ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under TAD Industrial Pty Ltd (Victoria) OneSteel Reinforcing Supplementary Labour Agreement 2013-2016 concerned whether agreement terms provided for retrospective application of rates of pay – AWU submitted agreement terms dealing with wage increases have plain and unambiguous meaning that required retrospective application – respondent contended there was no express term within agreement that provided for calculation of back pay retrospectively – respondent further submitted that consistent with Golden Cockerel words to be given plain, ordinary meaning – AWU argued respondent’s submission that dates specified within agreement preceded operative date was contrary to ss.52, 54 and 182 of FW Act unsustainable – Commission of view agreement has plain and clear meaning in respect of date on which rates of pay prescribed will have effect – Commission found agreement provided entitlement to rates of pay for particular dates to employees who were employed at time agreement commenced operation. Australian Workers’ Union, The v TAD P/L t/a Tad Industrial
April 27, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision to dismiss application for unfair dismissal remedy – appellant employed as non-ongoing casual employee under contract of employment – appellant’s employment status relevant to determination of what obligations employer had to consult re redundancy – existence of dispute resolution procedure in modern award/agreement not sufficient to negate an obligation to consult about redundancy – interpretation of consultation obligations requires consideration of employment status – appellant’s employment status far from clear – proper application of s.387(1)(b) of FW Act raises public interest considerations – permission to appeal on broader grounds of employment status – can then determine application of particular consultation obligations in light of employment status – permission to appeal granted – substantive appeal to be heard. Appeal by McCaffrey against decision of Booth C of 21 January 2016 [[2016] FWC 80] Re: Indigenous Land Corporation
April 27, 2016
CASE PROCEDURES – appeals – extension of time – ss.394, 400, 604 Fair Work Act 2009 – Full Bench – application seeking permission to appeal decision at first instance lodged 34 days out of time – at first instance Commission refused extension of time for filing unfair dismissal application – principles for exercising discretion in extending time summarised in Jobs Australia – respondent made no submissions opposing extension – Commission did not conduct hearing or conference in relation to dismissal matter – may have been contested facts – possible findings made without proper consideration of facts in conflict – extension of time for application for permission to appeal granted – unable to determine whether permission to appeal can be granted or whether appeal should be upheld – dismissal application referred back to Deputy President Gooley to conduct hearing or conference on contested matters before Full Bench considers permission to appeal. Appeal by Fletcher against decision and order of Johns C of 13 October 2015 and 10 November 2015 [[2015] FWC 7556] Re: Little Darlings Early Development Center
April 27, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant previously granted extension of time to lodge application – respondent not a small business employer – applicant allegedly terminated for serious misconduct – applicant had accident at work on 17 September 2015 – respondent initially discouraged the applicant from lodging worker’s compensation claim – parties subsequently agreed to lodge workers’ compensation claim for applicant – applicant met with site manager and General Manager of respondent on 12 October 2015 – respondent alleged that applicant threatened General Manager at meeting with physical violence and thus, the applicant, was terminated for gross misconduct – applicant alleged he was terminated for lodging worker’s compensation claim – Commission held the applicant was dismissed for gross misconduct – held applicant was not dismissed for lodging worker’s compensation claim – held lack of procedural fairness afforded to applicant was not enough to make applicant’s dismissal harsh, unjust or unreasonable – application dismissed. Morphett v Pearcedale Egg Farm
April 27, 2016
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – Full Bench – application for a protected action ballot order (PABO) – application heard by Commissioner Williams on 23 December 2015 – Maersk applied for matter to be referred to a Full Bench pursuant to s.615A FW Act – proper construction of ss.437(1) and (2A) and meaning of ‘notification time’ – Full Bench to determine various legal issues and then remit PABO application to Commissioner Williams for determination – Maersk contends that, properly construed, s.437(2A) read with s.437(1) mean that an application for PABO cannot be made before ‘notification time’ for proposed enterprise agreement – task of statutory construction must begin with consideration of the text itself [Alcan] – Full Bench not persuaded s.437(2A) requires that there has been a notification time in respect of enterprise agreement proposed by PABO applicant – legislative purpose in enactment of s.437(2A) in Fair Work Amendment Act 2015 was to ensure protected industrial action cannot be taken until after bargaining has commenced – a consequence of construction proposed by Maersk is that by not agreeing on scope of proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained majority support determination, scope order or low paid authorisation – such a consequence is inimical to scheme of FW Act – Maersk’s construction of ss.437(1) and (2A) could produce outcomes which are plainly contrary to scheme of FW Act and purpose of s.437(2A) – an employer could deny its employees right to engage in protected industrial action simply by failing to give a valid NERR, even though employer had agreed to bargain or had initiated bargaining for enterprise agreement with those employees – subsection 437(2A) enacted for limited purpose, to overcome effect of decision in J.J Richards and ensure protected industrial action cannot be taken until after bargaining has commenced – Full Bench rejected Maersk contention that because ‘notification time’ in s.173(2) triggers requirement for employer to give the NERR in respect of proposed enterprise agreement, Commission cannot make PABO unless employer has given a valid NERR for proposed enterprise agreement – application for PABO remitted to Commissioner Williams for determination. Maritime Union of Australia, The v Maersk Crewing Australia P/L
April 27, 2016
TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission found that applicant’s dismissal was unfair due to no valid reason and ordered reinstatement – Full Bench granted permission to appeal [[2015] FWCFB 7475] – Full Bench considered whether termination was harsh, unjust or unreasonable – Full Bench considered s.387(a) of FW Act in relation to whether there was a valid reason relating to applicant’s capacity or conduct – reason can be either relatively unimportant or of much greater importance – valid reason should be ‘sound, just or well founded’ [Selvachandran] – Full Bench found that Commission required to make findings about each matter in s.387 and must also give those factors weight in making assessment as to whether termination harsh, unjust or unreasonable – meaning of ‘must have regard to’ means failure to make a finding with regard to relevant matter can result in appealable error [Chubb Security v Thomas] – Full Bench found that if Commission makes assessment that a valid reason does not warrant dismissal, or that valid reason did not exist because of extenuating factors such as length of service or other matters, difficult to see how Commission has given weight to the other factors in s.387 – Full Bench found that other factors must also be given proper weight in overall assessment – found Commission made finding that there was valid reason for termination based on extenuating reasons which were relevant to whether dismissal was harsh, unjust or unreasonable overall, but not relevant to whether or not there was valid reason for termination – Full Bench found this constituted error of law which raised issues of public interest – also found there was a valid reason for dismissal as applicant breached safety policies of respondent – in applying s.387 the Commission must give consideration to safety standards to ensure safe work practices are applied – found error of type in House v King as Commission applied erroneous principle, misapplied provisions of FW Act and allowed irrelevant considerations to influence decision – appeal allowed – decision at first instance quashed – matter to be heard and determined by Commissioner Johns. Appeal by Parmalat Foods P/L against decision of Lawrence DP of 27 August 2015 [[2015] FWC 5535] Re: Tran
April 27, 2016
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application to terminate Allen & O’Brien P/L t/a O’Brien Electrical Services Enterprise Agreement 2010 – 2014 by Allen & O’Brien P/L t/a O’Brien Electrical Services – nominal expiry date 31 October 2014 – agreement still in operation – consideration of whether termination of enterprise agreement that has passed nominal expiry date not contrary to public interest involves something district from interests of persons and bodies covered by agreement [Aurizon] – applicant contended not contrary to public interest to terminate agreement, having regard to financial viability, capacity to compete and continue to employ – submitted public interest to maintain business which employs people – witness evidence produced by applicant showed operating at loss due to diminution in trading income of applicant – Commission not satisfied evidence established existence of agreement cause of, or significant contributing factor to diminishing profit results – agreement also operational during financial year ending 30 June 2014 at which time applicant profitable – evidence not supported by any credible evidence by way of market analysis which would underpin assertion made – witness conceded no knowledge of competitors or industrial arrangements that apply to competitors – Commission found applicant’s attempt to frame case to coalesce with circumstances in Aurizon failed because of absence of any evidence of market conditions or competitive pressures – applicant also contended not contrary to public interest to terminate agreement as the applicant had been unsuccessful in achieving new agreement despite attempts to do so – Commission rejected failure to reach agreement caused by continued operation of current agreement – Commission not satisfied that it was not contrary to the public interest to terminate agreement – application to terminate agreement dismissed. Allen & O’Brien P/L t/a O’Brien Electrical Services Enterprise Agreement 2010 – 2014
April 27, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Fluor Rail Services P/L, Pilbara Region, Maintenance (AWU) Enterprise Agreement 2013 – proposed new work cycle – 14 days work, 7 days off roster (14:7 roster) changed to a 7 days work, 7 days off roster (7:7 roster) – as a consequence respondent reduced the annual salaries in the agreement by 25% – dispute about what the appropriate annual salary is for the 7:7 roster – meaning and context of the words ‘annual’ and ‘annualisation’ considered – Commission satisfied that the approach adopted by the respondent, with respect to the salaries on the introduction of the 7:7 roster, was appropriate. Australian Workers’ Union v Fluor Rail Services P/L
