Twenty-two s.394 (unfair dismissal) applications will be heard in the Fair Work Commission today. The full list is: 1234 Star (Carter), Santosheema Pty Ltd (Alexander), BigAir Group (Anand), Platypus Pty Limited (Jimizez), Gunnedah Preschool Kindergarten Association Incorporated (Leys), Westpac Banking Corporation & Westpac Banking Corporation (Mistry), Morris Corporation Ltd (Reposar), Croker Constructions (Jarvis), STA Traffic Management Solutions Pty Ltd (Beaton), Qantas Airways Ltd (Smith), Tooradin garden Supplies/Metro Quarry Group (Cicciari), Citylink Towing & Transport Aust P/L (Young), KAP Motors Pty Ltd (Costello), ACT Government as represented by the Education and Training Directorate (Dayhew), Transdev Brisbane Ferries Pty Ltd (Mercalfe), TNT Australia Pty Ltd (Martin), Department of Agriculture (Allan), QT Hotels & Resorts Pty Ltd (Csontos), The Cootharinga Society of North Queensland (Mancuso), Adelaide Integrated Precast Pty Ltd (Dornin), Macedonian Community of Adelaide & South Australia Inc. (Gligorovski), Exact Cleaning & Maintenance Services Pty Ltd (Zoran).
March 9, 2016
Only 15 unfair dismissal applications are listed for hearing before Fair Work Commissioners today. They include: Atwood Oceanics Australia Pty Ltd (Munro), Ecocentric Energy Pty Ltd (Darcy), Active Individualised Family Services (Clarke), National Australia Bank (McKibbin), Platypus Pty Limited (Jimizez), Caddy Can Storage Systems (Vic) Pty Ltd (Sivaram), CFC Consolidated Pty Ltd atf CFC Employment Trust (Turner), Morris Corporation Ltd (Reposar), Active Individualised Family Services (Clarke), Department of Education and Training Victoria (Regional Services Group) (Nolen), Murdoch Childrens Research Institute (Lewis), Coates Hire Operations Pty Limited (Chisholm), McDonalds Flooring Accessories (Harrison), Adelaide Community Healthcare Alliance (Targett), Peter W Beck Pty Ltd (Dragani).
March 9, 2016
ENTERPRISE AGREEMENTS – approval – ss.172, 185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve ALDI Regency Park Agreement 2015 – scope of agreement covered employees in ALDI’s Regency Park Region and any new stores which opened in that region – at the time agreement was voted on no stores in the region had commenced trading – employees who voted on agreement were employed by ALDI at other locations but had accepted a written offer of employment to work in the region when stores commenced operations – appellants advanced various grounds of appeal – first ground: agreement should have been made as a greenfields agreement because ALDI was establishing a new enterprise and had not employed any of the persons who would be necessary for the normal conduct of the enterprise – respondent submitted that conducting its traditional operations in a new geographical area is not a genuine new business, and employees had been employed in the enterprise covered by the agreement – Full Bench had to consider if employees were employed at the time the agreement was made and were covered by the agreement – both elements involved questions of fact – found employees who accepted on-going employment in the region were employed by ALDI at the time the agreement was made – further, as their employment comprehended work within the scope of the agreement they were covered by the agreement – second ground: employees who were selected to approve the agreement were not fairly chosen because a group of 17 employees were selected to make an agreement for a much larger group of employees – appellants also submitted employees were not appropriately representative because seven of the 17 selected employees who voted on the agreement were managers – Full Bench held the test to determine whether the group of employees was fairly chosen requires consideration of the employees covered by the agreement, not the employees who vote for the agreement at the time it is made – third ground: the better off overall test (BOOT) was not properly applied – Full Bench found BOOT had been properly considered in the first instance – permission to appeal granted given the important interpretation issues – no appealable error found – each ground of appeal dismissed – appeal dismissed. Appeal by Transport Workers’ Union of Australia & Anor against decision of Bull DP of 22 September 2015 [[2015] FWCA 6373] Re: ALDI Foods P/L as General Partner of ALDI Stores (A Limited Partnership)
March 9, 2016
CASE PROCEDURES – representation – ss.400, 596, 604 Fair Work Act 2009 – permission to appeal – Full Bench – applicant in unfair dismissal matter sought permission to appeal against Commission decision – grounds of appeal were that Commission erred in exercising discretion to permit representation and made a significant error of fact in finding that representation would aid efficiency – Full Bench considered test for determining the public interest under ss.400 and 604 of FW Act described in [GlaxoSmithKline] – not open to appeal bench to substitute its view on matters for determination in absence of error of appealable nature in first instance decision [House v The King] – procedural decisions will not normally be disturbed on appeal unless demonstrable error – Full Bench found Commissioner did no more than apply FW Act’s provisions and the proper approach to s.596 in deciding to permit representation – unexceptional decision of a routine procedural nature – no arguable case of error of kind required by House v The King – not in the public interest to grant permission to appeal – Full Bench declined to grant permission to appeal – application for permission to appeal dismissed. Appeal by Findley against decision of Ryan C of 14 December 2015 [[2015] FWC 8645] Re: Diamond Protection P/L t/a Diamond Protection
March 9, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – consideration of unreasonable – overall circumstances [J Boag and Son] – particular circumstances – applicant on workers compensation undertook activities inconsistent with advice – had long employment history and unblemished record in terms of disciplinary matters – Commission found applicant defrauded employer, mislead doctors, placed himself at risk of aggravating injuries, applicant abused workers compensation system – Commission rejected applicant’s argument that actions could be characterised as some form of self-regulated work hardening initiative – loss of trust fundamental to the maintenance of the employment relationship – application dismissed. Harvey v GM Holden Ltd t/a Holden
March 9, 2016
CASE PROCEDURES – referring question of law – s.608 Fair Work Act 2009 – application for referral of question of law to Federal Court – applicant the registered operator of offshore drilling rig – respondent issued improvement notice to applicant under Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act) – applicant applied to Commission seeking revocation of notice – preliminary question of law determined by Cloghan C who determined historical assessment appropriate – applicant filed an appeal – appeal pending – applicant sought referral of question of law to Federal Court – Commission regularly interprets and applies legislation in many and varied circumstances [Liviende] – Commission held refusal to be the most appropriate course – matter to be determined by Commission – unlikely matter would be resolved more quickly if referred – determination of substantive application would have little practical impact – application refused. Sedco Forex International Inc. v National Offshore Petroleum Safety and Environment Safety Authority t/a NOPSEMA
March 9, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – applicant dismissed for serious misconduct after returning positive drug test – Full Bench satisfied that Commissioner at first instance provided a comprehensive and balanced consideration of the evidence – no arguable case of appealable error – Full Bench considered the public interest test – principles set out in Regan – not satisfied that the public interest is attracted – permission to appeal refused. Appeal by Sullivan against decision of Roe C of 14 December 2015 [[2015] FWC 8559] Re: North West Crewing P/L t/a Westug
March 9, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant requested safer work due to pregnancy – respondent refused request – applicant’s employment subsequently terminated – due to incorrect legal advice applicant lodged incorrect application within 21 day timeframe – ‘exceptional circumstances’ may be comprised of a combination of factors [Nulty] – Commission satisfied exceptional circumstances present warranting the granting of a further period for the making of an application – extension of time granted. Goldberger v Kenfrost (1987) P/L atf The Kenforst Trust t/a Kenfrost (1987) P/L
