ENTERPRISE BARGAINING – protected action ballot – ss.414, 437 Fair Work Act 2009 – application for protected action ballot order (PABO) by TWU in respect of ‘road crew’ employees of respondent – respondent objected to application on the basis that the group of employees to be ballot was not properly specified as the group was not clearly limited to those who would be covered by the proposed agreement – TWU submitted it did not oppose the description of employees being amended to incorporate reference to agreement – Commission satisfied amending description of employees would satisfy requirements of FW Act for making PABO – respondent also submitted that if PABO were made, exceptional circumstances existed which justified notice period under s.414 FW Act being extended to five days – respondent submitted it would need to put in place contingency arrangements to maintain availability of cash to clients and minimise cash holdings on clients’ premises – ‘exceptional circumstances’ are ‘out of the ordinary course, or unusual, or special or uncommon but need not be unique, or unprecedented, or very rare’ but must also provide justification for a longer notice period [Australia Post] – Commission satisfied ‘exceptional circumstances’ exist – Commission satisfied these circumstances justify an extension of the notice period to five days – PABO made. Transport Workers’ Union of Australia v Linfox Armaguard P/L
March 11, 2016
ANTI-BULLYING – likely to continue – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant employed as a group leader for an education early learning centre – named individuals were the centre manager and a member of management – applicant complained of continuous bullying which commenced in 2013 and further alleged the conduct had a significant effect on her health and welfare – Commission held a conference in October 2014 – it was agreed an independent mediation would take place before applicant went on maternity leave in December 2014 – mediators report was provided to the Commission in February 2015 – issues had not been resolved – applicant on maternity leave until December 2015 – in May 2015 respondent advised Commission that applicant had been transferred to another centre and believed the matter had been resolved – in August 2015 applicant insisted matter proceed to hearing – applicant did not appear at hearing – Commission gave applicant opportunity to make a written submission – applicant responded and did not agree to withdraw matter – named individuals resigned from employment with respondent – respondent applied to dismiss matter – Commission satisfied that because of the resignations there was no risk applicant would continue to be bullied – new manager provided evidence of measures taken to ensure respondent was better situated to deal with such matters – found no risk applicant would continue to be bullied – no reasonable prospects of success – application dismissed. Ms Fsadni
March 11, 2016
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 586 Fair Work Act 2009 – applicant filed a Form F1 on 3 November 2015 – contacted by phone the same day and was advised she had not filed a valid application – correct form filed on 30 November – whether applicant lodged her application within time, albeit using the wrong form – considered the prejudice suffered by the respondent in the applicant’s failure to file the correct form – also considered that applicant was immediately notified she had lodged incorrect form and did not lodge correct application until 30 November – applicant was self-represented and filed an application within time – had she not used the wrong form claim would have proceeded – Commission waived the irregularity of using the wrong form to lodge application – application referred to conciliation. Reilly v Blairlogie Living & Learning Inc.
March 11, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.384, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on grounds applicant did not serve the minimum employment period – applicant was a transferring employee and there was a transfer of business – applicant was provided a letter of offer and contract of employment which referred to a six month probation period – applicant provided evidence respondent did not explain her service would not count – statement must specifically address the requirements of s.384(2)(b)(iii) of FW Act, namely that service with the old employer would not be recognised – Commission did not accept including a probation period in letter of offer or contract satisfied this requirement – not satisfied respondent’s explanation would have made it clear applicant was not able to make an unfair dismissal application in the first six month of employment – requirement of FW Act is that advice must be in writing – oral explanation did not suffice – objection dismissed – minimum employment period met. Gregory v Shaver Shop P/L
March 11, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned the interpretation of a number of provisions of the DBRL Enterprise Agreement 2009 in the context of the union alleging that shift employees were not receiving the night shift allowance – union submitted that clause included payment in lieu of all loadings – clause 76 of the agreement did not adequately compensate employees which is why the Commission required undertakings at time of approval – employer submitted there was no ambiguity and employees were paid rates which include shift loadings – further submitted union was seeking to double-dip with the payment of a loading already included in the rates paid – Commission found rates adequately compensate employees – no ambiguity or uncertainty – words given their plain, ordinary meaning [Golden Cockerel] – annualised salary included night shift allowance – matter concluded. Australian Workers’ Union v Dalby Bio-Refinery Limited
March 11, 2016
ENTERPRISE BARGAINING – bargaining order – ss.228, 230, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed application made by TWU for bargaining orders seeking that respondent restrain from conducting vote until subsequent bargaining meetings held and respondent gave genuine consideration to TWU’s claims – at first instance TWU submitted that respondent had breached good faith bargaining requirements as issued misleading notice and letter to employees signed by manager and TWU delegate that TWU and Consultative Committee endorsed proposed agreement – TWU also submitted that conduct of further ballot held by respondent was objectionable in context of misleading communications and that ballot held during school holidays caused difficulties for TWU to communicate with members as many drivers not at work – TWU submitted that Commission’s decision made in error in that respondent’s communications had to be ‘seriously misleading’ not just misleading and that it was not open to Commission to find that respondent’s conduct as a whole was not unfair conduct which undermined collective bargaining – Full Bench considered whether the particular procedure adopted by employer in respect to conduct of a vote upon proposed enterprise agreement was matter which was relevant to compliance with good faith bargaining requirements – Full Bench found that FW Act not prescriptive about procedures for conduct of ballot to vote upon proposed non-greenfields agreement but that agreement must be ‘genuinely agreed to by employees’ – Full Bench found that if vote was conducted in a way which deprived substantial number of employees opportunity to vote then it would be a matter relevant to assessing whether agreement had been genuinely agreed to – found that issue of timing of conduct of vote may impinge upon bargaining process [CEPU v Contact Electrical] however TWU’s concern about timing of ballot was not tangibly connected to bargaining process – Full Bench found that Commission did not err in finding that conduct of further ballot did not amount to failure to meet good faith requirements – Commission’s finding that no employee could reasonably have held belief that TWU supported agreement was not in error given TWU’s capacity to robustly communicate position – no appealable error found – appeal dismissed. Appeal by Transport Workers’ Union of Australia against ex tempore decision of Hamberger SDP of 18 December 2015 Re: Transit (NSW) Services P/L t/a Transit Systems
March 11, 2016
MODERN AWARDS – 4 yearly review – ss.134, 138, 156 Fair Work Act 2009 – application to insert electrical licence allowance in the Manufacturing and Associated Industries and Occupations Award 2010 and Electrical Power Industry Award 2010 – awards sought to be varied by CEPU in May 2014 to insert an electrical licence allowance – proposed allowance of approximately $34.80 per week based upon current rates – CEPU identified other modern awards that include an electrical licence allowance and submitted this was a common feature of pre-modern awards applying to electricians who became part of these modern awards – also submitted that allowance generally paid in recognition of level of training and skill possessed and practiced, and for responsibilities associated with holding the licence, including supervising electrical work by non-licence holders – CEPU submitted it was not the industry of the employer that should determine whether or not a licence holder is entitled to allowance, but rather that it should be paid in recognition of responsibilities or skills not taken into account in rates of pay – evidence provided by CEPU relating to ‘value adds’ accruing from holding an electrical licence – submitted that licence requirement an additional requirement to that contemplated by the competency standards and classification requirements – Full Bench satisfied that the possession of an electrical licence issued by the appropriate regulator is taken into account by the minimum training requirement and other requirements of the classification definitions – as such the allowance claimed not for ‘responsibilities or skills that are not taken into account in rates of pay’ – no basis for inclusion of allowance in the Manufacturing Award or Electrical Power Award – not satisfied CEPU established a cogent reason for changing the award position – application refused. Manufacturing and Associated Industries and Occupations Award 2010 and Electrical Power Industry Award 2010
March 11, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis that dismissal was a genuine redundancy – respondent lost significant business in 2015 and restructured its fire department operations so as to require substantially fewer staff – changes in operational requirements meant it no longer required the job being done by applicant to be undertaken – Commission found no evidence of any alternative positions which may have suited applicant’s skills – consultation obligations in agreement complicated by poor drafting – satisfied respondent met model consultation obligations – not satisfied consultative committee obligations in agreement complied with – applicant’s dismissal cannot be considered a genuine redundancy – application will be referred for conciliation – circumstances may be regarded as analogous with those considered in Harvey v UES Int’l – copy of decision provided to parties. Byrne v Tyco Fire & Security t/a Wormald
