GENERAL PROTECTIONS – costs – ss.375B, 604 Fair Work Act 2009 – permission to appeal – Full Bench – respondent to general protections matter appealed against decision regarding costs application – respondent filed application for costs under s.375B(1)(b) after applicant failed to attend conciliation conference – application dismissed on basis it was out of time and no discretion under FW Act to extend time period allowed – appellant submitted Commissioner (as he then was) omitted certain material and made errors of fact – appellant also submitted it was unreasonable for Commissioner to dismiss application because Commission provided inaccurate advice which was reason for delay – Full Bench found no public interest in granting permission to appeal, found decision at first instance did not manifest an injustice and was not counter intuitive – Commissioner correctly applied FW Act and Decision not unreasonable – Full Bench found whether or not a Commission staff provided incorrect advice, in circumstances, no difference could have or did arise – permission to appeal refused. Appeal by C.A. Corling & M.G. Corling t/a Paws A While Boarding Kennels against decision of Bull C of 23 March 2015 [[2015] FWC 1925] Re: Tobin
November 20, 2015
ANTI-BULLYING – reasonable management action – ss.604, 789FC Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for an order to stop bullying on the basis that the action taken was reasonable management actions taken in a reasonable manner – allegations of bullying were primarily based on the conduct of the appellant’s managers in managing his performance – appellant submitted that permission to appeal should be granted as the Commissioner’s decision involved significant errors of fact and the Commissioner failed to take certain material into account – Full Bench considered Commissioner’s adoption of observations in Re SB regarding whether management action is reasonable – observations represent a helpful outline of the approach – Full Bench found the Commissioner applied the correct statutory test and applied appropriate observations regarding that test from precious cases – evidence of the circumstances was considered in detail and an assessment of the evidence was made in relation to the statutory rest – Full Bench not satisfied there was any error of principle, any material mistake of fact, any failure to have regard to a relevant consideration, or any reliance on an irrelevant consideration – did not consider that the result involved a substantial wrong – appellant essentially seeks to recast the circumstances in an effort to establish that a different result should have been reached – no appealable error or error in the exercise of the discretion vested in the Commission – permission to appeal refused. Appeal by Aly against decision of Bissett C of 10 August 2015 [[2015] FWC 4419] Re: Commonwealth Securities Limited and Ors
November 20, 2015
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve the Toll Energy Logistics Pty Ltd North West Agreement 2015 – Maritime Union of Australia (MUA) was unaware of existence of agreement prior to its approval and made no submissions to Commission opposing it – agreement was approved on the papers – Full Bench required to determine preliminary matters of whether MUA had standing to appeal and whether MUA should be permitted to adduce new evidence – MUA not a bargaining representative for agreement – Main People applied – MUA has an interest in decision beyond that of an ordinary member of the public – Commission satisfied of standing to bring appeal – J.J. Richards confers on Full Bench discretion to admit further evidence – MUA not afforded an opportunity to put forward evidence at first instance – both parties permitted to adduce new evidence – MUA contended that group of employees covered was not fairly chosen – MUA submitted employer always intended that a wide group of employees would be employed under the agreement and that this group of employees was readily identifiable when the agreement was made – while future pool of employees was identifiable, no obligation for employer to bargain with potential employees – employees fairly chosen MUA submitted agreement was not genuinely agreed to and that false and misleading statements were made by employer – Commission unable to find that employees were given false and/or misleading information during course of bargaining so as to enable a finding that the agreement was not genuinely agreed to by employees – given there was no hearing of the matter of opportunity for any person to raise issues raised by MUA before approval of agreement, public interest in granting permission to appeal enlivened – however, having regard to totality of evidence appeal is dismissed and decision to approve agreement confirmed. Appeal by The Maritime Union of Australia against decision of Cloghan C of 5 August 2015 [[2015] FWCA 5210] Re: Toll Energy Logistics P/L
November 20, 2015
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal of decision in relation to a dispute arising under the Endeavour Energy Enterprise Agreement 2012 – questions as to the application of the Electrician’s Licence Allowance – at first instance Commission determined specific categories of employees entitled to allowance – Full Bench to determine whether to grant permission to appeal – appellant contends appeal raises important questions, contains significant errors, resulted in a manifest injustice and potentially impacts other employers and employees – respondent argued that it is not in the public interest to grant permission to appeal – Full Bench satisfied that the resolution of the issue attracts the public interest and granted permission to appeal – considered Golden Cockerel and Essential Energy when interpreting clause – language of clause ahs plain meaning and is not ambiguous – at first instance Commission imported meaning into clause which did not arise from the words used – Full Bench satisfied clause is a grandfathering provision – conclusion at first instance wrong and amounted to an appealable error regarding the construction of the clause – appeal allowed – first instance decision set aside – Full Bench to provide assistance to parties through interest based bargaining – application returned to relevant Panel Head. Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against decision of Hamberger SDP of 9 March 2015 [[2015] FWC 1505] Re: Endeavour Energy
November 10, 2015
OCCUPATIONAL HEALTH AND SAFETY — prosecution under s.8(2) of the Occupational Health and Safety Act 2000 — plea of guilty – sentencing — fatal incident – several entities involved in operating a mine – defendant engaged in removal of reject material from mine site for disposal — reject material loaded into trucks by opening hydraulic gates to release it from base of storage Bin – loading cycle involved programmable electronic control program to facilitate correct positioning of truck when load released – worker killed when 10 tonnes of reject material was released onto cabin of truck — agreed statement of facts – proceedings delayed – coronial inquiry – doubt as to the authority of the prosecutor – victim impact statement received and acknowledged – relevant principles — objective features – objective seriousness of offence – defendant failed to protect contracted drivers against risk of being injured or killed by material falling onto them through the roof of the cabins of their trucks during a loading cycle — failure to ensure that contract drivers adopted a procedure by which it was not possible to activate the control program of the Bin so as to release reject material from the Bin when the cabin of a truck and dog combination was positioned beneath the Bin gates – defendant failed to ensure that the routine inspection and maintenance of the Bin included routine inspection and cleaning of the positioning sensors – measures could have been taken to obviate risk — defendant should have required a functional safety assessment of the possible effects of change to using truck and dog combinations with the Bin – defendant should have ensured work method adopted by contract drivers prevented cabin of trucks being located beneath the Bin when Bin gates were permitted to open – defendant should have ensured electronic sensors were inspected and cleaned as agreed – aggravating factors — fatality manifests the seriousness of the risk – risk foreseeable – simple remedial measures available – maximum penalty – general deterrence – continued risk as operating in dangerous industry – specific deterrence – mitigating factors – safety system was in place – risk not known or actually foreseen by defendant – risk partially outside the control or influence of the defendant – defendant was informed system was ‘failsafe’ – inappropriate to undertake process of apportionment or assess culpability of other entities – subjective features – steps taken since the incident – assistance to family of deceased worker – counselling assistance to injured workers – expression of contrition and remorse – cooperation with investigation – discount for plea – first offence – good industrial character – impact of delay — penalty imposed — moiety. Nash v Daracon Mining Pty Ltd [2015] NSWIC 14 (19 October 2015).
November 10, 2015
WORKERS’ COMPENSATION – claim for lump sum compensation – alleged injury in course of employment to both lumbar and thoracic spine – arbitrator determined that appellant injured lumbar spine but not thoracic spine – worker appealed to Workers Compensation Commission – whether Deputy President erred in finding that the worker did not challenge the arbitrator’s finding about the thoracic spine – whether Deputy President’s misreading of the arbitrator’s reasons was an error of law – whether Deputy President had the power under the Workplace Injury Management and Workers Compensation Act 1998, s.352(7) to remit part only of the worker’s claims for re-determination . PROCEDURE – procedural fairness – Workers Compensation Commission erroneously found that appeals from an arbitrator to the Commission did not challenge the arbitrator’s finding that the worker did not suffer a thoracic spine injury – whether Commission finding that any such challenge would not have succeeded in any event indicated that the worker did not suffer any practical injustice as a result of a prima facie denial of procedural fairness – consideration of the weight to be given to contingent findings. Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 (29 October 2015).
November 10, 2015
ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 )NSW) – decision of a Proper Officer – referral for further medical assessment – whether the Proper Officer properly determined whether additional information was capable of having a material effect on the outcome of the previous medical assessment – further assessment by a medical assessor – whether procedural fairness denied. Jubb v Insurance Australia Limited t/as NRMA Insurance [2015] NSWSC 1617 (3 November 2015).
November 10, 2015
WORKERS’ COMPENSATION – legal test for aggravation – whether Tribunal erred in finding work-related aggravation of respondent’s hyperacusis in circumstances where it also found neither hyperacusis nor underlying hearing loss and tinnitus was work-caused – whether Tribunal failed to grapple with the applicant’s submission there was merely a temporary worsening of hyperacusis symptoms in the workplace not amounting to compensable aggravation – Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508 considered – no error of law – appeal dismissed. Comcare v Reardon [2015] FCA 1166 (4 November 2015).
