RIGHT OF ENTRY – application for permit – ss.513, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision granting right of entry permit to Mr Ravbar, Divisional Branch Secretary of CFMEU – key ground of appeal concerned whether the DP at first instance should have implied Mr Ravbar was responsible for any of the conduct giving rise to penalties involving contraventions by CFMEU – public interest not enlivened – no evidence before Commission linking Mr Ravbar to contraventions by CFMEU – not sufficient to rely on assertion of CFMEU’s history of non-compliance with industrial laws and cultural wilful disobedience – no facts in evidence supported an inference that Mr Ravbar omitted to take any reasonable steps to ensure that others under his control failed to comply with the law – no evidence to support a finding that CFMEU’s history of contraventions said anything about Mr Ravbar’s personal conduct, character or reputation – appealable error not identified – appeal dismissed. Appeal by Director of the Fair Work Building Industry Inspectorate against decision of Lawrence DP of 13 April 2015 [[2015] FWC 2158] Re: Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch.
October 16, 2015
Aged care companies are the most prominent of the employment sectors in today’s parade before the Fair Work Commissioners. The alleged miscreants include Bupa Australia (Ross) and Churches of Christ in Queensland (Hodder). Other companies on parade include: K & K Mermaid Beach (Sebire), ER24 Pty Ltd Paramedic & Security Services (Ellis), Simpson Automotive (Dempster), Girgenti Lawyers (Sheehy), Gas Field Contracting Pty Ltd (Boyle), JG King Homes (Tyler), Box Hill Institute Group (Constantine), Copyworld Business Systems (Hay), Print Professionals Pty Ltd (Manolopoulos), Induspect Pty Ltd (Vadakkan), Department of Infrastructure and Regional Development (Boyd), Challenger Security Pty Ltd (Tanceski), Kmart Australia Limited (Chand), Nick Scali Limited (Di Lena), Jetcrete OZ (Pickering), Gradco Pty Ltd (Hipworth).
October 15, 2015
Aboriginal employer bodies make up twenty per cent of the quantum of all unfair dismissal claims being heard by the Fair Work Commission today. The full list includes: Marthakal Homeland Resource Centre Inc (Page/Zikos), Future Engineering and Communication Pty Ltd (McDaid), City of Swan (Wildes), Tocler Holdings Ltd (Nicholls), Metro Quarry Group Pty Ltd (Ingham), Fortescue Metals Group Limited (Weeden), Pioneer Credit Limited (Simonsen), Hella Australia Pty Ltd (Letts), Larrakia Nation Aboriginal Corporation (Zammit), Veolia Transport NSW Pty Ltd & Transdev NSW South Pty Ltd (Ayaz), Ravensworth Open Cut (Rose), Alliance Refrigeration Pty Limited (Lewis), Parmalat Australia Ltd (Parahi) and Helloworld Ltd (Reale).
October 14, 2015
Eighteen unfair dismissal cases will be conducted in the Fair Work Commission today, including: Skipworths Pty Ltd (McAllister), Overland Services Pty Ltd (Oakley), O’Brien Glass Industries Limited (Allen), Darumbal Community Youth Services Inc (Atkins), Mining & Industrial Labour Hire Pty Ltd (Adamson), AstraZeneca (Ratcliffe), Commonwealth Bank of Australia (Aly), Argyle Diamonds Limited (Henry), Temples (WA) Pty Ltd (Barfield), Boroondara City Council (Naeem), Glad Group (Youl), Pan Universe Investments Proprietary Limited (Lyletorn Pty Limited), TAFE Commission of NSW (Pittaway), United Management Services Pty Ltd (Salvador), Hit and Bounce Pty Ltd (Liu) and Parmalat Australia Ltd (Parahi).
October 13, 2015
Conditions of employment – redundancy – s.120 Fair Work Act 2009 – application to reduce to zero the amount of redundancy pay otherwise required to be paid to 19 employees – applicant a contract logistics provider to the transport and warehousing industry – applicant provided services to clients in NSW but lost contract following a tender process – contract loss led to displacement of 26 employees to service the contract – applicant made application on basis that it had found suitable alternative employment for the affected employees – a number of employees declined redeployment, claiming that the offers were either a sham or unsuitable for various reasons – a number of respondents submitted that some of the jobs that were offered did not actually exist, and that the alternative positions were declined because they were seeking a redundancy payment – it was also submitted that positions unacceptable because of the increased distances required to be travelled and different start times – Derole Nominees applied – ‘acceptable alternative employment’ to be determined objectively – Commission satisfied that each individual was offered a suitable alternative but chose (with two exceptions) not to take up offer – none of the explanations provided for declining alternative positions constituted a reasonable refusal – appears to have been a common belief amongst applicant’s employees that refusal to take up alternative position would entitle them to a redundancy payment – none of the former employees who gave evidence ever seriously considered taking up alternative position – Commission further found that the fact that not every alternative role was in existence at the time it was offered did not de-legitimise the offers – each alternative role within basic skill set of each employee, or was attainable – no reduction in pay for any employee and some would have received a pay rise – application granted. Glen Cameron Nominees P/L t/a Glen Cameron Trucking
October 13, 2015
Termination of employment – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant submitted the respondent told him he had two choices; either resign or be dismissed without notice or accrued entitlements – respondent submitted applicant had resigned due to concerns with his conduct and performance – Commission found applicant constructively dismissed – applicant dismissed due to failure to complete the log book in an accurate and timely manner and the related inability to account for the level of fuel purchases – applicant received detailed written warning relating to conduct and performance – Commission found applicant not guilty of theft or fraud, but that the failure to accurately complete log book constituted valid reason for dismissal – dismissal related to conduct of applicant not performance – applicant notified of primary reason for dismissal – Commission found respondent had a valid reason for dismissal – application dismissed. Ramsay v Hoover Container Solutions P/L
October 13, 2015
Termination of employment – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was a storeman at manufacturing plant – alleged to have committed continued safety breaches and issued with final formal warning for the unsafe operation of a forklift – final warning stated further breaches will result in termination – applicant dismissed after investigation into an incident at work – investigation concluded that applicant breached a 10kph speed limit on car park roadway and was driving in an unsafe manner – no continuity in nature of breach leading to final warning and that which led to dismissal – final warning itself not held as a valid reason for dismissal – Commission held that respondent blinded itself to possibility that termination for breach would be a harsh outcome – applicant denied opportunity to respond – dismissal unreasonable as other employees had breached the Code of Conduct in the same way without the same penalty being imposed – Commission found level of the breach did not warrant dismissal in the circumstances – dismissal, harsh, unjust and unfair – satisfied reinstatement as storeman appropriate remedy – reinstatement and restoration of lost pay ordered. Stephenson v Patties Foods Ltd
October 13, 2015
Termination of employment – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed, without notice, for breaching the respondent’s drug and alcohol policy – applicant underwent a blood alcohol test and returned a reading of 0.013%, and 0.006% to a second test taken 30 minutes later – applicant submitted that the policy only required a reading to be taken to two decimal places – Commission satisfied that 0.00% permissible alcohol level, when read in conjunction with zero tolerance, and with the specific wording of the policy makes it clear that an employee with any blood alcohol content in their system will be in breach of the policy – Commission satisfied that there was no evidence that applicant breached the policy at any other time – Commission not satisfied that the applicant was advised of the multitude of reasons relied on for his dismissal – applicant was unfairly dismissed – compensation reduced by 30% due to applicant’s misconduct – applicant awarded $11,507.16. Ingham v Metro Quarry Group P/L
