ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision of single member of Commission – leave entitlements in RACV Roadside Assistance Centre Enterprise Agreement 2014-2017 (Agreement) expressed in hours rather than days – existing practice was to deduct 7.6 hours for each day of leave taken, irrespective of actual number of hours of leave taken – Commission at first instance found that this interpretation was not inconsistent with Agreement and should remain – on appeal, Full Bench found that existing practice was inconsistent with Agreement – as NES entitlements – separate issue arose of whether shiftworkers under Agreement entitled to five weeks of annual leave – Agreement did not expressly define shiftworkers for purposes of the NES – Full Bench found that definition of shiftwork in the Clerks – Private Sector Award 2010 was incorporated by reference – RACV submitted that employees would not receive less than NES leave entitlement, as Agreement specifically stated that it would not operate such as to provide a detrimental outcome for employees as compared to the NES, effectively providing a provision that was ‘self-correcting’ in the event of a potential inconsistency – Full Bench satisfied that highlighted provision’s effect wast hat Agreement could not lead to a result whereby an employee’s entitlements under Agreement were less than their entitlements under the NES – appeal upheld – method for deducting leave from employee balances determined. Appeal by RACV Road Service P/L against decision of Roe C of 16 October 2014 [[2014] FWC 7241] Re: Australian Municipal, Administrative, Clerical and Services Union.
January 14, 2016
The hospitality sector will be represented today by QT Hotels and Resorts Pty Ltd. Other entities on parade include: Great Swags Limited (Chaplin); Hit and Bounce Pty Ltd (Navia Ortiz); SDA Schools (North NSW) Ltd; Electricity Networks Corporation (De Villiers); Mader International Pty Ltd (Duma); Sensis Pty Ltd (Palkar); Winemaking Tasmania (Holland); Halliburton Australia Pty Ltd (Damjanovich-Napoleon); Programmed Marine Pty Ltd (Matt); Diamond Protection Pty Ltd (Findley); Absolute Care Cleaning Services (Gebert); Market Europa Kingston Pty Ltd (Mahlook); Norden Body Works (Mason); Street Swags Limited & Madden (Chaplin); Life Without Barriers (Carrick); Light Steel Structures Pty Ltd (De Vries); Boyles Fitness Equipment (Watkins); Fawcett Plumbing Pty Ltd (Coward); Centavale (Nixon); QT Hotels & Resorts Pty Ltd (Csontos); and Street Swags Limited (Chaplin).
January 13, 2016
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision of single Commissioner to dismiss application for want of jurisdiction – applicant lodged application one day outside statutory time limit – applicant submitted she approached incorrect government agency for assistance, encountered phone problems when attempting to contact the Commission and experienced difficulty when attempting to lodge her application electronically – Commission found no exceptional circumstances to justify extension of time – extension of time was refused – application sought permission to appeal – public interest must be enlivened for permission to appeal to be granted – applicant alleged Commissioner erred in asserting that the applicant had not attempted to file her application within 21 day period, as the Commission’s website does not state it is a requirement to “attempt” to file the application prior to the 21 day – Full Bench not satisfied applicant’s submission identifies any legal or factual error – Commissioner correctly assessed the reason given by the applicant for the delay by reference to the whole period between the dismissal and the lodgement, not simply the period from the applicant’s first attempt – applicant submitted public interest enlivened as respondent “needs to be held accountable” – Full bench not satisfied public interest enlivened – application dismissed. Appeal by Dawn Evans against decision in transcript and order of Bissett C of 1 October 2015 Re Scope (Vic) Ltd.
January 13, 2016
TERMINATION OF EMPLOYMENT – misconduct – serious misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision and order dismissing application for unfair dismissal remedy – verbal and threatening abuse of another employee – found to constitute valid reason for dismissal – applicant submitted that errors in Commissioner’s decision, dismissal disproportionate and material considerations not taken into account – Commissioner had benefit of seeing witnesses and preferred their evidence over applicant – not persuaded Commissioner erred in doing so – issue of mental illness not squarely raised before Commissioner so cannot be said to have erred by not considering this – Commissioner mad reference to definition of serious misconduct when considering s.387(a) – Full Bench observed that serious misconduct is not criterion for whether valid reason exists – no appealable error because ultimately held there was valid reason for dismissal – collateral significance because 18 years’ long service leave denied due to serious misconduct – Full Bench read Davies v Youngs WA P/L to mean applicant entitled to long service leave – if issue remains in dispute will need to enforce in court – no arguable case of appealable error – no public interest – appeal dismissed. Appeal by O’Connell against decision of Cloghan C of 14 October 2015 [[2015] FWC 7011] Re: Wesfarmers Kleenheat Gas P/L t/a Kleenheat Gas.
January 13, 2016
TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – appeal – full bench – appeal on various grounds including that Vice President did not provide adequate reasons and wrongly applied test in making findings under s.387(a) of the Act (valid reason) – found s.387(a) requires Commission to make findings as to whether or not alleged conduct occurred on the evidence before the Commission – found Vice President relied on findings that the employer believed on reasonable grounds that the employee was guilty of the conduct which resulted in termination – found adequate reasons for decision in respect to findings of fact necessary to determine s.387(a) not provided – permission to appeal granted – appeal allowed – decision and order quashed – matter remitted to Commissioner Roe. Appeal by Singh against decision of Watson VP of 10 July 2015 [[2015] FWC 4275] Re:Singh.
January 13, 2016
CASE PROCEDURES – appeals – ss.394, 400, 604 Fair Work Act of 2009 – appeal – full bench – applicant appealed against the decision of extension of time – application made two days outside of the 21 day time limit – appealed decision not to allow further time period – applicant stated appeal lodged late due to illness and slow post-delivery – no evidence found that this might be the case – no arguable case of appealable error is demonstrated – extension of time to appeal dismissed. Appeal against and Order and Reasons for Decisions [[2015] FWC 6896] of Senior Deputy President Drake on 7 October 2015 Re: Norco Co-operative Limited t/a Norco.
January 13, 2016
Only six unfair dismissal/dispute hearings are set down for the Fair Work Commission to hear today. They include: Lee and Lyons Law Services Pty Ltd (King); Hodges Mentone Pty Ltd (Wilson); Galtran Pty (Balacco); Evolution Traffic Control Pty Ltd (Burke); Trustees Australia Ltd (Dixon); and Glencore Australia Holdings Pty Ltd (O’Farrell).
January 12, 2016
Westpac has a pair (Hicks/Oatway) who have triggered a s.739 application in the Fair Work Commission today. Other entities appearing include: PFD Food Services Pty Ltd (Nicholls); Evolution Business Advisers & CHJ Financial and Others; Lindsay Australia Limited (O’Farrell); Star Clinics Pty Ltd (Alarcon); Signature Training Pty Ltd (Dorsett); Australian Nuclear Science and Technology Organisation (Purnell); Roo’s Consultants Pty Ltd (Dorsett); The Easy To See Calendar Co Pty Limited (Burrows); Ocean Reef Medical Centre (Heaney); Woolworths Limited (Wright); MSS Security Pty Ltd (Goslin); Town and Country Community Options Inc (Hengst); Dr Ken’s Veterinary Clinic (Crowe); and Arrium Pty Ltd (Johnston).
