Case procedures – application dismissed on FWC’s own initiative – ss.394, 399A, 593 Fair Work Act 2009 – application for unfair dismissal remedy – respondent lodged objection to application pursuant to ss.399A and 593 of FW Act – respondent stated applicant was dismissed for serious misconduct involving alleged theft – respondent advised it did not want matter heard until criminal matter relating to theft heard in Magistrate’s Court – criminal matter adjourned several times – applicant ultimately plead guilty and convicted – Commission contacted applicant on a number of occasions – applicant failed to comply with directions – Commission held application had no reasonable prospect of success and should be dismissed – satisfied dismissal was fair and complied with the Small Business Fair Dismissal Code – application dismissed. Box v Marshall Security Service P/L t/a Marshall Security Service
January 19, 2016
A heavy preponderance of today’s 33 employment challenges emanate from the care sector. The biggest contributor is Anglican Aged Care Services Group with five claims. The full list is: Copper Refineries Pty Ltd (Dennien), Metro Assist Inc (Cao), Sydney Trains (Cameron), Pacific National (NSW) Pty Ltd (Rich), Sushi Tribe Pty Ltd (Foster), Tony and Guy Leichhardt (Farshadi), Salsas Pty Ltd (Grafton), Startrack Express (Swan), Metro Trains Melbourne Pty Ltd (Wintle), Toll Transport Pty Ltd (Staniforth-Smith), SolarisCare Foundation Ltd (Gugiatti), Hampton Transport Services Pty Ltd (McMillan), Youngs WA Pty Ltd (Fishbourne), Anglican Aged Care Services Group (Kellett/Kidman/Dakenfull/Elwood/Nally), BNR Logistics Pty Ltd (Leota), Patterson Lakes Community Centre Inc (Rimmer), Moran Management (Burd), Karingal Inc (Carroll), Eastern Health (Kanyua), Territory Transit (Shukri), ACE Insurance Limited (Filer), Medibank Health Solutions Telehealth Pty Ltd (Smith), Australian Telecommunications Solutions (Maris), Busiko’s Pharmacy (Bradshaw), LBS Accountants (McDowall), Blue Care (Woolston) and GM Holden Ltd (Harvey).
January 19, 2016
The National Offshore Petroleum Safety and Environmental Management Authority is being challenged (rule 58 – application to review other decision) by Technip Oceania Pty Ltd in the Fair Work Commission this morning.
January 18, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – employees received letter from employer on 13 October 2015 advising them their “substantive position is access to Essential Energy’s business requirements and you will be redeployed effective 19 October 2015” – letter provided employees two options to “no longer attend for work, as there is no meaningful work for you to perform” and “complete a four week career transition program” – parties agreed question for Commission to answer “is Essential Energy entitled (under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy dated 20 November 2013) to issue a direction to redeployees not to attend for work in circumstances where it asserts there is no meaningful work placement (as defined in the Policy)?” – unions submit direction to “no longer attend for work” is inconsistent with Policy which requires, Essential Energy place employees “into a meaningful work placement” – respondent submits nothing in the Agreement displaces the common law rights including there is no obligation on Essential Energy to provide work – extent that the Policy imposes a requirement on Essential Energy to place a redeployee into a “meaningful work placement”, such obligation does not require Essential Energy to create a new position and is limited to instances where a “meaningful work placement” is available – Commission found the answer to question agreed by parties to be no – respondent is restrained from giving effect to any direction, given to employees it has described as “redeployees in underfunded positions” on 13 October 2015, that they not attend for work and must place employees subject of the direction in a meaningful work placement as defined by the Management of Surplus Employees Policy – order issued. Australian Municipal, Administrative, Clerical and Services Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Association of Professional Engineers, Scientists and Managers v Essential Energy.
January 18, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned whether respondent required to pay applicant on occasion where he attended mine site for an OHS meeting which was cancelled – applicant previously paid four hours overtime in manner consistent with cl.11.2 (recall) for attending meetings – applied principles of Golden Cockerel – applicant was not instructed to attend in accordance with cl.11.2 – applicant’s argument based on fact he had been paid four hours in the past – argument did not assist with interpretation of clause of agreement – language not susceptible to more than one meaning – no regard to subjective intentions of parties – applicant not entitled to payment for voluntary attendance – application dismissed. Construction, Forestry, Mining and Energy Union v Leighton Contractors P/L.
January 18, 2016
INDUSTRIAL DISPUTE – stand down – ss.524, 526 Fair Work Act 2009 – applicants stood down by respondent in 2014 – applicants employment terminated in 2015 – period between stand down and termination applicants received no pay – applications made after termination of employment and not at time of stand down – respondent exercised jurisdiction issue – whether applicants are within scope of s.526 FW Act – applicants must be within meaning of s.526(3)(a) – parties unable to direct Commission to any authorities where application under s.526(3) of FW Act was made by former employee – Fair Work Bill 2009 Explanatory Memorandum considered relating to operation of s.526 – at time of application employee must be experiencing or about to experience consequences of stand down – applicants had opportunity between stand down and termination to complain about stand down and chose not to do so – applicants now seeking to recover underpayment of wages – Commission does not have jurisdiction to deal with underpayment of wages – Commission concluded respondent’s jurisdictional objection upheld and applicants applications dismissed. Schell and Anor v Ensign Australia P/L.
January 18, 2016
TERMINATION OF EMPLOYMENT – remedy – ss.392, 394 Fair Work Act 2009 – Commission previously found applicant had been unfairly dismissed – reinstatement not an option given the nature of the relationship between the parties – parties made further submissions on the matter of compensation for decision to be heard on the papers – Sprigg formula adopted – no submission on effect of the order on the viability of the employer – length of service in dispute – applicant mitigated loss by finding alternative employment – Commission satisfied applicant would have been employed for a further six months if not for the dismissal – order for compensation in the sum of @2,936, being the loss of earnings incurred by applicant in the 26 weeks following dismissal – order issued. Peterson v TCB Trading P/L, TCB (CIB) P/L, Security Logistics Australia P/L.
January 18, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application lodged 508 days after dismissal took effect – applicant last performed work in April 2014 – lodged Workcover claim, claim rejected, appeal lodged against decision and appeal upheld in February 2015 – there are no exceptional circumstances found given the length of time that has elapsed – Commission found applicant’s case is without merit or lacking any substance [Kornicki v Telstra-Network Technology Group] – Commission refused application for an extension of time – jurisdictional objection upheld – application for an unfair dismissal remedy dismissed. Saeed v Wild Breads P/L.
