RIGHT OF ENTRY – application for permit – ss.512, 515 Fair Work Act 2009 – application for right of entry permit (permit) for official of AMWU – permit initially refused as Commission not satisfied union official a fit and proper person to hold permit – consistent with Re Maritime Union of Australia, imposition of conditions under s.515 FW Act not considered prior to making determination – since Re Maritime Union of Australia, Fill Court of Federal Court held consideration of whether conditions should be imposed on a permit should occur conjointly with consideration of whether union official a fit and proper person [Maritime Union of Australia v Fair Work Commission] – permission to appeal granted by Full Bench of Commission – union official’s permit had been revoked in 2003 owing to conduct falling short of standard required for permit holders – union official proposed Commission issue permit with number of conditions – AMWU submitted union official no longer given to outbursts that led to initial revocation of permit, and that should be granted a permit subject to conditions – Director of Fair Work Building Industry Inspectorate (Director) submitted union official behaviour demonstrated he was not a fit and proper person to hold permit – Director further submitted should Commission decide to grant official permit, conditions imposed would need to be very strict – Commission not satisfied union official a fit and proper person to hold permit – union official aware of legal obligations but nevertheless behaved in unacceptable manner – application for permit refused. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) – Victorian Bench
January 19, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant submitted dismissal took effect in May 2015 but not advised of dismissal until October 2015 – application out of time if dismissal took effect in May 2015 – for purposes of extension of time application, Commission accepted that employment ended in may 2015 – found applicant provided reasonable explanation for the delay in lodging application – not informed of dismissal until after it took effect – claim not without merit on material before Commission – satisfied exceptional circumstances – extension of time granted. Eastley v Inghams Enterprise P/L
January 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act – applicant dismissed because he verbally abused supervisor in front of other employees; did not follow correct OH&S procedures; and had previously been warned about verbally abusing a manager and been given a formal warning and relocated to another site – Commission found dismissal not unfair – not first time applicant swore at supervisor – conduct in directing unacceptable language at manager, in light of previous warning, meant valid reason for dismissal – afforded procedural fairness – application dismissed. Horner v Kailis Bros P/L
January 19, 2016
ENTERPRISE AGREEMENTS – varying agreement – s.210 Fair Work Act 2009 – application to approve variation to enterprise agreement – CFMEU sought Member recuse himself from application – claimed view tainted for reasons Member engaged with applicant’s legal representative without knowledge of CFMEU – further claimed Member an acquaintance of General manager of LCR Group P/L – Commission held not necessary to convene hearing – held no evidence CFMEU was denied procedural fairness – Member denied link to General Manager – dismissed application by CFMEU for Member to recuse himself – requested any further submissions regarding signature page of agreement be filed by 8 January 2016. LCR Group P/L Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798)
January 19, 2016
GENERAL PROTECTIONS – amendment of application – ss.365, 568 Fair Work Act 2009 – application to deal with general protections contraventions involving dismissal – respondent’s chief financial officer (CFO) submitted applicant never been employed by respondent and application should be dismissed – applicant sought to amend application to change respondent – applicant submitted mistakenly cited respondent in original application as name appeared on payslips and correspondence from employer, and believed respondent’s CFO represented his employer – respondent’s CFO submitted while the CFO for a number of companies within a group, he always referred to particular company in subject heading of emails – respondent’s CFO provided a range of materials to Commission, such as emails, payslips and applicant’s tax file number declaration – Commission satisfied material clearly indicated applicant not employed by respondent – not appropriate to amend original application to amend respondent – however Commission unable to dismiss original application as made in accordance with Act. Mathyi v Girgis Group P/L.
January 19, 2016
GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged twelve days outside 21 day statutory timeframe – applicant hospitalised seven days after dismissal – submitted detained under Queensland’s Mental Health Act 2000 – reason for delay was hospitalisation and that being under Mental Health Act incapable of making decisions – Commission found exceptional circumstances – key considerations were applicant’s hospitalisation and the steps taken to dispute dismissal prior to hospitalisation – extension of time granted. Howard v Redcliffe Produce Agency P/L.
January 19, 2016
TERMINATION OF EMPLOYMENT – unlawful termination – extension of time – s.773 Fair Work Act 2009 – application to deal with unlawful termination dispute made 130 days’ late – applicant submitted reasons for delay were to provide evidence position remained unfilled, recovering from surgery, representative occupied with carer and work duties and lack of understanding of rights – Commission found waiting for evidence not acceptable reason – had option of lodging before surgery and no evidence so incapacitated in 12 week period that unable to make application – could have chosen another representative – not understanding rights a common circumstance – not satisfied acceptable reasons for delay – not satisfied of exceptional circumstances – application dismissed. Vuleta v West Australian Turf Club t/a Perth Racing WA
January 19, 2016
ENTERPRISE AGREEMENTS – greenfields agreement – approval – s.185 Fair Work Act 2009 – decision previously published to approve agreement after being opposed by CFMEU – Commission indicated reasons to follow – CFMEU involved in negotiations for new enterprise agreement – CFMEU opposed approval – claimed not a genuine new enterprise and companies not engaged in joint venture – further claimed approval of agreement contrary to public interest and raised issue with signature requirements – Commission held employment of workers was for preparatory work – satisfied companies engaged in joint venture and nothing artificial or contrary to public interest – Commission satisfied with corrected signature page provided by applicant – dismissed objections of CFMEU – application approved. NorthConnex/AWU Civil Works Greenfield Agreement 2015-2019.
