ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – two questions in dispute – first dispute related to incorrect interpretation of terms of Port Botany (PB) and Fisherman Islands (FIT) Patrick Site Maintenance Enterprise Agreement 2012 – 2015 and the Stevedoring Industry Award 2010 which concerned amounts due as entitlements arising in circumstances of redundancy – employee submitted terms contained in clause 24.6.4 of the Agreement operated to give life to particular terms of Award – proper construction of clause 23.2(a) of the Award established that qualification or requirement of 10 years’ service before which an entitlement to payment of accrued personal leave applied, operated as a condition to the entitlement only upon resignation – second contest involved question of service for the purposes of a redundancy payment under the clause 15.4 of the Agreement – term ‘service’ should be construed to include service as a casual employee, rather than confined to service as a weekly hired (permanent) employee – employer submitted that the resolution of the two issues in contest involved a case about English words and what they mean, and how the meaning of those words is derived – terms of clause 23.2(a) of Award very straightforward – clear all of the particular circumstances mentioned, death, retirement, redundancy or resignation, were caught by a qualification of 10 years’ service, before an entitlement to payment of accrued personal/carer’s leave was established – no proper basis to construe terms of clause 15.4 of Agreement to provide for calculation of redundancy payments to include periods of casual employment as service – Golden Cockerel adopted – Commission found construction of clause 23.2 of the Award results in an entitlement for an employee to receive payment of accrued personal/carer’s leave when their employment is terminated in the circumstances of death; or retirement; or redundancy; or resignation, in the case of resignation only, employee must have completed at least 10 years’ service – second contested construction question involved clause 15.4 of the Agreement, and the proposition advanced by the employee that redundancy payments should be made in respect to periods of employment as a casual – proposition is rejected and the employer’s construction for the terms of clause 15.4 of the Agreement is confirmed. The Maritime Union of Australia v Skilled Group Limited t/a ATIVO Maintenance & Project Services.
January 27, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 (2014 Agreement) – drivers who deliver keg and package Carlton United Breweries (CUB) products are currently paid in accordance with expired, unsigned agreements: the Linfox New South Wales (Foster’s Rosehill – Keg) Alternative Payment Method and the Linfox New South Wales (Foster’s Rosehill – Packaged) Alternative Payment Method (APMs) – these APMs provide additional payments over and above the provisions contained within the 2014 Agreement – current contract between Linfox and CUB ends on 31 March 2016 – CUB has advised Linfox will be unsuccessful in the tender process and the loss of approximately 121 jobs covering drivers, offsiders, loaders, storepersons and other management, supervisory and administrative support staff – Linfox sought an order from the Commission to apply the hourly rate of pay arising from clause 88.2(a) of the 2014 Agreement – Linfox argued that both APMs have expired in accordance with their terms – Commission to determine whether the terms of the APMs were in any event incorporated into the 2014 Agreement and therefore have the force of the 2014 Agreement c- satisfied that the APMs were never intended to form part of the 2014 Agreement – by the time the 2014 Agreement came into operation, the two APMs had reached their respective expiry dates – Commission determined that the APMs have expired and are not incorporated or otherwise subsumed into the 2014 Agreement and therefore Linfox is entitled to apply the totality of the 2014 Agreement to the relevant employees, including the hourly rates of pay arising from clause 88.2(a) – Linfox urged to enter into further negotiations with the TWU with the aim of reducing any financial impact on the relevant employees who will be affected. Linfox Australia P/L v Transport Workers’ Union of Australia.
January 27, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application concerning a dispute about the meaning and import of the word meeting – Company proposed to conduct bargaining meetings using telephone facilities – MUA claimed clause in Viterra Ltd Build Loadings Plants Enterprise Agreement 2012 required a meeting to be held in-person – argued the term meeting was used in Agreement separately to that of a conference and teleconference was more consistent with being a conference rather than a meeting – contended Union would never have agreed to clause if it meant anything other than face-to-face meeting – Company agreed meaning of meeting in clause was unclear and ambiguous – contended not necessary that meetings occur in-person – ordinary meaning of term contemplates going beyond the sense of face-to-face – claimed a technical and strict approach to construction of provision would lead to narrow result – Commission applied approach taken in Golden Cockerel – considered objective and intent of Agreement – acknowledged both benefit of face-to-face meetings and the costs and lost time – held clause does not require a meeting to be held face-to-face – meetings can be conducted wholly or partly in person, by telephone or video link – recommended that at least once in each two year period, the bargaining group meet face-to-face. Maritime Union of Australia v Viterra Limited.
January 27, 2016
RIGHT OF ENTRY – misuse of system – s.508 Fair Work (Registered Organisations) Act 2009 – application to restrict rights if organisation or official has misused permit rights – Director of the Fair Work Building Industry Inspectorate (the Director) alleged CFMEU and its officials misused rights of entry to a number of Lend Leases premises – the Director sought consequential orders restricting the exercise of rights of entry in the future – power exercisable under s.508 is dependent on the Commission being satisfied that an organisation or official misused right of entry rights – Commission must find two elements, whether the conduct occurred in the exercise or purported exercise of the statutory entry rights and whether the rights were misused – concept of misuse is a wide one and includes failure to produce a permit on request, failure to give an entry notice, entry other than during working hours or holding discussions other than during mealtimes or other breaks, failure to comply with a reasonable request by the occupier to comply with an OHS requirement and intentionally hindering or obstructing or otherwise acting in an improper manner – additionally conduct may amount to misuse where is it unlawful, is for an improper or collateral purpose or use of the right stops work – Commission to adopt approach distilled in CFMEU V FWC and Gregory Charles Alfred v Andrew Quirk – Commission found that a number of CFMEU officials entered various sights for a proscribed purpose and misused their right of entry powers – the Director submitted that if findings of misuse against individual respondents were made, their conduct is taken to have also been engaged in by the CFMEU – Commission found that CFMEU itself was involved in the misuse of entry permits held by its officials – the Director deferred submissions on the consequences of findings until the Commission made a determination – the CFMEU submitted that the power to make orders is discretionary – Commission to provide parties with opportunity to make submissions on the consequences of these findings – directions issued. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and others.
January 27, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.379 Fair Work Act 2009 – two jurisdictional questions arose in relation to a dispute notification – first objection, employer contends the AWU has not complied with requirements of the dispute resolution clause within the Agreement – second objection, employees who allegedly agitated the dispute are no longer employees (owing to redundancy) and consequently have lost their rights to progress the dispute under the disputes clause – in relation to first objection, Commission considered ING – construction of current s.739 of the Act did not suggest a departure of any material kind from the Workplace Relations Act 2996 for purposes of introducing a limitation on the rights of parties to agreements who had agitated a dispute prior to the cessation of their employment – in relation to second objection, email was sent by representative of employees to supervisors alerting them of dispute – employer contended obligation under clause 2.2 of the Agreement is personal to each of the employees concerned and cannot be substituted by another course of action – employer contended further there is no evidence before the Commission that demonstrates that the employees have met the requirements of subclause 2.2(d) of the Agreement – Commission found one or more employees have raised a relevant concern under the disputes clause, that is sufficient for the purposes of the further escalation of the dispute – not necessary that each and every employee who may be affected by the dispute or who may share a common interest in the dispute or who may otherwise have a relevant concern about the matter must personally agitate that matter with their immediate supervisor in order for the matter to be escalated through the disputes procedure – employees brought the dispute notice under s.739 of the Act in compliance with the requirements of clause 2.2 of the Agreement, and the Commission is not barred from dealing with the substantive matter in the manner prescribed by the Agreement. Australian Workers’ Union, The v Veolia Environmental Services (Australia) P/L
January 27, 2016
GENERAL PROTECTIONS – jurisdiction – s.365 Fair Work Act 2009 – respondent objected on the grounds applicant was not terminated and instead abandoned his employment – applicant enquired about outstanding wages with respondent, and respondent informed applicant he was not his ‘type of person’ and he would be replaced by someone more affordable – respondent told applicant that bookkeeper would contact him – applicant visited doctor and was issued a medical certificate stating he was unfit for work for period 17-22 December 2014 – applicant personally gave medical certificate to respondent- applicant made several unsuccessful attempts to call respondent following expiry of medical certificate – on 9 January 2015 applicant contacted respondent bookkeeper who advised applicant he had been terminated – respondent denied this occurred and contended that applicant abandoned employment – Commission applicant employed had ceased on 9 January 2015 – number of aspects of applicants unchallenged evidence further support a finding that he did not abandon his employment – applicant was keen to establish what the situation was regarding his employment – application was made within 21 day statutory timeframe – matter to be re listed for conference. Forrester v Growers Market Express P/L
January 27, 2016
INDUSTRIAL ACTION – extension of protected industrial action period – s.459 Fair Work Act 2009 – reasons for ex tempore decision delivered on 22 December 2015 and recorded in transcript – application to extend 30 day period in respect of industrial action authorised by protected action ballot – Commission has discretion to extend – statutory basis for exercising discretion satisfied – respondent opposed extension of time – four broad reasons given relating to lack of consultation, impact of industrial action, voting, and absence of changes to respondent’s policy, wages or conditions – Commission did not find any of the grounds for objection persuasive – application granted – 30-day period extended by further 30 days – order issued separately. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Allen O’Brien P/L T/A O’Brien Electrical Services.
January 27, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant employed within the service department of AMR Motors P/L – applicant alleged demotion was a result of his absence on sick leave and that the demotion forced him to resign – respondent denied allegations and claimed that the applicant resigned voluntarily and was demoted due to issues with performance – application filed seven days out of time – extension of time required – Commission to consider whether exceptional circumstances exist – reason for delay, being the applicant’s ill health, found to fall well short of establishing exceptional circumstances – no evidence of the applicant disputing the dismissal – respondent would be prejudiced by the time and cost involved in further litigation – merits do not give weight to exceptional circumstances – Commission not satisfied that exceptional circumstances exist to warrant granting an extension of time to file the application – application dismissed. Badolato v AMR Motors P/L
