ENTERPRISE AGREEMENTS – genuinely agree – ss.185, 186 Fair Work Act 2009 – application for approval of a single enterprise agreement by McDermott Australia P/L – statutory declarations were lodged by the AWU and AMWU – both unions indicated they opposed the approval of the agreement – two grounds of objection were that the application was not accompanied by a properly signed copy of the agreement and that the Commission cannot be satisfied that the employees genuinely agreed to the agreement – Swinburne considered – clear evidence that the request to employees to approve the agreement by voting for it was made to employees who were not ’employed at the time’ – Commission not satisfied that the agreement was genuinely agreed to pursuant to s.186(2)(a) of FW Act – cannot approve agreement – application dismissed. McDermott Australia P/L Ichthys Project Offshore Construction Agreement 2016
March 9, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – alleged dispute involving Forgacs Engineering P/L Enterprise Agreement 2013 – enquiry as to whether prior casual service of a permanent employee should count towards the calculation of ‘continuous service’ for notice and redundancy pay – AMWU argued that relevant clauses of no effect by virtue of inconsistency with the NES – AMWU argued that the definition of ‘continuous service’ in the FW Act encompasses both casual and permanent employment – distinction drawn between notice and redundancy and accruing rights such as annual or long service leave – service of casuals who are later made permanent compared to apprentices employed at the conclusion of an apprenticeship – contended this interpretation is consistent with the entire scheme and objects of the FW Act – Australian Industry Group (AiG) argued that casuals employed by Forgacs receive a 25% casual loading – in addition to specific exclusions in the agreement, AiG argued that this casual loading is used to compensate for a loss of benefits including notice and redundancy pay – Metals Casual Case considered – Commission did not accept the argument that casuals transferring to permanent employment can be reconciled with apprentices being employed as tradespersons – legal principle against ‘double dipping’ in regards to casual employees later made permanent considered a logical and universally accepted industrial practice – Commission accepted that while ‘continuous service’ is not definitively defined within the FW Act, the wording of the agreement is without ambiguity and the FW Act identifies no impediment to the operation of the agreement – found that prior casual service of permanent employees does not count towards the calculation of period of service for notice and redundancy pay – application dismissed. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) v Forgacs Engineering P/L t/a Forgacs
March 9, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant terminated for breach of the respondent’s drug and alcohol policy after returning a positive drug test result – applicant contended test results were unreliable – applicant had accepted a work assignment with random drug and alcohol testing – the respondent arranged for a secondary drug test – secondary sample returned a negative result – secondary report noted low creatine level which indicated a diluted sample – report recommended another test, but this was not carried out – the applicant subsequently dismissed as a result of the positive test – expert witness at hearing gave evidence as to which drug testing kit was to be relied on – Commission satisfied of test and analysis reliability – considered whether dismissal was harsh, unjust or unreasonable – considered valid reason set out in Selvachandran – on the balance of probabilities, Commission found that presence of amphetamines, methamphetamine and cannabinoids in the applicant’s system was a breach of the terms and conditions of employment and valid reason for termination – application dismissed. Hafer v Ensign Australia P/L t/a Ensign International Energy Services
March 9, 2016
ENTERPRISE AGREEMENTS – pre-approval requirements – ss.186, 585, 604 Fair Work Act 2009 – appeal – Full Bench – appeal by MUA against decision to approve the SLOA Enterprise Agreement 2015 – MUA submitted application missing information about union or employee bargaining representatives involved in agreement making process – MUA submitted application redacted in part and did not comply with procedural rules – no indication omissions/ redactions remedied prior to approval of agreement – Full Bench held additional ground properly identify appealable error – agreement should not have been approved – permission to appeal granted – appeal upheld – decision quashed – application for approval dismissed. Appeal by the Maritime Union of Australia against decision of Hamilton DP of 17 December 2015 [[2015] FWCA 8698] Re: SMIT Lamnalco (Australia) P/L
March 9, 2016
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158(1) Fair Work (Registered Organisations) Act 2009 – Full Bench – application to amend eligibility rules to extend capacity to enrol as members persons employed by ResMed Limited (ResMed) – previous decision determined Commission would consent to AMWU’s rule amendments in part [[2016] FWCFB 22] – ResMed made application to Federal Court arguing AMWU’s eligibility rule amendment not made according to its rules and jurisdictional perquisite to grant consent had not been met – Commission not satisfied ResMed would suffer any significant prejudice prior to determination of its Federal Court application – application dismissed. Australian Manufacturing Workers’ Union (AMWU)
March 9, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – applicant refused an extension of time to make unfair dismissal application – respondent applied for costs associated with defending application – respondent applied for costs associated with defending application – respondent submitted application made vexatiously and without reasonable prospect of success – applicant was casual employee and had made application 399 days after the dismissal took effect – Commission found insufficient basis to conclude application was pursued vexatiously or without reasonable cause – right of employee to make application should not be restricted and as such there is a high bar to the granting of costs – distinction made between ‘very limited prospects of success’ and ‘no reasonable prospects of success’ – Commission not satisfied that applicant’s case so hopeless that it should have been reasonably apparent that there were no reasonable prospects of success – application for costs dismissed. Zamegar v Guardian Network t/a Guardian Network P/L
March 9, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application lodged one day late – application filed by Express Post – application received six days later despite Australia Post guarantee of next day delivery – delay in delivery of Express Post envelope constitutes exceptional circumstances [Winnie Wal Ling Leung] – Commission unable to form clear view about merits of the matter however detailed consideration not necessary in such cases [Kyvelos v Champion Socks] – given similarity in circumstances Commission bound to follow Winnie Wai Ling Leung – Commission found Australia Post’s delay provides evidence of exceptional circumstances – extension of time granted. Yeoman v The Trustee for Fuelcraft Unit Trust t/a Liquip Victoria
March 9, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – misconduct – s.394 Fair Work Act 2006 – applicant terminated due to serious misconduct – applicant had dispute with customer in relation to the amount customer should be charged for work undertaken – applicant poured water into the customer’s fuel tank before he returned car to customer – applicant submitted he did so because he was returning the car in the same condition as it was when it arrived in the workshop – respondent investigated incident then dismissed applicant – applicant contends dismissal was harsh, unjust and unreasonable – respondent denies allegation and submits dismissal was consistent with Small Business Fair Dismissal Code – Commission satisfied respondent a small business employer – applicant had commuted serious misconduct – found dismissal consistent with Small Business Fair Dismissal Code – applicant not unfairly dismissed – application dismissed. Guthrie v AJ & T Pulbrook P/L t/a Brock Motors
