GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant employer sought permission to appeal decision of Commission at first instance – Commission granted employee extension of time for filing application to deal with contraventions involving dismissal – Commission found employee’s remote location meant limited communication services and opportunity to obtain advice – employee also travelled from Darwin to New South Wales to visit his ill father after the dismissal – employee accessed legal services upon return to Darwin once was aware that this was possible – Commission had applied principles in Nulty to determine exceptional circumstances – Full Bench found rarely appropriate to grant permission to appeal unless arguable case of appealable error demonstrated – decision whether to extend time for filing an application involves broad exercise of discretion – decision-maker must have acted on wrong principle, mistaken facts, taken into account an irrelevant consideration or failed to take into account relevant consideration or made a decision which is unreasonable or manifestly unjust [House v the King] – appellant submitted Commission failed to consider evidence properly and respondent failed to explain whole period of delay – Full Bench held satisfied open on evidence before Commission to find combination of factors existed which together amounted to exceptional circumstances – permission to appeal refused. Appeal by Hampton Transport Services P/L against decision of Lawrence DP of 16 November 2015 [[2015] FWC 7857] Re: McMillian.
March 4, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for extension of time to file application to deal with general protections dispute involving dismissal dismissed – appellant lodged appeal 272 days outside statutory timeframe – appellant submitted delay in filing appeal due to receiving legal advice and time taken to understand decision – appellant submitted Commissioner committed an appealable error by failing to fully consider merits of application and to properly apply the reverse onus of proof that applies to general protection disputes – Full Bench noted sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so [Jobs Australia v Eland] – Full Bench found no proper basis to extend appellant’s time to file appeal – even if appeal had been made within time, Full Bench considered it unlikely that it would be in the public interest to grant permission to appeal – did not consider Commissioner’s decision attended by appealable error or that there were other grounds on which permission to appeal might properly be granted – regarding reverse onus of proof, employee must firstly establish that there was adverse action of the type alleged – considerable prejudice to respondent if extension granted – extension of time to file appeal refused – appeal dismissed. Appeal by Wintle against decision of Roe C of 5 March 2015 [[2015] FWC 1513] Re: Metro Trains Melbourne P/L t/a Metro Trains Melbourne.
March 4, 2016
TERMINATION OF EMPLOYMENT – contract for specified term – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – in decision at first instance the Commission found appellant’s employment terminated pursuant to fixed term contract and that the appellant had not completed the minimum employment period – appeal listed for hearing – appellant requested adjournment twice on medical grounds – Full Bench granted first adjournment request, refused the second – hearing conducted with no appearance for appellant – appellant had not complied with directions – Full Bench found no information that indicated it would be in the public interest to grant permission to appeal – Commissioner had not made any error in the application of principles to the facts as presented – permission to appeal refused. Appeal by Gugiatti against decision of Williams C of 9 April 2015 [[2015] FWC 2447] Re: SolarisCare Foundation Ltd.
March 4, 2016
ENTERPRISE BARGAINING – bargaining order – ss.228, 230, 604 Fair Work Act 2009 – appeal – Full Bench – application by CFMEU for bargaining orders against LCR Mining Group (LCR) under s.229 of FW Act granted in decision at first instance – appeal by LCR against findings that LCR not meeting good faith bargaining requirement to attend and participate in meetings under s.228(1)(a) and that it was reasonable to make bargaining order under s.230 – Commission must grant permission if satisfied it is in the public interest – public interest test is discretionary, involving broad value judgment – Commission found interpretation of ‘meeting’ and ‘attending’ for purposes of s.228 and 230 an important matter with broad implications, particularly regarding Commission’s role in facilitating bargaining – J.J. Richards & Sons adopted – found Commissioner’s interpretation of s.228 and s.230 that in no circumstances could a tele/videoconference constitute a ‘meeting’ or qualify as ‘attending’ for purposes of s.228(1)(a) conflicted with principle that in absence of clear necessity, words of limitation should not be read into legislation where they do not appear – Tahmoor Coal P/L considered – would be adverse consequences for parties if restrictive interpretation of FW Act prevented use of conferencing technologies in bargaining process – in absence of express words of limitation, ‘meeting’ and ‘attending’ must be given a contemporary meaning in context of FW Act to encompass ‘meetings of the mind’ – interpretation of s.228(1)(a) at first instance too restrictive and inconsistent with objects of FW Act – appeal upheld – decision at first instance quashed and order set aside. Appeal by LCR Mining Group P/L against decision and order of Saunders C of 20 November 2015 [[2015] FWC 7970] Re: Construction, Forestry, Mining and Energy Union.
March 3, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applications to deal with dispute under McCain Foods (Aust) P/L Ballarat Production Enterprise Agreement 2014 concerning payment of overtime for casual – whether employees who work 12 hour shifts entitled to shift penalties when working overtime – applicant submitted overtime clause of agreement applied to casuals as provision does not exclude employees – respondent argued all employees including casuals are paid at overtime rates once they have worked more than 38 hours a week – relevant provisions of agreement considered – interpretation of words in agreement – clause on any reading has a plain meaning and is unambiguous – words to be given their plan, ordinary meaning [Golden Cockeral] – task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair and just outcome [Golden Cockeral] – no common understanding of application of clause to seven day twelve hour continuous shift roster and an absence of custom and practice – Commission concluded employees working twelve hour shifts under the seven day twelve hour continuous shift roster not entitled to shift allowances when working additional hours. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian ‘Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) P/L
March 3, 2016
CASE PROCEDURES – application dismissed on FWC’s own initiative – ss.394, 587 Fair Work Act 2009 – application for unfair dismissal remedy – at conference applicant requested to provide medical assessment to confirm he was medically fit to continue application – upon receipt of medical evidence Commission issued further amended directions – applicant failed to attend further conference and failed to comply with directions and amended directions – parties unable to provide an Agreed Statement of Facts pursuant to amended directions – applicant advised Commission he was medically unfit to continue and arbitration vacated – Commission contacted applicant several items to confirm whether applicant pursue application – Commission requested applicant provide evidence that he was medically unfit to proceed with application – applicant advised that failure to provide information would lead to dismissal of matter – no further communications received from applicant – application dismissed for want of prosecution pursuant to s.587(3) of FW Act – Order issued. Spee v BHP Billiton WAIO P/L
March 3, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work ACt 2009 – application for unfair dismissal remedy – applicant dismissed for serious misconduct – a number of employees who reported to the applicant had left the organisation – respondent conducted investigation regarding applicant’s behaviour towards employees – found the treatment of subordinates condescending, belittling and humiliating – applicant’s behaviour towards employees – found the treatment of subordinate condescending, belittling and humiliating – applicant’s supervisory practices amounted to a breach of bullying and harassment policy which amounted to serious misconduct – found valid reason for dismissal – applicant’s conduct was inappropriate for the position she held – found applicant not unfairly dismissed – application dismissed. McLean v The Australian Council for Education Research Limited.
March 3, 2016
CASE PROCEDURES – employer in liquidation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy made in July 2012 – conciliation unsuccessful – matter listed for hearing – in October 2012 respondent advised Commission it had appointed a voluntary administrator from SV Partners – in June 2015 SV Partners informed the Commission that the winding up of the company was on-going – application cannot proceed without leave of the Court – Commission is not a ‘Court’ and is therefore unable to grant leave [Smith] – application stayed until leave of the Court is granted. Carlson v Poolrite Australia P/L
