RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – application by MUA to deal with right of entry dispute – interim decision issued by Commission – following interim decision Commission satisfied exclusions contained in MUA’s Registered Rules not relevant for purpose of current application – whether MUA entitled to represent industrial interests of non-management employees on Hydro Deck – whether relevant employees ‘waterside workers’ – Commission held eligibility rules should be liberally construed and ‘waterside workers’ to be given ordinary meaning [ETU] – non-management employees held to have engaged in loading and unloading ships considered to be ‘waterside workers’ within ordinary meaning – whether Commission invested with power to make declaration that MUA entitled to represent interests of employees on Hydro Deck – respondent submitted Commission did not have jurisdiction to deal with application as it did not deal with dispute regarding operation of Part 3-4 of FW Act – respondent contended s.505 of operation of FW Act limited to how right of entry may be exercised not whether right exists – Commission held it was entitled to ascertain what rights and obligations should exist [PNCS v FSU] – Commission not exercising judicial powers in determining dispute – non-management employees on Hydro Deck held to be waterside workers – MUA entitled to represent industrial interests – permit holder of MUA meets test in s.484(b) – order to be issued. Maritime Union of Australia v JKC Australia LNG P/L
February 4, 2016
GENERAL PROTECTIONS – workplace rights – arbitration – s.365 Fair Work Act 2009 – application to deal with a general protections dismissal dispute by consent arbitration – respondent is a small community based child care centre – applicant was dismissed from part-time employment – conference unsuccessful – applicant submitted that her dismissal was because she had exercised a workplace right when she made complaints about her manager and a committee member in the course of allegations being put to her about her conduct – applicant bears the onus of establishing that she had exercised a workplace right at the relevant time or a protection, and that adverse action was taken against her [Kee] – Devonshire and Hodkinson considered – Commission found applicant had exercised a workplace right – whether respondent took adverse action – evident supported that adverse action was taken against the applicant in the form of a dismissal, it did not support that she was injured in her employment with the decision to conduct a performance review of her – applicant was not treated differently from any other employee – found she was not injured in her employment – found respondent did not take the adverse action ‘because of a prohibited reason, or reasons which included that reason’ – unable to find that applicant was dismissed because of a prohibited reason, or reasons which included that reason – application dismissed. Sultana v Thomastown Child Care Centre Inc
February 4, 2016
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – application for relief of unfair dismissal remedy – respondent objected to application on basis that applicant earned more than the high income threshold – applicant not covered by modern award or enterprise agreement – annual rate of earnings was at least $119,200 – consideration of the value of motor vehicles provided to the applicant – value of the private use of the vehicle can be included in the annual rate of earnings [Rofin Australia] – applicant assessed the private use of the vehicles at $8,749 – respondent submitted alternate calculation totalling $20,645.04 – applicant did not keep log book – Commission adopted calculations provided by respondent – found applicant’s annual remuneration was more than the high income threshold – not satisfied applicant protected from unfair dismissal – application dismissed. Davis v PT Western Plains P/L t/a Western Plains Automotive
February 4, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute regarding compliance with the Victorian Building Authority Agreement 2013 – dispute over decision by the Victorian Building Authority (VBA) to declare the applicant’s position surplus to requirements and then terminate her employment for reason of redundancy – clause 7 (Implementation of Change), clause 11.5 (Redundancy), and clause 21 (disputes and Grievances) relevant – applicant’s contention was that the VBA had insufficient or no basis to make her redundant because it did not adequately consult with her about its proposed organisational changes, did not apply Public Sector Workplace Relations policies and did not follow applicable dispute resolution procedures in dealing with grievance – Commission not persuaded VBA did not comply with obligations – application dismissed. Victorian Building Authority Agreement 2013
February 4, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerning eligibility for excess travel time entitlements under clause F2.12 and F.2.13 of the Defence Enterprise Collective Agreement 2012-2014 – applicant claimed he was not compensated appropriately for excess travel time and payment of excess fares related to reassignment of duties including physical relocation of place of work – issue in dispute whether relocation temporary – if temporary, eligibility criteria for allowance satisfied – Commission found no express use of ‘permanent or ‘temporary in documents provided to applicant – relocation decision must be construed having regard to the events leading up to it – decision maker’s primary motivation was to resolve dysfunctional working relationship between applicant and another employee – no evidence decision maker deciding on a temporary fix – applicant’s conduct in objecting to relocation and seeking two reviews of decision showed applicant under no illusion that relocation other than permanent – Commission satisfied that decision to relocate applicant not of a temporary nature – nature of duties did not make reassignment temporary – applicant not entitled to excess travel time allowance in agreement – application dismissed. Bebawi v Australian Government t/a Department of Defence
February 4, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant submitted dismissal the result of a long term constructive dismissal process due pending hip surgery – respondent a small business – submitted it complied with Small Business fair Dismissal Code (Code) by giving applicant verbal and written warnings regarding performance – Commission satisfied applicant given numerous warnings about conduct and performance – employee became recalcitrant – refused to follow legitimate instructions – respondent satisfied procedural requirements of Code – while not convinced applicant treated with appropriate level of procedural fairness in dismissal process, Commission found deficiency primarily caused by applicant’s actions – satisfied dismissal for a valid reason and consistent with Code – applicant not unfairly dismissed – application dismissed. Vasilkevs v Imprimater P/L t/a Metro Press.
February 4, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – Commission held there were no vacancies at time of termination and it was not reasonable to redeploy applicant in another role – respondent established requirements that termination was a result of genuine redundancy and for this reason applicant was not unfairly dismissed – application dismissed. McCaffrey v Indigenous Land Corporation.
February 4, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent alleged serious misconduct of applicant and dismissal consistent with small business fair dismissal code – applicant alleged to have sent email from respondent’s email to potential employer – content of email inaccurate and derogatory to current employer – applicant denied existence of email when confronted by respondent – applicant had received three previous warnings regarding email and internet misuse – applicant submitted his reasons for sending email was to explain to potential employer why he was seeking to leave current job and did not intend to damage respondent’s business – Commission satisfied respondent believed on reasonable grounds that applicant’s conduct sufficiently serious to justify immediate dismissal – dismissal was in accordance with small business code – application dismissed. Burd v Moran Management t/a Moran Ins Brokers
