The unfair dismissal/contract dispute applicants queued in the Fair Work Commission today includes: Telstra Corporation Limited (Bose), Burleigh Marr Distribution Pty Ltd (Eruera), Australian International Islamic College Board Inc (Amin), Fredo Pies Frederickton Pty Ltd (Currie), Cedar Place Aged Care Facility Limited (Hall), Leisure Pools Newcastle Pty Ltd (Hedges), Bitton Gourmet & Jobsupport (Gregory), Shellharbour Private Hospital Pty Ltd (Mitchell), Superior Fitouts (Aust) Pty Ltd (Heagney), TC’s Take Away (Kilby), Capital Transport Group (Creed), The Trustee for Malek Family Trust (Garvey), In2 Motion Pty Ltd (Smith), H & T Realty Pty LTd (Susiardjo), WSP Australia Pty Limited (Pye), Ace Bottle Printers P/L (Macumber), The Shower Repair Centre Australia Pty Ltd (Kirk), Hindley and Associates Pty Ltd ATF the Hindley Trust (Jacks), Superstop Auto Parts (Ting), Positive Care Solutions Ltd (Green), Moreland City Council (Campbell), Doutta Galla Aged Services Ltd (Infante), Financial IQ Group (Barrie), Quand Service (Cannon), Powercor Australia Ltd/CitiPower Pty Ltd (Davis), Administrative Appeals Tribunal (Papaioannou), Australia Federal Police (Jager), Geoscience Australia (Simpson).
December 6, 2018
The unfair dismissal/labour dispute law list in the Fair Work Commission today includes the following: National Patient Transport NSW Pty Ltd (Gardner), Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn (Crowley), Internet Services Australia 1 Pty (Josevski), Cash Converters Pty Ltd (Sher), Metalwork WA Pty Ltd (Murphy), Roy Hill Station Pty Ltd (Cole), AR-Rahmann Investments Pty Ltd (Bourdon), Cincotta Discount Chemist Armidale (Jackson), Lamson Concepts Pty Ltd (McClements), Roy Morgan Interviewing Services Pty Ltd (Matthews), Administrative Appeals Tribunal (Papaioannou), Department of Justice and Regulation (Thomas), Goulburn Valley Health (Ahmad), Scalabrini Village Ltd (Stanvic), Steambrook Proprietary Limited (Trewin), Tasty Trucks Vic Pty Ltd (Rowe), Aloha Pools (Hall), Moreland City Council (Campbell), Incitec Pivot Limited (Humphrey), Bis Industries (Nahow), Horan & Bird Energy Pty Ltd (Gaunt), Air Con Clean (Donaldson), JBS Australia Pty Limited (Ryan), Colliers International (SA) Pty Ltd (McCouaig), Jambo Security (Dittman).
December 5, 2018
The Fair Work Commission law list includes: Rapid.doc Pty Ltd (Schofield), Eldercare Inc (Kennedy), Airservices Australia (Jones), Consolidated Insurances Pty Ltd (Cohen), Baxter Cassidy Pty Ltd (Cruise), P&H Heating and Cooling Pty Ltd (Gilpin), HWC Pty Ltd (Jarman), ISPT Pty Ltd & Green (Scott), Comcare (Papali), Transdev WA Pty Ltd (Elliott), Pilbara Iron Company (Service) Pty Limited (Tito), Trinh Giau Family Trust (Nguyen), Qantas Airways Limited (Warr), Ryan Wilks Pty Ltd (Puszka), The Tea Tree Centre Pty Limited (Patel), Hitachi Power Tools Australia Pty Ltd (Steel), Sargents P/L (Mudaliar), Linfox Armaguard Pty Ltd (Hobbs, Everett), Tren Trading Pty Ltd (Horan), Ivory Group P/L & Dicker Data Ltd (Liu), Granite Transformations Pty Ltd (Florian), MUNC – Melbourne Uni Netball Club (Maynard), Sydney Trains (Pirozzi), Coles Express (Yarra), Red Sun Camels Pty Ltd (Comyns), Kimberly Meat Company (Shore), Roy Hill Station Pty Ltd (Cole), Scalabrini Village Ltd (Stanvic), DET Department of Education (Jardine), Goulburn Valley Health (Ahmad), Australian Federal Police (Burnett, Burtenshaw), Excelcare Australia Limited (Millar), Melco Engineering Pty Ltd (Flynn), Mater Misericordiae Ltd (Mavronicholas), Air Con Clean (Donaldson), Relationships Australia Qld (Potter), Acquired Awareness Traffic Management Pty Ltd (Macauley), Colliers International (SA) Pty Ltd (McCouaig), Australian Rail Track Corporation Limited (Templer), Shopfitting & Building Services Pty Ltd (Jeanne), Kiki Hair Extensions (Lopez), BOQ (Luxford), Stonnington City Council (Robson), University of Technology Sydney (UTS) (Burke), Sarina Russo Job Access Australia Pty Ltd (Pratt), Pangalark Laboratory Technology Pty Ltd (Webber), Thinkbio Pty Ltd (Merritt), Global Mining Services Pty Ltd (Connolly-Manga), Structure Building Management (Arriola), Scalabrini Village Ltd (Chen), Marco Polo Aged Care Services Limited (Malafu), Fletcher International Exports Pty Ltd (Vaughan), Verticurl Marketing Services Pty Ltd (Butler-Cole), G. Larocca & J. Petralite (Petralito), Wormall Civil Pty Ltd (Carter), CSBP Limited (Johnson), Centrecare Inc (Cloy), The Trustee for Dean Industries Trust (Capaldi), South West Healthcare (Johnson), KDR Victoria Pty Ltd (Davila), CSBP Limited (Johnson), Superstop Auto Parts (Ting), Integrated Technologies Australia Pty Ltd (Lawther), Victoria Teachers Limited (Aitken), Geoscience Australia (Simpson), Reason Management Pty Ltd (McElligott), Allstate Home Loans Pty Ltd (Strachan), TPG Holdings Pty Ltd – TPG Telecom (Collier), Royal Automobile Association of South Australia Incorporated (Hashemizadeh), Catholic Healthcare (Gallagher, Clarke, Hickson, Hutchinson).
December 4, 2018
An army of claimants is awaiting an unfair dismissal/labour dispute adjudication in the Fair Work Commission. The list includes: Michael Stemberger Pty Ltd (Marsic), Budget Screens and Blinds and Awnings (Milne), Teekay Shipping (Australia) Pty Ltd (Ross), The Trustee for the Treehouse Trust (Towill), Lake Illawarra Pre-School and Kindergarten (Bond), Hitachi Power Tools Australia Pty Ltd (Steel), Specialist Wealth Group Pty Ltd (Marsh), Sydney Trains (Pirozzi), Modern Roof Restoration NSW Pty Ltd (Patel), Scantek Solutions Pty Ltd (Nazemi), Transdev WA Pty Ltd (Alford, Bharadwaj, Martin, McKeverne, Popley, Rothwell, Tamak, Yap), Fresh Cheese Co (Aust) Pty Ltd (Viceconte & Condello), Hydro Electric Corporation (Algie), Seljo NT Pty Ltd (Gupta), Kone Elevators Pty Ltd (Geary), MSS Security Pty Ltd (Carnes), Angola Coal (Capcoal Management) Pty Ltd (Herdman), Dingo Mini Diggers Pty Ltd (Behrendorff), Jon Cuskelly (VEga), Transit Australia Pty Ltd (Cattell), Urban Purveyor Group Pty Ltd (Varvarcel Molina), Ramsay HEalth Care Australia Pty Ltd (Capmbell), The Smith’s Snackfood Company Ltd (Cross), Light Industries Pty Ltd (as Trustee for the Light Industries Trust) (Durkin), Marina International Mackay Management P/L (Moore), Direction Employment and Training Limited (Eggers), The Motor Hospital Pty Ltd (Brunger), Communities @ Work Limited (Gulia), St John Ambulance Australia (NT) Inc (Sylva), Turnbull Brothers Yarram P/L (Watson), St Josepth’s Flexible Learning Centre (Cowper), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ellis, Finn, Harvey), Esso Australia Pty Ltd (Hatwell), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Oestamann, Patten), Central Cleaning Supplies (Aus) Pty Ltd (Littel), Linfox Australia Pty Ltd (Power), Wastetech Engineering Pty Ltd (Ferrari), TNT Australia Pty Ltd (Bigelow), Holcim (Australia) Pty Limited (Hodges), Allightsykes Pty Ltd (Cummings), Fleet Choice (Haddrick), Australian Crane and Machinery Pty Ltd (Shakotko), Complete Staff Solutions Pty Limited (Downey), Ausgrid Management Pty Ltd (Teng), Alex Perry Pty Ltd (Bashir), Sydney Trains (Delindi), Empire Scaffolding Pty Ltd (Watson), McGrath Foundation (Mclennan), Anderson & Andrews Construction Pty Ltd (Hurdis), Kingbuilt Homes Pty Ltd (Moloney), St Joseph’s Flexible Learning Centre (Cowper), Toll Transport Pty Lt (D’Aloisio), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ellis, Finn, Harvey, Oestamann, Patten), Royal Children’s Hospital (Naughton), Pedersen Industries Maryvale Pty Ltd (Collison), Patties Foods Ltd (Stephenson), Pedersen Industries Maryvale Pty Ltd (Collison), St John Ambulance Australia (NT) Inc (Sylva), P & SJ Shoobridge Trust (Martlew), Kimberley College Ltd (Ferguson (nee Thomson), BJP Laboratories Pty Ltd (Latt), Distinctive Tile Imports Pty Ltd (Lemon), Hitachi Power Tools Australia Pty Ltd (Steel), Serco Australia Pty Limited (Zammit), Farmhaul (Curtis), Turnbull Brothers Yarram P/L (Watson), PVMH Pty Ltd (Oswal), Esso Australia Pty Ltd (Hatwell), Junction Support Services Inc (Brook), Integrated Technologies Australia Pty Ltd (Lawther), Young’s Earthmoving Pty Ltd (Wilson), Pakenham Bowls Club Inc (Ithier), Roo & Oz Sheetmetal Pty Ltd (Ly), Arcare Pty Ltd (Singh), The Salvation Army (Barnes), The Trustee for the Blake Composite Unit Trust (Biasi), St John Ambulance Australia (NT) Inc (Sylva), Qantas Ground Services Pty Ltd (Kennedy), Bank of Queensland Limited (White & Duncan), Thomas Borthwick & Sons (Australia) Pty Ltd (Hunt), Central Queensland Tool Supplies Pty Ltd (White), University of Southern Queensland (Johnson Morgan), Uniting Care Queensland (Faustini), Watervalley Pty Ltd (Moreland), St George College Inc (Filippi), Bunnings (Mitchell), Kimberly-Clark Australia Pty Limited & Whicker and Another (Corman), Toll Personnel Pty Limited (Fotiadis), Oz Design Furniture Campbelltown P/L (Johnston), Apple Pty Limited (Rowley), Arcadis Australia Pacific Pty Ltd & Jackson and Another (Munro), Richard Vella Excavations and Landscaping (Phillips), DMS Maritime Pty Ltd (Baird), Modern Roof Restoration NSW Pty Ltd (Patel), Australian Crane and Machinery Pty Ltd (Shakotko), Whitehorse Truck Centre (AP Eagers) (Uncle), Busselton Golf Club Incorporated (O’Connell), Newmont Australia (Sears), Kaata Koorliny Employment and Enterprise Development Aboriginal Corporation (Currie), MACA Mining Pty Ltd (Ninyette), Launch Housing Limited (Nguyen), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ellis), Asaleo Care (Flamengo), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Finn, Harvey, Oestamann, Patten), MSS Security (Le), O-I Operations (Australia) Pty Ltd (Stallard), Commonwealth of Australia (De Masson), Queensland University of Technology (Mahoney), PWS Water Systems Pty Ltd (Burley), Queensland Rail Transit Authority (Shearer), St Johns Community Care Ltd (Tetupu), Consoldiated Insurances Pty Ltd (Cohen), RTA Yarwun Pty Ltd (Bayntun), Specialist Surgical Supplies (Pethick), Coles Supermarket Australia Pty Ltd (Baker), Pipe Worx Plumbing Pty Ltd (Dascola).
November 30, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – due to mutually difficult personal circumstances of all concerned in this matter appropriate to anonymise many of the details – respondent provides job placement services nationally for recipients of various Commonwealth Government benefits – applicant employed as Job Placement Officer – dismissed because she was not truthful to respondent about a conviction in August 2014 for Centrelink fraud when it asked her to complete a police check – applicant was convicted of two charges of obtaining a financial advantage, fined $3,000 and ordered to make reparations of $26,862.26 to the Commonwealth – other reason given for dismissal was that the work she performed, being in performance of a Commonwealth of Australia Deed meant that it was untenable for the company to continue to employ her – as a result of a concession given in the course of the proceedings the respondent no longer argued that the applicant’s continued employment was inconsistent with its obligation to the Commonwealth – applicant worked casually since 2011 at various branches of respondent – police check in March 2014 disclosed no matters of substance – offered full-time employment by respondent in 2015 – applicant was still covered by 2014 police check – in March 2016 respondent advised applicant that her police check was shortly to expire and that she was required to authorise a further check – applicant did not acknowledge request and was not made to comply with it as the respondent did not follow up – respondent again requested police check in April 2018 – three requests made – applicant gave authorisation only after the third request which led to the respondent obtaining information about her convictions – Commission held that the applicant did not respond to the respondent’s requests for authorisation knowing that she was expected to, and also that she was expected to positively appraise her employer of changes in her legal status – those two matters formed the basis of the respondent’s complaint – Commission found the respondent’s requests for a police check in 2016 was not followed up when the applicant failed to respond – took two increasingly firmer reminders for applicant to respond to the 2018 request – Commission in no doubt from the evidence that the applicant was avoiding the situation; that she knew what would be uncovered, and its significance to her employer; and that she avoided responding because of her knowledge of these matters – in Mahoney v White the Full Court held, in relation to an argument that employment ended when a relevant registration was withdrawn, that such employment does not axiomatically end, in that case, with the cancellation of a legislatively required registration, but with a decision by the employer which amounts to termination at the initiative of the employer – Commission found the respondent terminated the applicant at its initiative pursuant to a discretion it had about the situation – it could have chosen other avenues, but did not – respondent also argued that the failure by the applicant to comply either with the Policies or its directions to provide it with information was serious misconduct, being ‘a breach of the fundamental term of the contract of employment that obliges an employee to comply with the lawful and reasonable directions of the employer’ [B, C and D v Australian Postal Corporation T/A Australia Post] – Commission not persuaded the applicant’s actions amounted to a breach of the standard advocated by the respondent, or that her actions were serious misconduct – applicant was correct in apprehending that dire things for her employment would flow from the respondent’s knowledge of her convictions, given that was precisely what occurred – her fears about disclosure must therefore be seen as having been reasonably held – in the ordinary course the applicant’s tardiness in responding to the respondent’s requests for consent for a police check or, if she was obliged to do so, to respond and to positively appraise her employer of changes in her legal status, may be sufficient for her to be warned about the consequences of future transgressions, but they are insufficient to be found to be the basis of a sound, defensible and well-founded decision for dismissal – Commission found no valid reason for dismissal – found the applicant’s dismissal was harsh, in that the decision to dismiss her was disproportionate to her conduct; that it was unjust, since the respondent’s decision was predicated upon false or faulty reasoning about its obligations to the Commonwealth; and it was unreasonable, since the respondent did not sufficiently consider the applicant’s explanation for her conduct – found applicant was unfairly dismissed – remedy – considered that the applicant chose to hide information from her employer, by actively not disclosing it and that this was on several occasions, leans against reinstatement being appropriate – her actions amount in retrospect to a signal from her that she did not trust her employer with the information – persuaded that reinstatement in the circumstances was not appropriate – found compensation was appropriate – Commission assessment of the anticipated period of employment was no less than two years (24 months) – one-third deduction for misconduct (-8 months) – 25% deduction for contingencies (-6 months) – 5% deduction for mitigation (-1.2 months) – 8.8 months remaining – applicable compensation cap is the total amount of remuneration she received during the 26 weeks immediately before the dismissal – ordered an amount equivalent to the total amount of remuneration the applicant received, including superannuation, during the 26 weeks immediately before her dismissal, with the payment to be taxed according to law. KB v The Agency
November 30, 2018
ANTI-BULLYING – likely to continue – ss.789FC, 789FF Fair Work Act 2009 – application for an order to stop bullying – applicant an employee of MECCA Brands P/L t/a Mecca Cosmetica since September 2015 – submitted she had been bullied by several colleagues in the course of her employment – applicant submitted that the alleged bullying took the form of a series of incidents including verbal abuse, harassment and the leaking of private medical information – employer introduced a number of initiatives in response to the applicant’s claims including relocating the persons alleged to have carried out the bullying behaviour (the Group) and reorganising break times to eliminate the chance of contact between applicant and the Group – employer also commissioned a third party investigation into the allegations and rolled out compulsory behavioural bullying and harassment training – Commission found that, even assuming that bullying behaviour did in fact occur, satisfying the first jurisdictional prerequisite of s.789FF(1)(b)(i) of the FW Act, the employer had done their utmost to eliminate the risk of bullying and had succeed in doing so – Commission found no jurisdiction to make an order to stop bullying – application dismissed. Ms Mekuria
November 30, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute arising under TransGrid Employees Agreement 2013 – agreement expired and replaced – respondent directed employee to relocate work location – whether direction reasonable and lawful – whether relocation direction resulted in unreasonable hardship – applicant contended unreasonable hardship citing increased costs, fatigue issues, additional travel time, adverse impacts on employee and his family – mitigating measures applied to relocation including Field Allowance, Fatigue Management Procedure, flexible start and finish times – respondent challenged jurisdiction – whether dispute continued after replacement of agreement – whether principles in Stephenson applied – whether dispute about workplace safety and disciplinary action – Commission found differences in statutory schemes sufficient to find Stephenson does not apply – other jurisdictional objections dismissed – dispute able to be determined by Commission – Commission considered meaning of unreasonable hardship – accepted that additional travel time, extra costs and loss of family time adversely impacted on employee – found hardship not as excessive as contended – relocation direction did not impose unreasonable hardship – application dismissed. Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations P/L t/a TransGrid
November 30, 2018
GENERAL PROTECTIONS – identity of employer – ss.365, 586, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission declined to allow an amendment to correct an error in the description of the appellant’s former employer – appellant used trading name of related American company with Australian company ABN and contact details – grounds of appeal included that the Commission approached the issue by asking a wrong question, namely whether the mistake was induced by the employer or whether there was a rational explanation for the mistake – s.586(a) of FW Act provides that the Commission may ‘allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate’ – discretionary power conferred by s.586(a) is broad, and includes but is not confined to the correction of mistakes – an appeal from a decision to exercise, or to refuse to exercise, a discretionary power must involve the demonstration of error in the decision-making process at first instance – Full Bench satisfied the Decision at first instance was attended by appealable error in a number of respects – Commission did not take into account the ABN/ACN or the trading name, but simply assumed that the name of the entity given identified it as the American corporation – not reasonably open for the Commission to conclude that the description of the respondent in the s.365 application was not the subject of an error – permission to appeal granted – appeal upheld – Decision and Certificate quashed – s.365 application amended to substitute ‘HDR Pty Limited’ for ‘HDR Inc.’ as the name of the respondent – matter referred to McKenna C to deal with in accordance with s.368. Appeal by Sinden against decision of Kovacic DP of 7 September 2018 [[2018] FWC 5643] Re: HDR Inc.; HDR P/L
