RIGHT OF ENTRY – dispute over right of entry – ss.484, 505 Fair Work Act 2009 – application to deal with right of entry dispute – dispute re whether persons on tug boat Mallina were employees such that AIMPE permitted to utilise entry rights – Rivtow asserted no employees on boat – this decision specifically relates to production of documents sought by AIMPE – Order for Production of Documents granted 1 April 2016 – Rivtow objected and asserted ‘fishing expedition’ – AIMPE asserted documents necessary to determine whether employees – consideration of revocation of Order involves same approach as whether Order should be made in first place – not satisfied evidence provided as yet by AIMPE establishes prima facie case that persons are employees or that they wish to participate in discussions – link between documents sought and issue to be determined not established with sufficient particularity – on material at present time, not persuaded Order for Production of Documents should stand – Order revoked. Australian Institute of Marine and Power Engineers, The-West Australia Branch v Rivtow Marine P/L
April 26, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant submitted he was dismissed to prevent accrual of long service leave entitlement – respondent submitted applicant’s termination was a genuine redundancy stemming from cash-flow problems – Commission satisfied applicant’s position made redundant – no ulterior motive – not satisfied respondent complied with consultation requirements arising from relevant modern award – therefore applicant’s dismissal not a genuine redundancy as defined by FW Act – application must be heard on its merits – applicant not dismissed for reason arising out of capacity or conduct – Commission held decision to bring about the dismissal of applicant because of an operational reason – found dismissal sound, reasonable and defensible – not persuaded termination was harsh, unjust or unreasonable – application dismissed. Fletcher v Commodore Wreckers (Gold Coast) P/L t/a Commodore Wreckers
April 26, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – frustration – s.394 Fair Work Act 2009 – applicant dismissed following conviction for serious criminal offences – applicant lodged unfair dismissal application – conciliation unsuccessful – indefinite adjournment granted in April 2013 – respondent heard nothing from the Commission or applicant for the next two years and assumed matter had been discontinued – respondent requested that application be dismissed as applicant had not articulated a case of any substance – applicant advised he was unable to access any resources whilst incarcerated and requested matter be adjourned until he was released from prison – applicant’s argument did not have reasonable prospects of success – adjournment request would cause significant and indefinite delay and cause additional costs and expenses – Commission considered it appropriate to exercise discretion to dismiss application – application dismissed. Maddison v Commonwealth of Australia (acting through and represented by the Department of Defence)
April 26, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for alleged safety breach – applicant submitted that respondent had not properly identified how he had breached safety processes – submitted his conduct was consistent with established work procedures – respondent submitted policy and procedures clear – applicant had received earlier warning regarding safety procedures – respondent asserted it had undertaken a thorough investigation of the incident – Commission satisfied on evidence that applicant breached safety procedures – Weir Minerals Australia Ltd considered – Commission satisfied valid reason for dismissal – Commission considered other relevant factors – applicant employed by the respondent for 35 years – applicant defended his actions but demonstrated a willingness to comply in the future – applicant did not attempt to cover up what had happened – due to the application of other relevant factors Commission satisfied dismissal was harsh – satisfied dismissal unfair – reinstatement inappropriate given applicant’s personal circumstances – compensation reduced as applicant had not taken steps to mitigate loss and due to valid reason for dismissal – compensation of $30,000 ordered. Ptolemy v Nestle Australia Limited
April 26, 2016
TERMINATION OF EMPLOYMENT – high income threshold – minimum employment period – ss.383, 384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected to application and submitted applicant had not served the minimum employment period and earned more than the high income threshold – applicant employed as General Manager – worked for prior company (Struga) which was sold to respondent – prior to applicant commencing employment with respondent, no evidence that applicant advised in writing that his prior service would not be recognised – no dispute that Struga transferred to respondent and that applicant was transferring employee – Commission satisfied applicant served the minimum employment period – applicant stated he earned $145,000 inclusive of superannuation, and respondent stated applicant earned $145,000 plus superannuation – respondent did not provide applicant with payslips during his employment – parties provided email and text evidence of pay discussions – Commission did not accept that the text messages represented agreement between the parties – clear from applicant’s email that his package was $145,000 plus superannuation – Commission satisfied applicant’s salary exceeded high income threshold – whether applicant covered by Cleaning Services Award 2010 – Commission not satisfied that award covered applicant’s employment – earnings exceeded high income threshold – not covered by award – not protected from unfair dismissal – application dismissed. Sulejman v Cleaning Facility Cleaning Management P/L t/a PPM Corporate
April 26, 2016
ENTERPRISE BARGAINING – single interest employer authorisation – ss.248, 249 Fair Work Act 2009 – applicant and 26 other employers applied for single interest employer authorisation in relation to a proposed enterprise agreement, the Oporto Enterprise Agreement 2016 – application specified the employers and employees to be covered by the proposed agreement and the Employee Relations Consultant for Oporto was the person nominated by the employers to make applications under the FW Act if the authorisation was made – a statutory declaration in support stated that the employers agreed to bargain together and that no person was coerced, or threatened to coerce, any of the employers to agree to bargain together – each employer provided written declarations and authorisations in support – Commission satisfied employers agreed to bargain together, had not been subject to any coercion and were franchisees of the same franchisor – application granted. Oporto (Franchising) P/L t/a Oporto and Ors
April 26, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute in McMah P/L Enterprise Agreement 2014 – 2018 – applicant was employed as a Contract Security Officer at the premises of the University of the Sunshine Coast – Commission to determine three issues: whether employees had to remain on campus during their meal breaks, whether classification matching in agreement was correct and if employees are entitled to first aid allowance – employees were required under agreement to undertake broad spectrum of Standard Operating Procedures – no provisions in the Agreement dealing with first aid allowance or meal breaks, terms are found in Security Services Industry Award 2010 – Agreement does not provide for its own classifications or wage rates, but incorporates them from other industrial instruments – Agreement incorporates the Security Award and the Higher Education General Staff Award 2010 – applicant argued she and other contracted Security Officers were classified under either Level 3 or Level 4 of Schedule C of the Security Award – respondent maintained Security Officers are classified at Level 2 – Commission found that the Higher Education Award was the applicable correlated Award for the Security Officers at the University – Higher Education Award has only one level of classification for Security Patrol Officers at Level 2 where rates of pay are equivalent for respondent’s labour hire Security Officers at the University – Commission found in both modern award’s First Aid entitlements that there was no reference in the Standard Operating Procedures for a Security Officer being requested or nominated as a First Aider – Commission of the view that if a meal break is unpaid there should be no requirement that employees remain on campus or be available in emergencies, unless there is agreed arrangement between the employer and the employee. Malic v McMah P/L t/a Men at Work Labour Hire
April 26, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant lodged unfair dismissal application more than 21 days after dismissal took effect – Commission can extend time for the lodging if satisfied there are exceptional circumstances – applicant registered for e-filing, attempted to upload an unfair dismissal application and paid the filing fee within 21 days – on the same day he received an email advising that his application was not taken to have been filed as it would need to be reviewed – email advised he would be advised by email if there were any further issues – on that same day a telephone message was left for the applicant to contact Commission as there had been no application form attached to lodgement – no record that the applicant was ever sent an email advising his application had not been accepted – applicant acted promptly when advised that his application had not been received – combination of factors including the Commission’s failure to advise by email that application had not been received constituted reasonable explanation for the delay – extension of time granted. Poolperm-Johnson v Hobart Police & Community Youth Club Inc
