Enterprise agreements – termination of agreement – ss.225, 226 Fair Work Act 2009 – application by RCR Resolve FM P/L t/a RCR Resolve FM to terminate agreement after its nominal expiry date – nominal expiry date 31 May 2015 – Union of Christmas Island Workers (UCIW) opposed termination – no employees employed under agreement since 1 March 2014 – transfer of business to Serco Immigration Services P/L (Serco) on 28 February 2014 – employees employment with Serco regulated in part by agreement – UCIW and Serco had not concluded replacement enterprise agreement – applicant wished to ‘tie up’ loose ends – UCIW submitted agreement a transferable instrument and applied to relevant Serco employees – termination would provoke uncertainty for employees – Commission considered likely effect of termination on applicant and employees – satisfied not appropriate to terminate agreement – considered whether termination would be contrary to the public interest – on balance, with regard for all unusual circumstances, Commission satisfied contrary to public interest to terminate agreement – application dismissed. Union of Christmas Island Workers and Resolve FM Enterprise Agreement 2011.
February 5, 2016
Enterprise agreements – termination of agreement – ss.225, 226 Fair Work Act 2009 – application by Boom Logistics Ltd for termination of an enterprise agreement after its nominal expiry date – nominal expiry date was 1 September 2013 – CFMEU is the employee organisation covered by agreement – parties have been seeking to negotiate a replacement agreement since October 2013 but have not been successful – employees rejected a replacement agreement on 1 July 2015 – application for termination opposed by CFMEU – Aurizon considered – whether termination of the agreement was an appropriate response to the market difficulties in all the circumstances of the case – Commission not satisfied that it is not contrary to the public interest to terminate the agreement – termination would shift the balance in bargaining when the evidence shows that the agreement does not place Boom in a position of disadvantage in the market place – not satisfied that the requirements of s.226(a) and (b) of the FW Act have been established – termination of the agreement is not appropriate in all of the circumstances – application dismissed. Boom Logistics Ltd Hunter Valley Enterprise Agreement 2013.
February 5, 2016
Termination of employment – extension of time – s.394 Fair Work Act 2009 – application lodged 45 days late – following dismissal applicant claimed redundancy payments and sought entitlements through Fair Work Ombudsman (FWO) prior to filing for unfair dismissal – applicant submitted the respondent’s delay in denying his claim for redundancy pay contributed to his late lodgement – Commission held the applicant was aware of the denial of his claim for redundancy pay on 22 October when his application would have been within time – applicant also did not file until 10 days following the FWO advising it was not taking action – Commission not satisfied that a reasonable explanation provided for the whole of the delay – that applicant sought to resolve his claim for redundancy pay and entitlements prior to lodgement is not unusual – application dismissed. Green v Lanotec Australia P/L t/a Lanotec.
February 4, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as ABA’s Training Manager – applicant terminated for engaging socially with a student at a private function outside normal business hours, that was unrelated to their education, and escorted a student to his private residence – applicant submitted reasons for termination did not appear in his employment contract and specifically did not appear under reasons for summary termination, adding that policies were not contractual in nature – applicant further submitted he had never been provided with evidence of the person who made the allegations against him – respondent submitted actions were not unduly harsh because the outcome was proportionate to the gravity of the applicant’s misconduct and senior position and influence within the company – respondent further submitted it risked reputation, viability and/or profitability of ABA’s business, including carrying with it the prospect of ABA losing its license to operate under both the National Vocational Education and Training Regulator Act 2011 and the ACT’s working with vulnerable people legislation – Rode’s decision considered – Commission found applicant’s actions fell within the definition of serious misconduct – as set out in ABA’s Workplace Behaviours Employee handbook – valid reason for dismissal – application dismissed. Farhnhill v Australian Business Academy P/L
February 4, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act – application to deal with a dispute under the Bureau of Meteorology Enterprise Agreement 2011-2014 – employee sought correct calculation of salary for superannuation purposes – whether rent-free housing received by employee should be included in calculation of salary – employee entitled to rent-free housing pursuant to clause 29.4(a) of agreement – Superannuation Act 1990 and Public Sector Superannuation Scheme Trust Deed considered – whether rent-free housing provided to employee is a type of allowance referred to in Reg 5(e) of the Superannuation (CSS) Salary Regulations 1978 – held employee received rent-free housing because of the particular office he holds – agreement does not provide Commission with power to determine correct calculation of salary for superannuation purposes – determination not issued. Hegarty v Commonwealth of Australia (acting through and represented by the Bureau of Meteorology)
February 4, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – employer seeking to appeal first instance decision that termination of employment harsh, unjust or unreasonable – employee dismissed for serious misconduct – investigated for making repeated offensive and inappropriate remarks to another employee – permission to appeal granted on 25 August 2015 – employer submitted Commission erred in finding inappropriate and unfair for employer to have regard to other allegations in determining to dismiss employee – gave no reasons regarding decision to order reinstatement – no power to make orders that employee be given final warning – Full Bench agreed first instance decision attended by significant appealable error – errors of kind sufficiently significant to require decision to be quashed – appeal upheld and matter remitted for determination. Appeal by Toll Holdings Limited t/a Toll Transport P/L t/a Toll Priority against decision of Riordan C of 17 June 2015 [[2015] FWC 3830] Re: Johnpulle
February 4, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.437, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance protected action ballot order made – grounds for appeal whether conduct outlined in question to be put to employees who were to be balloted was industrial action – question related to employees delaying response to and/or actioning emails, and an ‘out of office’ email message which referred to protected industrial action being the reason for the delay in response – Full Bench held first action of delay in the performance of work was industrial action – held second action sending of ‘out of office’ email was a communication of first action to persons affected not industrial action – appeal raised questions as to nature of industrial action – permission to appeal granted – appeal dismissed. Appeal by Independent Education Union of Australia against decision in transcript of Booth C of 23 December 2015 Re: All Hallows’ School Limited t/a All Hallows’ School and Ors
February 4, 2016
REGISTERED ORGANISATIONS – elections – ss.186, 189, 323 Fair Work (Registered Organisations) Act 2009 – s.604 Fair Work Act 2009 – appeal – Full bench – appeal against Delegate’s decision to revoke exemption enabling CFMEU to conduct union elections – exemption revoked due to past conduct of elections – whether exemption granted to conduct elections internally should have been revoked – whether delegate satisfied compliant elections will be conducted in future – permission to appeal granted because of subject matter and novelty of issues – proper application of statutory tests – procedural fairness – Full bench not persuaded procedure involved appealable error – each ground of appeal lacked merit – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union-Mining and Energy Division and Anor against decision of Delegate of General Manager of 30 October 2015 [[2015] FWCD 7109]
