The United Firefighters’ Union of Australia and the Metropolitan Fire and Emergency Services Board have a s.379 (Application to deal with a dispute) before Fair Work Commissioner Wilson.
December 14, 2015
An application for approval of the Swetha International Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2015 is being reviewed by Fair Work Deputy President Sams.
December 14, 2015
The healthcare, mining and educational sectors dominate today’s unfair dismissal cases in Fair Work Commission chambers around Australia. The line-up includes: SACRT Trading Pty Ltd (Fleming), Comcare (Macdonald), Anglicare SA Ltd (Melendez), Community Accommodation and Respite Agency Inc (Saler), Queensland Rail Limited (Engeln), Subway Indooroopilly Shopping Centre (Tough), University of Newcastle (Kitanovski), MSS Security Pty Ltd (O’Brian), New Millennium Security (Bullock), 13 Brigade (Richards), Ngarda Civil & Mining Pty Ltd (Baker), Communicado Marketing Communications Pty Ltd (Hall), Foster Pharmacy Pty Ltd (Wakeling), Apaiser Pty Ltd (Williams), Whittaker Contracting Pty Ltd (Francisco), Qantas Domestic Pty Ltd (Atherton), National Australia Bank Limited (Malignaggi), The GEO Group Australia Pty Ltd (Guy), Grace Worldwide Pty Ltd (Picot-Russell), The Shower Repair Centre Australia Pty Limited (Hensler), BHP Coal Pty Ltd (Schmidt).
December 11, 2015
TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – employee applied for a costs under ss.400A, 401 and 611 of FW Act against employer – employee submitted that given the decision of the AAT in 2011 and 2012 it should have been reasonably clear to the ATO and its lawyers that the termination of his employment was harsh, unjust and unreasonable – further submitted that given his ill health it was necessary for him to engage lawyers – s.400A only applies to dismissals that took effect after the commencement of Fair Work Amendment Act 2012 – as employee’s employment terminated in 2011 the Commission does not have the jurisdiction to make an order under s.400A – for the same reason amendments to s.401 did not apply to employee’s dismissal – s.611 provides that a person must bear their own costs unless the Commission is satisfied a person has acted vexatiously or without reasonable cause – Commission found employer did not respond to employee’s application vexatiously or without reasonable cause – costs application dismissed. Singh v Australian Taxation Office.
December 11, 2015
RIGHT OF ENTRY – application for permit – conditions ss.512, 515 Fair Work Act 2009 – applications by the CFMEU and the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland for the issue of entry permits to MR Lowth, an official of both organisations – Mr Lowth has held entry permits since 2003 – Director of the Fair Work Building Industry Inspectorate (Director) elected to exercise his right under s.72 of Mr Lowth’s statutory declarations notified the Commission that his permits expired in April 2015 – a spreadsheet erroneously recorded the expiry date of permits as April 2016 not April 2015 and as a result of that error, no application was made to renew the permits before their expiry – Mr Lowth submitted he had not intentionally misled any employer or site occupier about the fact that he had not had right of entry permits since April 2015 and had been issuing right of entry notices under the misapprehension that he was the holder of entry permits – the Director did not submit that Mr Lowth was not a fit and person to hold an entry permit, rather sought that a condition be imposed on any entry permit issued to MR Lowth – Commission held that Mt Lowth demonstrated lack of diligence on his part to ensure that he conducted himself in accordance with the relevant requirements of the FW Act – concluded that Mr Lowth was a fit and proper person to hold an entry permit – found conditions were necessary to remedy a deficiency in Mr Lowth’s history going to fitness and propriety – following conditions attached to the entry permits to be issued to MR Lowth: (1) Mr Lowth must take steps to verify that his permit is current before he issues any entry notice under the Fair Work Act 2009; and (2) Mr Lowth must have his entry permit on his person at nay time he exercises entry rights under Part 3-4 of the Fair Work Act 2009, and must produce that entry permit in accordance with the requirements of ss.489 and 497 (as applicable) – permits issued with conditions. Construction, Forestry, Mining and Energy Union and Anor.
December 11, 2015
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a prison officer at Acacia Prison – dismissed following an investigation into four allegations of misconduct – initial investigation into allegations conducted by respondent – following the lodgement of a dispute notification with the Commission, Resilience Solutions P/L (Resilience) appointed to investigate – respondent argued that the four breaches caused serious safety risks to other Acacia employees, prisoners and the general public – Commission not satisfied the applicant’s conduct was of the kind likely to cause such risks – not satisfied that the actions of the applicant caused ‘serious reputational damage and risk to the profitability of Serco’s business’ – Resilience concluded that, based on her interview, the applicant failed to understand and appreciate the wider implications of security related breaches, Commission found merit in this conclusion – not satisfied that there was a valid reason for summary dismissal for serious misconduct – found summary dismissal was a disproportionate response to the misconduct occurred – satisfied that the summary dismissal for misconduct was harsh, unjust or unreasonable – however, satisfied there was sufficient material on which the respondent could determine there was a valid reason for the termination of the applicant’s employment with notice – dismissal with notice would not have been harsh, unjust or unreasonable – respondent ordered to pay compensation of an amount equal to the quantum of notice that would have been properly paid to the applicant had her employment been terminated with notice – accrued long service leave should also be paid – both amounts should be paid with interest. Fallens v Serco Australia P/L t/a Serco Acacia Prison.
December 11, 2015
TERMINATION OF EMPLOYMENT – contractor or employee – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance that appellant was not an employee – Full Bench considered whether grounds of appeal attracted public interest – at first instance Commission held nature of relationship between appellant and respondent was one of principal and independent contractor, rather than employer and employee – Full Bench held appeal did not give rise to any public interest considerations and Commission had made no significant error of fact – permission to appeal refused. Appeal by Marya against decision of Gregory C of 8 September 2015 [[2015] FWC 6135] Re: Network Transport Services P/L.
December 11, 2015
INDUSTRIAL ACTION – order against industrial action – ss.418, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission ordered that industrial action stop – employees of ASP who are members of The Maritime Union of Australia (MUA) and who were allegedly refusing to perform work as directed so as to enable the vessel named MV Portland to sail from Portland, Victoria, to Singapore – grounds of appeal advanced included that the Commissioner erred in finding the refusal of employees to perform work was industrial action, finding the industrial action was being organised by the MUA and finding the direction of the respondent sail the MV Portland to Singapore for hand over to the new owner was a lawful, or a reasonable direction – the nature of appeal against an order under s.418 of the FW Act requires the establishment of a House v The Kind error [MUA v Patrick Stevedores Holdings] – Full Bench held that as none of the grounds of appeal appeared to have substance it was not appropriate to grant permission to appeal – permission to appeal refused – stay order made on 19 November 2015 discharged [PR574155]. Appeal by The Maritime Union of Australia against decision of Cambridge C of 17 November 2015 [[2015] FWC 7898] Re: ASP Ship Management P/L.
