ENTERPRISE AGREEMENTS – better off overall test – ss.185, 193, 604 Fair Work Act 2009: reg 2.06 Fair Work Regulations 2009 – appeal – Full Bench – appeal related to decision with respect to application by Sea Swift for approval of the Sea Swift P/L Employee Enterprise Agreement (Agreement) – MUA, AMOUT and AIMPE appealed against two aspects of Commissioner’s decision – firstly, finding that the relevant modern award for purposes of the Better Off Overall Test (BOOT) was the Ports, Harbours and Enclosed Water Vessels Award 2010 (Ports Award), not the Seagoing Industry Award 2010 (Seagoing Award) – secondly, finding that employees genuinely agreed to Agreement in circumstances where senior management appointed as bargaining representative – Full Bench granted permission to appeal with respect to both grounds – BOOT grounds raised contentious issue of fundamental importance to proper application of the statutory test – grounds relating to bargaining representatives somewhat novel and circumstances unusual – clarification on provisional operation desirable – Full Bench noted determination of relevant award for BOOT purposes requires consideration of coverage clauses of respective instruments applied to relevant evidence – crucial evidence that of employer’s operations as industry awards – principles for interpreting award provisions laid out in Kucks v CSR Limited (Madgwick J) – Full Bench considered Sea Swift’s operations within substantive provision of Seagoing Award as operated vessels trading as cargo vessels which in the course of operation proceed to sea on voyages outside the limits of bays, harbours or rivers – found once vessels leave the coastline and travel up the coast, essentially at sea – presence of reefs, islands or Australian territorial waters beyond the routes takes around the coastline irrelevant – held substantive definition of industry covered by the Ports Award did not apply – once vessel leaves the coast it is by definition no longer in a port, harbour or body of water within the Australian coastline – held Seagoing Award the relevant award for application of BOOT and approval process – appeal allowed and decision with respect to the aspect quashed – in relation to genuine agreement ground, Full Bench held Commissioner’s decision discretionary – no appealable error established – appeal on this ground dismissed – matter remitted to Commissioner to finalise approval process. Appeal by Maritime Union of Australia, The and Ors Against decision of Simpson C of 30 October 2015 [[2015] FWC 6644] Re: Sea Swift P/L t/a Sea Swift and Ors
March 1, 2016
TERMINATION OF EMPLOYMENT – extension of time – permission to appeal – ss.394(3), 400 Fair Work Act 2009 – appellant employer sought permission to appeal decision of Commission at first instance – Commission granted employee extension of time for filing application for unfair dismissal remedy – Commission found employee had attempted to file application within 21 day limit by post – application failed to arrive to Commission – Commission records showed employee made subsequent enquiries and filed application by email – Commission considered matters required to be taken into account under s.394(3) of the Act – determined proper basis to grant extension of time – test under s.400 characterised as stringent one [Coal & Allied Mining Services] – 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] – Full Bench held satisfied open on evidence before Commission to find combination of factors existed which together amounted to exceptional circumstances – noted in circumstances of case may have been appropriate to hold hearing or conference to determine extension of time application however result not counter-intuitive and did not manifest any injustice – permission to appeal refused. Appeal by Ceres Agricultural Company P/L t/a Ceres Agricultural Company against decision of Drake SDP of 7 December 2015 [[2015] FWC 8451] Re: Regan
March 1, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394, 396 Fair Work Act 2009 – application for relief from unfair dismissal – previous jurisdiction decision of Commission determined applicant had lodged application within time and was a person protected from unfair dismissal – not contested that respondent is small business within meaning of Act – considered application of Small Business Fair Dismissal Code – respondent asserts applicant divulged company information to a friend who worked for a competitor and had deprived the respondent of an opportunity to gain a sales contract – facts contested – Pinawn T/A Rose Vi, Hair, Face, Body applied – Commission satisfied respondent believed on reasonable grounds that applicant had colluded with friend so as to assist friend to obtain a sales contract – respondents concern about collusive activity was a legitimate concern and was consistent with employment contract of applicant – Commission satisfied respondent undertook sufficient investigation of the matter so as to form a reasonable belief – issue of credibility of witnesses in proceedings resulted in Commission relying heavily on terms of email date 8 July 2015 – Commission did not reach definitive conclusions with respect to other allegations – found termination consistent with Small Business Fair Dismissal Code – application dismissed – order issued. Gillespie v Geographe Real Estate P/L t/a LJ Hooker Geographe Bay
March 1, 2016
RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – official of the National Union of Workers (NUW) refused entry to the respondent’s premises – respondent submitted NUW not entitled to represent its employees – NUW notified a right of entry dispute – respondent submitted Commission lacked jurisdiction to arbitrate dispute on the basis that dispute was about whether or not NUW had a right of entry, rather than a dispute about the operation of an existing right – Commission satisfied that application involved an exercise of arbitral and not judicial power [Police and Nurses Credit Society Limited], and that it had jurisdiction to deal with the dispute – respondent submitted that NUW’s rules did not permit it to enrol any of its employees as members – respondent argued the only eligibility rule to make specific mention of vegetables applied solely to Queensland, those involved in sorting and packing vegetables in other states fell outside the scope of eligibility – NUW rules previously considered by Commission – the term ‘goods and merchandise’ not to be read down to exclude vegetables [Devlaun P/L and ors] – Commission satisfied some employees of the respondent entitled to be members of the NUW – NUW permitted to enter respondent’s premises in compliance with and for the purposes provided for under the Act – order issued. National Union of Workers v Premium Fresh Tasmania P/L
March 1, 2016
TERMINATION OF EMPLOYMENT – contract for specified task – s.394 Fair Work Act 2009 – applicant elected as Indigenous Officer for the Curtin Student Guild – applicant was member of Guild Council – Guild Council alleged applicant was absent from three meetings without apologies – resolved to remove applicant from office – respondent submitted applicant was elected as office bearer not an employee and removal from office is governed by the Regulations – respondent argued the Commission does not have jurisdiction to determine applicant – no evidence of separate contract of employment – Commission found applicant was not an employee of the respondent – application dismissed. Yarran v Curtin Student Guild
February 29, 2016
Atwood Australian Waters Drilling Pty Ltd will sink the resources of the Fair Work Commission in Perth with 35 of its staff filing s.739 (dispute notices) on a single day. Commissioner Cloghan will view all applications at 2.30 pm. The full list is: Atwood Australian Waters Drilling Pty Ltd (Buckingham / Cadd / Cousins / Ditchmen / Evans / Forster / Fox / Gable-Almstrom / Greenwood / Hawkins / Holding / Hutchings / Jamieson / Joksovic / Kelly / Koch / Lawrance / Lindfield / Marechal / Moore / Munro / Murray / Nostas / Plumbley / Price / Quinn / Rudyard / Slattery / Sultana / Waghorn / Watt / White / Williams / Worth / Wrightson); Shaver Shop Pty Ltd (Gregory); Daromi Pty Ltd (Barron); Toll Holdings Ltd (Green); Speciality Fashion Group (Tamblyn); Salmon Street Services Pty Ltd (Purves); Department of Environment Land Water and Planning (Turner); Australia United Mining Limited (Zhang); Nova 5 / AJM (Hull); UCA Lifeline Newcastle & Hunter (Chapman); Southlakes Refuge Association Inc (Killick); AECOM Government Services Australia Pty Ltd (Hall); Beamish (Calvary Health Care Tasmania Limited); Baycorp Pty Ltd (Meek); Tharawal Local Aboriginal Land Council (Ely); Coles Group Supply Chain Pty Ltd (Collins/Roberts); Visy Packaging Pty Ltd (Higgins); Clyde & Co (King); B&H Security (Rudhar); Perfume Network NSW Pty Ltd (Abbasi/Kashif/Mushtaq/Riaz); Artis Group Pty Ltd (Welsby); The Trustee for Red Paprika One Unit Trust (Widmer); Rei (Teng); Grenfell Street Hospitality Pty Ltd (Crozier); SMSF Audits Pty Ltd (Cooney); The Trustee for CNC Family Trust (Claxton); Bailey Civil Contractors Pty Ltd (Logan); Quality Bakers Australia Pty Limited (Signall); The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Becirbasic); Global Intellectual Group (Costanzo); Pacific National Queensland Coal Pty Ltd (Feodoroff); Decon Tumkey Communication & Power Solutions Pty Ltd as trustee for TKS Trust (Soso); Baycorp Pty Ltd (Meek); Greatley Appreciated Pty Ltd (Brown); and ISS Security Services Pty Ltd (Ebba).
February 26, 2016
The Department of Environment, Land, Water and Planning is facing a trio of staff members (s.372) in the Fair Work Commission in Melbourne today. The full hearing list includes: Speciality Fashion Group (Tamblyn), Nardy House (Perry), Ajilon Australia Pty Ltd (Weaver), Commonwealth bank of Australia (Haralambous), CRANES Community Support Programs Ltd (Reilly), Shaver Shop Pty Ltd (Gregory), M & N Plant Mechanic Pty Ltd (Cefai), Daromi Pty Ltd (Barron), Gumala Aboriginal Corporation (Carrington), Mimi Family Daycare Service Pty Ltd (Diaz Gubern), Compass Group (Australia) Pty Ltd (Morin), Simplot Australia Pty Ltd (Johnson/Martin/Oates), Pacific National Queensland Coal Pty Ltd (Feodoroff), Retep Nominees Pty Ltd (Ikking), Ozcare (Mazi), PTS Traffic Management Pty Ltd (Larnach), Anglo Coal (Dawson Services) Pty Ltd, Westpac Banking Corporation (Bregenzer), Sizetrans Pty Ltd (Krupicka), Blairlogie Living & Learning Inc. (Reilly), Department of Environment land Water and Planning (Gigliotti/ O’Reilly/Paxton/Turner), Salmon Street Services Pty Ltd (Purves), Australia United Mining Limited (Zhang).
February 26, 2016
TERMINATION OF EMPLOYMENT – remedy – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent alleged applicant engaged in bullying behaviour and advised staff members to look elsewhere for work – respondent failed to attend hearing or provide written submissions – Commission held applicant did not engage in conduct alleged against her – applicant was not notified of reasons for dismissal nor provided with an opportunity to respond – Commission held no valid reason for dismissal – dismissal harsh, unjust and unreasonable – reinstatement inappropriate due to loss of trust and confidence – compensation to be assessed per methodology in Bowden – one week’s wages in lieu of notice deducted – applicant’s medical condition likely to have affected earning capacity – Commission considered amount neither clearly excessive or inadequate [Sprigg] – compensation of $22,069.32 awarded – order issued. Lockwood v Menai Variety Discounts P/L t/a The Base Warehouse
