ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 of the Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed application as two Alternative Payment Methods (APMs) were not incorporated into the 2014 agreement therefore, respondent was entitled to determine employee’s hourly rate pursuant to agreement – appellant appealed Commission’s decision on basis that APMs were incorporated by the 2014 Agreement – appellant argued that APMS were a custom and practice within the meaning of clause 5 of 2014 Agreement – Full Bench held APMs not a ‘custom and practice’ and did not form part of the 2014 Agreement – Full Bench held Commission did not fall into error at first instance – Appeal not granted – matter dismissed. Appeal by Transport Workers’ Union of Australia v Linfox Australia P/L against decision [2015] FWC 8325 of Roberts C on 4 December 2015 Re: Linfox Australia P/L
February 26, 2016
INDUSTRIAL ACTION – suspension of protected industrial action – cooling off – ss.425, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision and order to suspend protected industrial action engaged by members of The Maritime Union of Australia (MUA) – MUA submitted order invalid as it did not specify particular industrial action which was suspended – MUA further submitted suspension of protected industrial action was inappropriate in circumstances – Full Bench held order to suspend may extend to any protected industrial action authorised to be taken by protected action ballot [NTEU] – approach consistent with purpose of s.425 of FW Act to allow ‘cooling off’ period in order to advance prospects of resolving matters in issue – factual errors contained in decision at first instance vitiate conclusion that suspension would be appropriate – characterisation of correspondence between parties as hostile incorrect – parties had agreed for further negotiations to occur – no cancellation by Patrick of any meetings nor did it harden its position with respect to negotiations – miscarriage of discretion in assessing appropriateness of suspension of protected industrial action – permission to appeal granted – appeal upheld – decision and order quashed – application listed for further telephone directions. Appeal by The Maritime Union of Australia against decision and order of Watson VP of 22 January 2016 [[2016] FWC 464] and [PR576370] Re: Patrick Stevedores Holdings P/L
February 26, 2016
TRANSFER OF BUSINESS – enterprise agreement – s.318 Fair Work Act 2009 – application for an order relating to instruments covering new employer and transferring employees – Commission had previously declined to exercise discretion to make an order under s.318(1) of FW Act in relation to Transferring Employees covered by the Hunter Water Australia P/L General Employees’ Agreement in [2015] FWC 7916 – further application lodged by ALS and additional undertakings offered to address concerns identified in Commission’s earlier decision – Commission considered mandatory factors in s.318(3) of FW Act – further evidence provided demonstrated that 18 of 21 Transferring Employees agreed with proposed order – satisfied that areas of disadvantage for Transferring Employees relating to ordinary hours of work and overtime addressed in new undertakings – having regard to new undertakings and those previously provided, Commission satisfied that Transferring Employees would not be disadvantaged by order sought – satisfied making order in the public interest to make order – appropriate to exercise discretion to make an order – order issued. Australian Laboratory Services P/L
February 26, 2016
TERMINATION OF EMPLOYMENT – other termination proceedings – application for an adjournment – ss.381, 394 Fair Work Act 2009 – application for unfair dismissal remedy both partiers submit their written submissions applicant requested adjournment respondent objected to the request and requested reasons for Commission’s decision to grant the adjournment – applicant dismissed on the grounds of serious misconduct – applicant representative requested matter to be adjourned due to pending criminal hearing at the State court – Commission found criminal matter should be heard before the unfair dismissal matter – Commission granted the adjournment to balance justice between the parties. Boyce v Scott Corporation Limited t/a Bulktrans
February 26, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as Construction Supervisor – in early 2015 he was moved to position of Maintenance QA Supervisor – salary reduced – applicant had health issues – resigned but claimed he was forced to do so because of the conduct engaged in by respondent – respondent raised jurisdictional objections – applicant was not ‘dismissed’ – whether constructive dismissal [Fingal Glen] – Commission not satisfied respondent embarked on a deliberate strategy, or ‘course of conduct,’ to cause applicant to resign – found medical issues led to resignation – not satisfied applicant was a person who resigned from his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his employer – applicant had not been ‘dismissed’ – application dismissed. Ardley v Bendigo Urban Investments t/a G.J. Gardner Homes Bendigo
February 26, 2016
CASE PROCEDURES – application dismissed on FWC’s own initiative – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected to the application on the basis that the business is a small business and the minimum employment period not meet – both parties failed to comply with the directions and failed to attend hearing – Commission made several attempts to contact applicant – no correspondence received by the applicant – Commission dismissed application based on applicant’s failure to prosecute application and that application had no reasonable prospects of success – order issued. Moffitt v Hicube Logistics P/L
February 26, 2016
ENTERPRISE AGREEMENTS – approval – ss.183, 185 Fair Work Act 2009 – application for approval of the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015 – interim decision [[2015] FWCA 8129] issued to approve agreement – this decision addresses whether NTEU covered by agreement – 2015 agreement ‘rolled-over’ the Victorian TAFE Teaching Multi-Business Agreement 2009 -2009 agreement and 2015 agreement do not further define the scope of either agreement – determination of ‘teacher’ and ‘senior educator’ classifications in 2015 agreement considered – whether NTEU rules provide for coverage of any of the work covered by Agreement – Commission accepted NTEU argument that NTEU rules should be considered as cumulative – drafting technique used in NTEU rules are not unusual drafting technique for union rules – construction principles in Technisearch considered for scope of eligibility for membership of NTEU rules – satisfied that ‘teaching’ and ‘senior educator’ come within class of work that forms substantial part of positions – Commission found NTEU entitled to represent the industrial interests of employees in relation to work performed under the 2015 agreement – Commission to determine whether during period of bargaining the named members of NTEU performed work covered by the 2015 agreement and if NTEU was entitled to represent their industrial interests – Commission satisfied NTEU did participate in bargaining for 2015 agreement – not unusual in a workplace context for employees to move in and out of coverage of enterprise agreement depending on work performed – Commission concluded that NTEU was a bargaining representative and is covered by the agreement. Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015
February 25, 2016
The Fair Work Commission has 22 unfair dismissal claimants to get through by dusk. The fill list for today’s hearings is: Macquarie Ice Rink (Eisler), Pambula Merimbula Golf Club Limited (Libbis), Leighton Contractor Pty Limited (Sammut), G A Miller Metal Industries Pty Ltd (Xie), Tharawal Local Aboriginal Land Council (Ely), Davell Products (Davies), pacific National (NSW) Pty Ltd (Rich), David Hartree Design Associates Pty Ltd (Blythe), Mimi Family Daycare Service Pty Ltd (Diaz Gubern), Tasmanian Country Club Casino Proprietary Limited (Burnie), The Trustee for the Parish Family Trust (Hanlin), St Vincent’s Hospital Melbourne (Steele), O’Toole Electrical (Morris), The Lynbrook Hotel (Von Hagt), Qantas Cabin Crew Australia Pty Ltd (Smith), Bunnings Warehouse (Jones), OM Holdings Limited (Kiernan), Ferris 60 Pty Ltd (Broughton), Dust-A-Side Australia Pty Ltd (Cowley), Tony Shang Pty Ltd (Byrne), Grenfell Street Hospitality Pty Ltd (Crozier), Morris Corporation Ltd (Reposar).
