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
February 26, 2016
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
