TERMINATION OF EMPLOYMENT – contractor or employee – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision at first instance that respondent was an employee – Full Bench found Commissioner properly considered the nature of the relationship at the relevant time and made findings which led to conclusion there was jurisdiction to deal with the matter – not satisfied decision involved any error of principle – not persuaded appeal gave rise to public interest considerations – permission to appeal refused. Appeal by JG King Homes against decision and order of Wilson C of 18 September 2015 [[2015] FWC 6352] Re: Tyler
February 11, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance that appellant’s dismissal was not unfair – appellant sought permission to appeal – contended that Commissioner failed to properly consider s.387(h) of the FW Act and failed to consider number of relevant factors in relation to whether dismissal was harsh, unjust or unreasonable – test whether in ‘public interest’ to grant permission is ‘a stringent one’ and ‘involves a broad value judgment’ [Coal & Allied] – rarely appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, an appeal cannot succeed in the absence of appealable error [Wan] – Full Bench found appellant had not demonstrated any error in the decision or any basis of public interest – Commissioner’s conclusion was not unreasonable or plainly unjust – found no error in approach of Commissioner – Full Bench held that the findings were made on the evidence and that no other factors considered suggested that the appellant’s dismissal was harsh, unjust or unreasonable – factors raised by appellant did not require additional consideration – permission to appeal refused. Appeal by Walpola against decision and order of Roe C of 2 November 2015 [[2015] FWC 7554] and [PR573563] Re: Transdev Melbourne P/L t/a Transdev Melbourne
February 11, 2016
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by CFMEU for right of entry permit for Mr Merkx – application opposed by Director of Fair Work Building Industry Inspectorate – dispute whether Mr Merks received appropriate training regarding right of entry requirements – Mr Merkx previously engaged in unlawful industrial action in DFWBII v Merkx – Mr Merkx currently one named respondent in application filed in Federal Court regarding breaches of ss.348 and 355 of FW Act – whether Mr Merkx a fit and proper person to hold entry permit – Commission satisfied ACTU online training course to be an appropriate training provided to Mr Merkx [CEPU] – Mr Merkx did not fully comprehend he was contravening FW Act when he participated in unlawful industrial action – unable to conclude Mr Merkx not fit and proper person due to low penalty imposed in DFWBII v Merkx – application in Federal Court cannot be given any weight in consideration of CFMEU’s application – application contains allegations only – Commission satisfied Mr Merx a fit and proper person to hold an entry permit – application granted. Construction, Forestry, Mining and Energy Union
February 11, 2016
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – s.235 Fair Work (Registered Organisations) Act 2009 – appeal -CFMEU lodged appeal against decision of General Manager for Fair Work Building Construction to inspect membership records – under s.235(1) of Registered Organisations Act the General Manager can grant access to records – CFMEU applied for decision to be stayed pending the appeal – Commission satisfied CFMEU’s case was arguable with reasonable prospects of success – balance of convenience favoured grant of stay – Commission granted stay application subject to there being an expedited hearing of the appeal. Appeal by Construction, Forestry, Mining and Energy Union against decision of General Manager of 15 January 2016
February 11, 2016
INDUSTRIAL ACTION – suspension of protected industrial action – cooling off – ss.413, 425 Fair Work Act 2009 – application by Patrick Stevedores to suspend protected industrial action by employee members of MUA – MUA submitted only current industrial action relevant in considering appropriateness of suspension and planned 24 hour stoppages not relevant – Commission accepted that operation of s.425 of FW Act premised on industrial action that is being engaged in, as distinct from threatened, impending or probable – whether being engaged in a question of fact – industrial action in the form of bans had occurred and further bans occurring – stoppages imminent at date of hearing – Commission satisfied bans in place provided the jurisdictional trigger for exercise of Commission’s powers – held s.425 needed to be construed in context of FW Act, in particular the effect of s.413(7) that no protected industrial action can occur if suspension order in operation – appropriateness of suspension under s.425 should be considered in light of the full consequences of suspension – interpreting clause more narrowly an artificial approach ignoring practical realities – appropriate to have regard to industrial action happening and impending when assessing appropriateness of suspension – concept of an order being limited to specific action and impliedly permitting other future protected action inconsistent with scheme of FW Act – Commission noted Booth DP’s involvement in facilitating discussions regarded as useful by parties – noted industrial action appeared to have escalated rapidly while Booth DP on leave – considered compromise on some issues likely – involvement of Commission likely to be of assistance – Commission had regard to the nature of the industry and the importance of Patrick to important aspect of economy – disruption of services to third parties, combined with other circumstances a relevant contextual consideration to the question of benefit to the parties in resolving matters in dispute – satisfied suspension of protection industrial action would assist bargaining representatives in resolving matters in dispute – considered suspension positively consistent with public interest and object of FW Act – Commission satisfied suspension appropriate – suspension for 35 days would enable detailed consideration before Booth DP and not deprive parties of their options for the future. Patrick Stevedores Holdings P/L v The Maritime Union of Australia
February 11, 2016
CASE PROCEDURES – review of external decision – r.58 Fair Work Commission Rules 2013 – sch.3 Offshore Petroleum and Greenhouse Gas Storage Act 2006 – application for review of decision of Inspector of NOPSEMA to issue prohibition notice (PN 614) – Technip operates the Wellservicer facility (a diving support vessel) – carries out saturation diving activities – in the event of an emergency on the Wellservicer that requires hyperbaric evacuation, once divers are safely secured in the Self Propelled Hyperbaric Life Boat (SPHL) stored on board the Wellservicer, the SPHL is launched and joined by a Hyperbaric Support Rescue Vessel (HSRV) that is located within two hours of diving operations at all times – NOPSEMA Inspector satisfied on reasonable grounds that an activity may occur at the facility that, if it occurred, would involve an immediate threat to the health or safety of a person – saturation diving without hyperbaric boat rescue capability at location for a period of 48 hours – application to Commission made on grounds of legal error and whether reasonable grounds for satisfaction – whether prohibition notice reasonably necessary – requirement that satisfaction be based on reasonable grounds requires an objective assessment of all relevant circumstances – Commission found that PN 614 was not based on satisfaction on reasonable grounds, that the separation of the Wellservicer and HSRV for 48 hours would involve an immediate threat to the health or safety of a person – issue of prohibition notice not based on satisfaction on reasonable grounds that it was reasonably necessary to issue the notice in order to remove the threat – appeal allowed – prohibition notice revoked. Technip Oceania P/L v National Offshore Petroleum Safety and Environmental Management Authority t/a NOPSEMA
February 11, 2016
CASE PROCEDURES – evidence – production of documents – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – on 17 April 2015 applicant filed a notice of appeal against a decision issued by Commissioner Bissett [[2015] FWC 2563] – appeal concerned the decision to deny the applicant access to a report prepared by DGHR Services and several associated documents (together referred to as the Documents) on the basis that the Documents were not relevant to his unfair dismissal application – respondent objected to the release of the Documents claiming legal professional privilege (privilege) – appeal heard by a Full Bench on 17 June 2015 – Full Bench granted applicant permission to appeal insofar as his appeal concerned the Documents, upheld his appeal regarding the Documents, quashed the relevant aspects of the Commissioner’s decision and remitted the respondent’s claim of privilege in relation to the Documents to the Commission for determination [[2015] FWCFB 3995] – Commission determined that the Documents, other than the copy of the Federal Court of Australia’s ‘Practice Note CM7 – Expert Witnesses in Proceedings in the Federal Court of Australia’ attached to the email of 5 June 2014 and the documents dated 27 and 28 February 2015 both of which were considered to fall outside the scope of the Order to produce issued by the Commission on 11 March 2015, were protected by privilege and that privilege has not been waived in respect of the remaining documents – Practice Note CM7 can be inspected by the applicant or his representative upon application. Kirkman v DP World Melbourne Limited
February 11, 2016
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance dismissing application for extension of time – the application was filed two days out of time – applicant was aware her application required to be lodged within 21 days – applicant informed United Voice 17 days after dismissal – union did not act until two days beyond time limit – case was transferred from one union official to another – public interest test discretionary involving broad value judgement [GlaxoSmithKline] – error not a sufficient basis to grant permission – Full Bench found there was a 17 day period where applicant did nothing to pursue her unfair dismissal application – the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period [Shaw] – representative error did not provide an inviolable reason amounting to exceptional circumstances – Full Bench concluded an arguable case of appealable error had not been made out – permission to appeal refused. Appeal by Diotti against decision and order of O’Callaghan SDP of 10 November 2015 [[2015] FWC 7659] and [PR573703] Re: Lenswood Cold Stores Co-op Society t/a Lenswood Organic
