ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – alleged dispute regarding sick leave – whether employee entitled to extended sick leave in accordance with Moorabbin Manufacturing Operations Enterprise Agreement 2011-2015 – applicant bitten by poisonous spider – absent from work for 17 days – issue whether medical condition was ‘prolonged’ and ‘expected to last for an extended period’ – Golden Cockerel applied – ambiguity in terms ‘prolonged’, ‘serious’, and ‘extended’ – company’s history of applying term considered – applicant’s condition not found to be serious or expected to last for an extended period – applicant not entitled to extended sick leave. Daley v Coca Cola Amatil t/a Coca Cola Amatil (Australia) P/L
March 3, 2016
Twenty three applicants will chance their arm today and try and convince a Fair Work Commissioner they have been wronged. The full list of angels includes: Medalist [Test-Rite] (Kazmar); Commonwealth of Australia as represented by the Australian Federal Police (Read); Westpac Banking Corporation (Simpson); IBM Australia (Rogan); Belgravia Leisure Pty Ltd (Pertot); Ngnampa Health Council (Hodder); Woolworths Limited (Mastorakos); True Value Solar Pty Ltd (Skoullos); Spotless Group [Utility Services Group Limited] (Spencer); CUB Pty Ltd (Aitken); JLF System Pty Ltd (Edwards); FPC30 Ltd as Trustee for FPC Green Fund Trust (You); Trans North Bus & Coach (Doyle); JLF Systems Pty Ltd (Edwards); Proud Jewellers Pty Ltd (King); Civil Contractors Federation-Queensland Branch (Sawford); Ozcare (Mazi); Ace Recycling Pty Ltd (Hain); Calvary Health Care Adelaide Limited (Hansen); Heigh Manufacturing [No 2] Pty Ltd (Strudwick); LHI Retirement Services – Glynde (Vucetic); Salena Estate Wines Pty Ltd (Anderson); and Gowdie Management Group (Lankapothu).
March 2, 2016
CASE PROCEDURES – apprehension of bias – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis applicant had not been employed for minimum employment period, and applicant filed application three days before dismissal took effect – applicant subsequently filed a second application which was out of time – both applications listed for mention – respondent withdrew its objection that applicant had not served minimum employment period – respondent’s lawyer sought that the Commissioner rescue himself from determining the second objection on the basis of apprehended bias given a comment made during the mention – respondent contended that an apprehension of bias arose because the Commission had cautioned respondent in respect of costs if the jurisdictional objection regarding the expiry of time and the waiver of irregularity was pursued – respondent claimed the caution as to costs indicated that the Commission may have pre-judged the merit of the objection before having the benefit of submissions – no audio recording of exact words used by the Commission and parties exists – Commission acknowledged the issue of costs was raised but did not recall words used – ResMed Ltd v AMWU considered – reasonable bystander test – unrealistic to conclude that a fair minded lay observer would come to the view that comments made by the Commission at the mention would lead to a real possibility the Commission would not bring an impartial mind to resolution of respondent’s second objection once both applicant and respondent set out their respective cases – reasonable apprehension must be ‘firmly established’ – any view or comment expressed by the Commission in the mention would have no possible impact on substantive proceedings or any costs applications – Commission did not rescue himself from dealing with the matter. Gee v Tasmania Ports Corporation P/L t/a Tasports
March 2, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – dispute relates to redundancy provisions arising under clause 23 and Appendix 2 of the Treasury Wine Estates Vintners Ltd – Great Western Maintenance and Laboratory Collective Agreement 2014 – jurisdictional objection – respondent asserts that AMWU raised dispute after affected employees were no longer employed and for a dispute of this kind to be progressed it had to be initiated by the employees when they were in employment – AMWU asserts that whilst dispute concerned entitlements of two individuals it could also be characterised as a dispute about the application of clause 23 and Appendix 2 of the agreement in general – Commission satisfied dispute is about the application of clause 23 and Appendix 2 of the agreement – Commission satisfied on wording of agreement that AMWU has the right to initiate a dispute and the power to notify a dispute to the Commission in its own right – North Goonyella and King distinguished from the circumstances of this matter – Commission found dispute was notified by the AMWU in its own right and this is not affected by the fact that the employees in question had left employment at the time the dispute was notified – Commission satisfied it has jurisdiction to deal with the dispute – respondent directed to file further materials – matter listed for further hearing. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian manufacturing Workers’ Union (AMWU) v Southcorp Wines P/L.
March 2, 2016
The Australian Municipal, Administrative, Clerical and Services Union and Buloke Shire Council are in a s.739 (Application to deal with a dispute) arm-wrestle before Fair Work Commissioner Bissett in Melbourne.
March 2, 2016
Perfume Network NSW Pty Ltd is ‘on the nose’ with four ex-staffers. The quartet is amongst a 30 strong tribe pressing the Fair Work Commission to give them a golden handshake. The full list of applicants is: University of Wollongong (Saffitoi), ISS Facility Services Australia Ltd (Rucker), Davell Products (Davies), HNZ Australia Pty Ltd (Gorlin), Next Residential Pty Ltd (Gardiner), Australia Western Railroad Pty Ltd (Moroe), Giacci Bros Pty Ltd (Ruiz/Wheatley), Country Fire Authority (Ross), Employsure Pty Ltd (Sidney), Milgate Primary School (Heading), Pearcedale Egg Farm (Morphett), CUB Pty Ltd (Sayers), Jania Jewellery Pty Ltd (Suto-Allday), FS Structural Pty Ltd (Barry), Boathouse Tavern (Roberts), Legrand Australia (Sheehan), The H + C Trust (Rauk), Phillip Arcidiacono (Llauder-Caddy), JLF Systems Pty Ltd (Edwards), FPC30 Ltd as Trustee for FPC Green Fund Trust (You), Trans North Bus & Coach (Doyle), JLF Systems Pty Ltd (Edwards), Prouds Jewellers Pty Ltd (King), Civil Contractors Federation-Queensland Branch (Sawford), Gilbarco Aus Pty Ltd (Singh), San Remo Macaroni Company Pty Ltd (Sianipar), Boart Longyear Australia Pty Ltd (Mudge), Perfume Network NSW Pty Ltd (Abbasi, Kashif, Mushtaq, Riaz), Trustee for the Marshall Family Trust (Hanlsow).
March 2, 2016
CONDITIONS OF EMPLOYMENT – redundancy – s.120 Fair Work Act 2009 – application for variation of redundancy pay – applicant sought to reduce redundancy pay from 14 weeks to four weeks – respondent employed for over eight years as store manager – respondent made redundant due to store closure – applicant submitted made respondent offer of ‘acceptable employment’ at another store location – applicant rejected offer and respondent relocated another staff member to create role for respondent at further store location – respondent submitted was presented with options of redeployment of a redundancy package – respondent contended initially decided to take redundancy package as new store too far to travel – Commission not satisfied respondent entitled to conclude he had choice of redeployment or pay of full redundancy entitlements in circumstances – applicant entitled to pursue application where offer of redeployment rejected – s.120 of FW Act does not impose absolute test on employer’s ability to ‘obtain’ alternative employment but rather refers to action which redundant employee [Derole Nominees] – applicant did act to additional inconvenience and cost for respondent in another store – minor applicant’s offer not deemed sufficient basis for refusing offer of redeployment [Spotless] – offer of redeployment held to be ‘acceptable employment’ – redundancy entitlement reduced to four weeks – order issued. Man to Man P/L t/a Man to Man v Mekkaoui
March 2, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.387, .400, 604 Fair Work Act – appeal – Full Bench – Commission found at first instance while vaild reason to dismiss, dismissal harsh and unjust – $42,846.90 compensation ordered – employer appeal related to finding dismissal harsh and unjust and quantum of compensation – employee applicant appeal concerned remedy – employer submitted Commissioner erred in making findings of fact which did not reflect evidence, or incorrectly understood evidence – Commission noted public interest test under s.400 FW Act ‘a stringent one’ (Allied Mining Services) – decision of discretionary nature usually can only be successfully challenged on appeal if shown discretion not exercised correctly – Full Bench considered in public interest to grant permission to appeal due to importance of appeals’ subject matter and strength of grounds advanced – regarding finding dismissal ahrsh and unjust, Full Bench held in finding that no opportunity to respond was provided, Commissioner did not properly consider opportunities given to applicant during investigation process – reached conclusion inconsistent with evidence – approach inconsistent with authorities – Full Bench held no basis for finding – finding a significant error of fact – consequences of erroneous finding was that a factor which tended towards overall finding of fairness was considered a factor indicating unfairness, to the point combined with other considerations, of outweighing the finding of a valid reason for dismissal – Full Bench considered error meant that discretion vested in Commissioner miscarried and that appeal must be allowed and fairness of dismissal reconsidered – not necessary to determine other appeal grounds – permission to appeal granted – appeal allowed – decisions and order of Commissioner quashed – Full Bench to determine application based on evidence adduced before Commissioner – matter to be relisted. Appeal by BHP Coal P/L t/a BMA against decisions and order of Booth C of 7 May 2015, 18 August 2015 and 19 August 2015 [[2015] FWC 2724 and [2015] FWC 5699] and appeal by Schmidt against decisions and order of Booth C of 7 May 2015, 18 August 2015 and 19 August 2015 [[2015] FWC 2724 and [2015] FWC 5699] re:Schmidt
