General protections – identity of employer – ss.365, 604 Fair Work Act 2009 – appeal – Full Bench – respondent made general protections dismissal dispute application – during the course of the conciliation conference an issue arose as to whether any of the first to third appellants were the true employer of the respondent to the appeal – employee applied to amend application to add fourth appellant as a party to the dispute – in first instance decision the fourth appellant was added – decision and order appealed – grounds for appeal that appellants, in particular the fourth appellant, were not given opportunity to be heard at conciliation conference and thus denied procedural fairness – respondent conceded denial of procedural fairness occurred – appellants preferred a rehearing with the Full Bench – respondent submitted matter should be remitted to a single member for rehearing – Full Bench considered appropriate course was to remit matter for rehearing before a single member – permission to appeal granted – decision at first instance and order quashed – application to amend remitted to Johns C for rehearing. Appeal by Veolia Water Solutions & Technologies (Australia) P/L and Ors against decision of Lawrence DP of 23 September 2015 [[2015] FWC 6573] Re: De Crisnay
November 30, 2015
The Asciano Services Pty Ltd circus sideshow continues to play to a full house at the Fair Work Commission. Now in its third day, it is threatening to run as long as Agatha Christie’s Mousetrap in the St Martin’s Theatre in London. The ensemble cast today includes Bryant, Deering, Hill, Lucas, Pemberton, Preston, Ross, Skinner and Smith, who were allegedly dismissed alphabetically. The warm-up acts include: The Redcliffe Aero Club Pty Ltd (Loughnan), ISS Facility Services Australia Limited (Mannah), Summit Tower Hire (Sodden), Barrett Moving Pty Ltd (Murphy), Anglicare SA Ltd (Melendez), BAE Systems Australia Limited (Greenwood), The Fadden Activity Centre, a sub-committee of the Fadden Primary School Parents & Citizen’s Association Incorporated (Butler), ACT Government Represented by the Directorate of Community Services (Andrews), Origin Energy Limited (McDow), Coles Supermarkets Australia Pty Ltd (Convey), Airservices Australia Pty Ltd (Iapozzuto), Scott McKenzie Transport (Leonard), Brentwood Secondary College Department of Education and Early Childhood Development (Hung), Market Europa Kingston Pty Ltd (Mahlook), Magnify Media Unit Trust (Chowdhury), Monee Valley Racing Club (Hinchen), Lovely Pancakes Pty Ltd (Borg/Maitland), Cahow Pty Ltd (Short), Guma ICRG JV Pty Ltd (White), Australian Taxation Office (Rahman), BevChain Australia Pty Ltd (Bray), Golder Associates Pty Ltd (Molinari), Mangrove Housing Limited (Wicks), Transfield Services (Yarnold), Citigroup Pty Ltd (Vlaciky), Visy Primary Packing (Hathaway), Splosh Australia (Conroy), Australian Electoral Commission (Alam), Lion Freighters Pty Ltd (Bridge).
November 27, 2015
Asciano Services Pty Ltd is again the star turn in the Fair Work Commission as its ex-workforce lines up alphabetically to tell their tales of woe and penury (Bayant, Deering, Hill, Lucas, Pemberton, Preston, Ross, Skinner, Smith). Other employers on today’s roll call include: Hatch Pty Ltd (Dale), Coomera Indoor Sports Pty Ltd (Kruse), AWX Pty Ltd (Zadeh), Aurizon Operations Limited (Reid/Vanderwolf), Bridge (Lion Freighters Pty Ltd), Viva Dental Pty Ltd (Bradley), Endeavour Foundation (Alford), Lion Dairy & Drinks (Reid), Commonwealth of Australia as represented by the National Capital Authority (Walker-kayer), ACT Government as represented by the Territory and Municipal Services Directorate (Hart), Jetstar Airways Pty Ltd (Gill), Tasmanian Ports Corporation Pty Ltd (Gee), Moonee Valley Racing Club (Hinchen), Toll Customised Solutions (Malik), Cahow Pty Ltd (Short), Carpet Court Australia Limited (Liao), Ello People Telecommunications Pty Ltd (Sipa Grost), Guardian Network (Zarnegar), Savannah Nickel Mines Pty Ltd (Wallis), Hit and Bounce Pty Ltd (Navia Ortiz), Imagetec Solutions (Manley), Norco Co-operative Limited (Massie), Wesfarmers Kleenheat Gas Pty Ltd (O’Connell), ISS Facility Services Australia (Vatuvei), BIC HR (Dubbaka), Life Without Barriers (Cavus), Manly Vale Nursing Home Pty Ltd (Clinton), Hatch Pty Ltd (Dale), AWX Pty Ltd (Zadeh), Scope (Vic) Ltd (Evans), MAX Solutions Pty Ltd (Tresize), Viva Dental Pty Ltd (Bradley).
November 26, 2015
Right of entry – dispute over right of entry – ss.484, 492, 505 Fair Work Act 2009 – CFMEU sought a declaration that crib rooms of Dragline 34 and Dragline 35 are rooms or areas in which discussions may be held under s.492(3) of the FW Act where agreement on location cannot be reached – CFMEU also sought a determination that CFMEU Vice President is entitled to hold discussions in crib rooms of Dragline 34 and Dragline 35 where a valid and compliant entry notice has been given and an order that the respondent refrain from preventing the Vice President from holding discussions in said crib rooms – respondent opposed CFMEU application and contended that specified locations are work areas and do not meet the requirements under s.492(3) as they not provided for the purpose of taking meal and other breaks – Commission required to determine whether the Draglines are a ‘room or area’ for the purposes of s.492(3) and whether, in all the circumstances, the CFMEU Vice President was entitled to hold discussions with employees in the Draglines when excising a right of entry under s.484 – Commission not satisfied that Draglines are rooms or areas within the meaning of s.492(3) – Draglines are very substantial pieces of equipment and their primary purposes is not to house a room or area in which crib breaks can be taken – the fact that Draglines may contain facilities in which employees can store and prepare food does not make them an area provided for that purpose – CFMEU Vice President not entitled to hold discussions in Draglines while exercising a right of entry. Construction, Forestry, Mining and Energy Union
November 26, 2015
Enterprise bargaining – protected action ballot – ss.437, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission made a protected action ballot order – appellant submitted the decision at first instance was wrong at law for two reasons, that the Senior Deputy President could not have been reasonably satisfied that the CFMEU had been genuinely trying to reach an agreement, and that the Senior Deputy President wrongly applied the law in Total Marine Services to the evidence – Full Bench not satisfied the decision involved appealable error – decision properly identified the statutory test, considered the evidence relevant to that test and made findings of fact arising from that evidence – Full Bench held the decision involved an unexceptional exercise of the Commission’s powers and there was no error in His Honour’s reasoning or determination – permission to appeal refused. Appeal by Asurco Contracting P/L against decision of O’Callaghan SDP of 12 August 2015 [[2015] FWC 5532] Re: Construction, Forestry, Mining and Energy Union
November 26, 2015
Termination of employment – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed in May 2015 due to incapacity to perform inherent requirements of Cool Room Operator – hazard and risk assessment conducted in February 2014 – applicant considered medium-to-high risk – applicant’s weight objectively precluded him from operating forklifts as exceeded maximum weight safety ratings – stood-down in June 2014 – second assessment in February 2015 – weight had increased from 165kg to 175kg – cardiologist report indicated severe obstructive sleep apnoea may pose a problem with operating mobile machinery – Commission accepted valid reason to dismiss on basis of incapacity concerning inherent requirements of position – decision to dismiss made around a year after applicant stood-down with a view to a return to work after addressing medically-advised weight/health management issues – respondent entitled to act on information available to it as of May 2015 despite post-dismissal developments following surgery concerning obesity – not satisfied dismissal harsh, unjust or unreasonable – application dismissed. Parahi v Parmalat Australia Ltd
November 26, 2015
Case procedures – appeals – extension of time – s.604 Fair Work Act 2009 – Full Bench – application for an extension of time to lodge an appeal – Full Bench decision given on transcript – decision at first instance arose from an application for an unfair dismissal remedy by appellant – Full Bench decided to decline the application for an extension of time to lodge the appeal because there was an insufficient basis for doing so – no valid appeal to be considered – application for an extension of time to lodge the appeal dismissed. Appeal by Newbound against decision of Wilson C of 2 September 2015 [[2015] FWC 6024] Re: GM Holden Ltd
November 26, 2015
Termination of employment – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged 24 days out of time – applicant submitted reason for delay was that he acted to pursue an unfair dismissal application in the South Australian Industrial Relations Commission within the time limit on the basis of advice provided through the Fair Work Commission website and telephone service – Commission accepted that advice provided by Commission could have been construed as indicating that SA Water not a national system employer and not covered by the FW Act – application lodged on same day that definitive confirmation of futility of initial application provided to applicant – Commission satisfied that reason for delay presented an exception circumstance – extension of time granted. Giannakakos v SA Water Corporation
