GENERAL PROTECTIONS – extension of time – amendment of application -ss.365, 586 Fair Work Act 2009 – application to deal with contraventions involving dismissal made by AWU on behalf of six members – lodged five days outside statutory timeframe – application to amend general protections application by addition of further respondents – employees engaged by MPC Gas under the Murphy Pipe and Civil Gas QCLNC Upstream Project Works redundant – MPC Operations Labour employed employees – employees now subject to Old Employee Collective Enterprise Agreement 2014 – AWU alleged work undertaken by employees work previously covered by Murphy Pipe and Civil Gas QCLNC Upstream Project Works Enterprise Agreement 2011 – AWU alleged adverse action against employees because employees had a workplace right being entitlement to benefit of Murphy Pipe and Civil Gas QCLNC Upstream Project Works Enterprise Agrement 2011 – AWU submitted MPC Operations Labour was involved in contravention of s.340(1) – whether exceptional circumstances to extend time – AWU relied on reason for delay being a representative error – general protections application indicated AWU applicant represented by Maurice Blackburn Lawyers – representative error may constitute exceptional circumstances and be sufficient reason to extend time [Interstate Transport P/L] Commission found AWU was not acting as a representative when general protections application made – employees did not provide instructions to AWU to make application – Commission did not accept to exercise discretion to extend time where AWU was the applicant – whether Commission has power under s.586 to amend general protections application by adding MPC Construction as a Respondent – AWU asserted being unaware of involvement of MPC Constructions when application was made – must be treated as a fresh application against the Company – application made outside of time – Commission accepted company structures under MPC Construction operates is complex – Commission not satisfied exceptional circumstances existed to allow exercise of discretion to extend time for making general protections application – application dismissed – application to amend general protections application also dismissed. The Australian Workers’ Union v Murphy Pipe & Civil Gas P/L and Ors
March 2, 2016
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Credit Assessment Officer – applicant also sole director of mortgage services company – Australian Securities and Investments Commission (ASIC) banned applicant from engaging in ‘credit activities’ for period of five years – ASIC based decision on applicant submitting two false and misleading annual compliance certificates – respondent submitted applicant unable to perform inherent requirements of role and failed to seek approval for outside business interest – lost confidence in applicant as she was not honest and forthright during investigations – whether applicant able to perform things essential to her position considered – it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position [Boag and Son] – an inability to perform inherent requirements of position will generally provide a valid reason for dismissal but will not invariably be so … dismissal based on an incapacity to perform inherent requirements of position may be valid reason if employee has capacity to perform inherent requirements of job [Qantas Airways Ltd v Christie] – Commission found effect of banning order meant applicant could not perform inherent requirements of position – also found applicant’s failure to be candid and honest, together with failure to notify respondent, were sufficient reasons that respondent could no longer have trust and confidence in her as employee – Commission found applicant not unfairly dismissed – application dismissed. Callychum v Australia and New Zealand Banking Group t/a ANZ
March 2, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute regarding income protection insurance under Kentz (Australia) P/L Ichtys Onshore Construction Greenfields Agreement – CEPU claimed Kentz were not paying income protection insurance to approved insurer within meaning of the clause – Kentz made arrangements with alternative insurer instead of insurers named in agreement – interpretation of clause and whether Kentz’s arrangements are compliant – Kentz referenced s.12 Insurance Act 1973 (Cth) that enables Australian Prudential Regulatory Authority to receive applications from bodies corporate – question of the meaning of phrase approved insurer – interpretation of enterprise agreement requires construction of words of the instrument [Golden Cockerel] – necessary to determine whether an agreement has a plain meaning or contains ambiguity – regard has to be made to the whole of the term and not only phrase ‘approved insurer’ – regard may be had to evidence of surrounding circumstances in determining whether an ambiguity exists – task of interpreting an agreement does not involve rewriting agreement to achieve fair or just outcome – plain meaning of clause requires Kentz to make income protection arrangements with an approved insurer – list is non-restrictive – Commission concluded insufficient material to express concluded view if a party desires to depart from named insurers listed. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz (Australia) P/L
March 2, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute arising under the Kentz (Australia) P/L Ichthys Onshore Construction Greenfields Agreement – dispute over the permissibility for a notice of termination to run concurrently with a period of Rest and Recreation (R&R) provided for in the agreement – Commission satisfied it has jurisdiction to deal with dispute – CEPU submitted that an employer cannot give notice concurrent with other forms of leave, and characterised R&R as an entitlement to be absent – further submitted that as R&R provides for time away from the workplace for a designated reason while notice of termination is to enable alternative employment to be sought, allowing these to run concurrently vitiates the reason for notice or the reason for absence – submitted by Kentz that R&R is not comparable to other periods of leave as it is a ‘creature of the parties agreement’ and is a separate part of the agreement to that dealing with leave – also submitted by Kentz that clause 8.6(c) does not prohibit notice being given during, or to coincide with, a period of R&R – no definition in agreement of ‘rest and recreation’ as it is only defined in relation to rosters – Commission satisfied that in the absence of any construction or purpose of R&R to the contrary. It is a form of regulated and approved leave – held that in providing payment in lieu of notice under the agreement, notice cannot be given such that it runs concurrent with a period of R&R. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz (Australia) P/L
March 1, 2016
Twenty-five unfair dismissal cases will be heard today by Fair Work Commissioners. The full list is: ADSE Pty Ltd (Karaklic), Wambo Open Cut Pty Ltd (Garland), AECOM Government Services Australia Pty Ltd (Hall), Calvary Health Care Tasmania Limited (Beamish), Merlin Tyres Pty Ltd (Cooper), AGL Loy Yang Pty Ltd (Wright), BNR Logistics Pty Ltd (Leota), CUB Pty Ltd (Sayers), Geelong Harley-Davidson (Wall), The Hutchins School (Anders), Evolve Training Systems Pty Ltd (Weston), SMSF Audits Pty Ltd (Cooney), Bailey Civil Contractors Pty Ltd (Logan), Sinclair Recruitment (Remfrey), JBS Australia Pty Limited & Labour Solutions Australia Pty Ltd (Muhammad), Menzies Jewellers (Gaszner), The Trustee for Sogal Trust (Gupta), Bupa Care Services Pty Limited (Cox), ACE Insurance Limited (Sweeney), Prosegur Australia Pty Ltd (Kirk), Ivana’s Pty Ltd (Gunnery), Perfume Network NSW Pty Ltd (Abbasi/Kashif/Mushtaq/Riaz) and Pactum Australia Pty Ltd (Tamati).
March 1, 2016
TERMINATION OF EMPLOYMENT – national system employer – ss.365, 388 Fair Work Act 2009 – application to deal with general protections contravention involving dismissal – respondent submitted not a national system employer – submitted was a partnership of five natural persons and two corporations, and corporations were not engaged in any trading or financial activities in their own right and were not formed for purpose of either – respondent highlighted corporations were expressly excluded by Partnership Deed from taking any part in management or operations of respondent or having power to bind partnership – applicant submitted, inter alia, that a finding that some but not all of partners were engaged in trade would be inconsistent with Partnerships Act 1985, and that restriction on power of corporate partners to bind partnership post-dated applicant’s employment – whether or not corporate partner is a trading corporation is critical in determining whether or not partnership is a national system employer [Goldendays] – Commission satisfied material indicated corporate partners derive income either exclusively or almost entirely from distribution of respondent’s profits, and Partnership Deed precludes corporate partners from taking part in management operations or having power to bind partnership – no evidence to suggest trading even a peripheral activity for either corporate partner or that intended purposed of their corporate partner was trade – Commission not satisfied applicant’s reading of Partnerships Act 1985 correct – Commission satisfied corporate partners not trading corporations and that respondent not a constitutional corporation and therefore not a national system employer – application dismissed. Greville v KM Elsegood Smith & BK Elsegood & DK Elsegood & DS Elsegood & SM Elsegood & Elsegood Holdings P/L & Falconcrest Holdings P/L t/a Combined Metal Industries
March 1, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application fro relief from unfair dismissal – applicant employed as Environmental Officer – dismissed for unsatisfactory work performance – failure to follow water quality monitoring and reporting procedures – request fro suppression order refused [Justin Corfield] – Commission found respondent had valid reason to terminate applicant’s employment – found dismissal unfair – respondent’s acceptance of her performance over a significant period of time means it was unfair to terminate her employment without having provided her with clear notice that her performance was such that her employment was at risk – her supervisor was not unaware of the procedures he needed to follow, he simply dis not follow them – not satisfied reinstatement appropriate – compensation of $13,884.62, less tax according to law, and $1,319.04 superannuation ordered. Wallis v Savannah Nickel Mines P/L t/a Panoramic Resources
March 1, 2016
TERMINATION OF EMPLOYMENT – small business employer – minimum employment record – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection raised by respondent on basis small business and dismissal consistent with Small Business Fair Dismissal Code – held: employer was small business – minimum employment period not served – not protected from unfair dismissal – application dismissed. Pink v Alavi Group Trust t/a Como Compounding Pharmacy
