Safety and Environmental Management Authority t/a NOPSEMA.
April 28, 2016
TERMINATION OF EMPLOYMENT – casual – genuine redundancy – ss.384, 389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent raised jurisdiction objections – respondent argued that applicant was not a person who was protected from unfair dismissal because he was a casual employee who worked on an irregular basis – in the alternative the dismissal was a genuine redundancy – casual – Commission satisfied applicant employed on a regular and systematic basis and had an expectation of continuing employment of that nature – approach in Shortland adopted – Commission concluded that applicant worked for a minimum of 44 weeks over a 56 week period, and most likely 48 weeks – at time of dismissal evidence suggested respondent had more than 15 employees therefore applicable minimum employment period was six months – Commission satisfied applicant achieved minimum employment period and was therefore a person protected from unfair dismissal – genuine redundancy – Commission not satisfied applicant’s dismissal occurred because respondent no longer required applicant’s job to be done – three new employees were engaged the week before – found requisite consultation did not occur – respondent’s objection that dismissal was a genuine redundancy refused – jurisdictional objections dismissed – application referred for conciliation. Murray v Zinctech Cladding and Roofing.
