Thirty four applications governing disputes or unfair dismissal will be heard in the Fair Work Commission today. The full list includes: Broadspectrum (formerly known as Transfield Services) (Brown & Welsh), Pilbara Ports Authority (Matthiessen), Dwyer Engineering and Construction Pty Ltd (Campbell), Automotive Holdings Group Ltd (Burstein), Deals I Love (Australia) Pty Ltd (Williams), Bay of Isles Community Outreach Inc. (Fraser), The Graviety Group Pty Ltd (Ganyani), Australian Taxation Office (Rahman), Anglical Retirement Villages Diocese of Sydney (Higelin), Bayrose Pharmaceuticals Pty Ltd (Pogson), HB Bowral Pty Ltd (Luckman), AAT Kings Coach Company Pty Ltd (Sutherland), Coles Supermarkets (Australia) Pty Ltd (Wilson), Positive Administration Services Pty Ltd (Dawson), Hillsbus Co. Pty Ltd (Perry), Activ Foundation Incorporated (Sanzana), Danny’s Bar and Bistro Pty Ltd (Barden), Retic Water Pty Ltd (Peterson), Red Crayon Pty Ltd (Mero), Metro (Singh), Ashford Homes Pty Ltd (Bechara), Medicalone Pty Ltd (Hudspith), Carrera Total Pty Ltd (Saleski), Aizome1 Pty Ltd (Kelly), Daromi Pty Ltd (Barron), Tagteam Australia (Waras), TNT Australia Pty Ltd (Martin), Zintech Cladding and Roofing (Murray), Anglicare SA Incorporated (Hardy), The Symon Trust (Horlor), Plastech Electrical Pty Ltd (Pedicini).
March 8, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – demotion – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss unfair dismissal application – appellant employed as security guard – appellant alleged he was transferred to a new site and demoted, and that demotion constituted dismissal – at first instance the Commission dismissed application on basis that neither the reduction in appellant’s remuneration or duties was significant, and appellant was still employed by respondent – on appeal, appellant submitted that the Commission erred in requiring that there be a significant reduction in appellant’s remuneration and duties, and that appellant no longer be employed by the respondent – appellant submitted that employer bore the responsibility of demonstrating there had been no significant reduction in remuneration or duties, and that appellant remained employed – Full Bench agreed with appellant that the Commission erred in applying legislative provisions – appellant cannot be required to negative both limbs of exception under s.286(2)(c) of FW Act as it would lead to the perverse result that a demotion could never amount to a dismissal, as an applicant would be required to demonstrate that they were no longer in the respondent’s employ – approach taken by Commission involved appealable error of law – Full Bench satisfied that allowing permission to appeal in the public interest – permission to appeal granted – notwithstanding error in approach taken by Commission, Full Bench not satisfied that any repudiation of appellant’s contract of employment occurred – contract of employment required appellant to work in a security guard role at any site for which the respondent held the contract, and stated he would be paid for the role and required duties in accordance with the relevant industrial instruments – the transfer to a new location and adjustment in duties and remuneration were consistent with employment contract – no repudiation of employment contract – appeal dismissed. Appeal by Moyle against decision of O’Callaghan SDP of 8 December 2015 [[2015] FWC 8330] Re: MSS Security P/L
March 8, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – permission to appeal granted on 11 November 2015 – substantive appeal determined on papers – appellant claimed first instance findings regarding Small Business Fair Dismissal Code and high income threshold in error – appellant contended decision did not identify conduct relied upon by appellant in making decision to dismiss employee nor consider reasonableness of employer’s relevant belief – also claimed respondent employee’s income exceeded high income threshold – Full Bench found in order to assess existence of belief and reasonableness of ground for belief necessary for Commission to consider evidence put forward by appellant of employee’s conduct that lead to dismissal – appellant gave evidence of employee undermining authority, taking leave improperly, making referrals to non-approved financial service firms, failing to return from work following lunch, among other issues – Full Bench found first instance decision did not demonstrate consideration of this evidence when determining employer’s belief and its reasonableness – high income threshold essentially question of fact based on evidence of nature of monthly payment to employee – issue was considered in earlier jurisdictional decision of Commission therefore unnecessary to determine matter in these proceedings – Full Bench concluded first instance analysis of the Code was attended by errors of appealable nature – consideration of evidence in matter showed dismissal was consistent with the code because employer believed on reasonable grounds that employee’s conduct was sufficiently serious to justify immediate dismissal – Full Bench allowed appeal, quashed decision of Commission at first instance and dismissed respondent’s unfair dismissal application. Appeal by Lloyd & Co P/L t/a Lloyd & Co against decisions and order of Ryan C of 14 July 2015, [[2015] FWC 4242] Re: Suttie
March 8, 2016
RIGHT OF ENTRY – dispute over right of entry – discussions – ss.492, 505, 604 Fair Work Act 2009 – appeal – Full Bench – appellant and CQS could not agree upon a room or area of the premises in which a permit holder was to conduct interviews or hold discussions with employees – appellant sought a declaration that crib rooms of Dragline 34 and Dragline 35 were rooms or areas in which discussions may be held under s.492(3) of FW Act where agreement on location cannot be reached – at first instance the Commission found that appellant was not entitled to hold discussions in Draglines – for permission to appeal and an appeal – grounds of appeal advanced were: that the Commission’s interpretation of a s.492(3)(b) contrary to grammatical meaning of the words, inconsistent and contrary to purpose of the provision and inconsistent with objects of FW Act; that the Commission was wrong in failing to interpret s.492(3)(b) as meaning that if the purpose of an area or room was considered appropriate for the purpose of taking meal or other breaks by an occupier, that area, so long as the persons to be interviewed or participate in discussions ordinarily took meal or other breaks in that room or area, was appropriate for them to be interviewed or hold discussions with a permit holder; and the the Commission was wrong in failing to find that the purpose of an area or room that was provided to employees which contained all the things that are associated with eating meals or taking other breaks that are usually found in such an area was provided by their employer so that they could take their meal and other breaks – appellant submitted it was in the public interest to grant permission to appeal because the matter concerned an important question concerning the rights of permit holders and the rights of employees to participate in discussions; the matter concerned an important questions about the proper construction of s.492(3)(b); and the matter has significant consequences for permit holders, occupiers of premises and employees aqnd employers generally, and for the mining industry specially – first time since the enactment of the current s.492 that a Full Bench has been called upon to interpret the section – Full Bench found it was in the public interest that permission to appeal be granted – Austral Bricks Case adopted – no dispute that there was no agreement between the parties on a room or area to conduct an interview or hold discussions – dispute centred on the arguments of the parties in relation to the requirements of s.492(3)(b) – held the broad language of the section must be given its ordinary and natural meaning – Full Bench did not consider that the use of an area for multiple purposes deprives it of the description in s.492(3)(b) – key consideration was the purpose or purposes of providing the area from the employer’s perspective – as the area was provided, in part, for the taking of meal and other breaks it satisfies the description in s.492(3)(b) – Full Bench concluded that a permit holder may conduct an interview or hold discussions in the specified locations – appeal allowed – decision at first instance quashed. Appeal by Construction, Forestry, Mining and Energy Union against deision of Asbury DP of 2 November 2015 [[2015] FWC 3694] Re: Central Queensland Services P/L c/a BHP Billiton Mitsubishi Alliance
March 7, 2016
Victoria Police has two members seeking a resolution to a dispute in the Fair Work Commission this morning. The full list includes: Tharawal Local Aboriginal Land Council (Ely); Lifestyle Solutions [Aust] Ltd (Pittman); Transdev (Alexander); TNT Australia Pty Ltd (Allenspach); L. V. Dohnt and Company Pty Ltd (King); Coateshire (Medwin); Business Protection Group (Cadd); Reck Enterprises (Facer); Goodman Fielder Limited (Maudlen); Telstra Corporation Limited (Smale); Goodstart Pty Ltd (Bullock); Merck Sharp and Dohme [Australia] Pty Limited (French); Members Equity Bank Limited (Meehan); Victoria Police (Matthews/Raso); The Herald and Weekly Times Pty Ltd (Dar); Longarrla Pty Ltd (Lehmann); G. B. Galvanizing Service Pty Ltd (Watts); Ashford Homes Pty Ltd (Bechara); AFM Roofing (Collins); East Gippsland Shire Council (Alexander); Telstra Corporation Limited (Smale).
March 4, 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 4, 2016
Thirty three unfair dismissal hearings will be heard today in the Fair Work Commission. The full list is: Kangerong P/L (Smith), NP Distribution Pty Ltd (Dimmitt), QBD The Bookshop Pty Ltd (Longman), Atwood Australian Waters Drilling Pty Ltd (Taylor), Jaydec Construction Pty Ltd (Viespescu), Ashford Homes Pty Ltd (Bechara), Speciality Fashion Group (Tamblyn), BridgePro Engineering Pty Ltd (Roetz), Sarina Russo Job Access (Ellery), Solaris Paper Pty Ltd (Gonzalez), GC Fresh Foods Pty LTd as Trustee for the GC Fresh Foods Unit Trust (Moorehead), Residential Projects Australia (Parrott-Jolly), Shen Therapies Reproductive Medicine Pty Ltd (Peters), Global Intellectual Group (Stephens), CUB Pty Ltd (Atiken), The Salesian Society Inc (Kirkham), Channel Inn (Christmas), Ozcare (Mazi), The H + C Trust (Rauk), KM & BA Broome (Williams), Adelaide Chinese News Pty Ltd (Wang), Jaydec Construction Pty Ltd (Viespescu), Nippon Hospitality Pty Ltd (Kuremoto), Coles Group Supply Chain Pty Ltd (D’Antonio/Medic), Marist Brothers St Joseph’s College (Burke), The Henley Group (Collins), Speciality Fashion Group (Tamblyn), Fairchild Multimedia Pty Ltd (Zajakovski), Atwood Australian Waters Drilling Pty Ltd (Taylor), Department of Human Services (Ivanovski), G4S Secure Solutions Pty Ltd (Watson),
March 4, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission held that employer had a valid reason for dismissal, and that whilst employee had a dismissive attitude to attempts by employer to implement improved health and safety standards, the dismissal was harsh and unjust – compensation of $11,507.16 ordered – permission to appeal was granted on transcript – grounds of appeal included that the Commissioner erred in finding that a positive blood alcohol content test would lead to a stand down of an employee and not a dismissal under the company’s Drug and Alcohol Policy, and failing to appreciate that the decision to dismiss employee was based on a loss of trust and confidence in his ability to comply with all safety policies, rather than a sanction for breaches of safety policies – Full Bench found that there did not appear to be a clear link between the findings made by the Commissioner and the outcome reached – the Commissioner’s ultimate decision appeared to be counter-intuitive – decision of the Commissioner attended by appealable errors – appeal allowed – on re-determining the application the Full Bench decided that dismissal was not harsh, unjust or unreasonable – application dismissed. Appeal by Metro Quarry Group P/L against decision of Bissett C of 29 September 2015 [[2015] FWC 6472] Re: Ingham.
