TERMINATION OF EMPLOYMENT – remedy – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – employee awarded $10,951.87 in decision at first instance (compensation decision) after Commission found he was unfairly dismissed in substantive decision [[2018] FWC 1336] – grounds of appeal that Commission erred in method used to calculate compensation and in finding that employee’s employment would have continued for six months – Full Bench observed decision at first instance determined dismissal of employee inevitable – Full Bench held Commission’s finding involved both an error of principle and significant error of fact – permission to appeal granted – appeal upheld – compensation decision and order quashed – upon rehearing Full Bench considered personal circumstances of respondent – determined that an order for the payment of six weeks’ compensation was appropriate – ordered compensation of $6,730.77. Appeal by Hanson Construction Materials P/L against decision of Spencer C of 9 August 2018 [[2018] FWC 4369] Re: Darren Pericich
November 26, 2018
ENTERPRISE BARGAINING – scope order – ss.185, 238, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission dismissed the AMWU’s application for a scope order as it was found that bargaining had not commenced – appeal on grounds that Commission erred in determining that an agreement had been made following 2017 vote as there was no valid request for vote in accordance with s.182(2) of the FW Act – grounds for appeal also included that even if an agreement had been made, engagement in bargaining had commenced as a result of correspondence from Broadspectrum – decision of Full Bench majority – considered whether 2017 vote to approve proposed agreement resulted in agreement being made in accordance with s.182(1) – Uniline considered – found notice of employee representational rights had not been issued to each employee who would be covered by the proposed 2017 agreement – held Commission erroneously found that no bargaining was occurring and AMWU application was not considered in accordance with FW Act – Full Bench majority found that bargaining was occurring – permission to appeal granted – appeal upheld – decision at first instance quashed – application remitted to Asbury DP for rehearing – decision of Full Bench minority – found no appealable error in dismissal of AMWU’s application – would grant permission to appeal and dismiss the appeal. Appeal by Australian Manufacturing Workers’ Union against decision of McKinnon C of 4 July 2018 [[2018] FWC 3974] Re: Broadspectrum (Australia) P/L
November 21, 2018
The Fair Work Commission lawlist for today is: Air Change Australia Pty Ltd (McCarthy), Clinical Laboratories Pty Ltd (Street), Healthcare Australia (Melo Gaete), St Joseph’s Flexible Learning Centre (Cowper), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ellis, Finn, Harvey, Oestamann, Patten), East Arnhem Regional Council (Deacon), Olympic FC (Sottile), Mike & Jan Pty Ltd (Passey), The Trustee for Seven Kay Investments Trust (Lewis), Safe Places Community Services Limited (Watson), Maritimo (Wolland), N & HM Cooper Motor Search (SA) & Car Clearance Centre (SA) (Badcock), Specialist Surgical Supplies (Pethick), Airservices Australia (Jones), Commonwealth Bank of Australia (Nguyen), Inglot Cosmetics Pty Ltd (Pavert), Bellagon Pty Ltd (Riddle), Secom Security Australia (Key), BG & TR Pty Ltd (Crisford), Winnaa Pty Ltd (Roos), G8 Education Limited (Wood), Japara Healthcare Limited (Conian), Sargeant Transport Pty Ltd (Costello), Sita Coaches Pty Ltd (Middedge, Small), Abbe Corrugated Pty Ltd (Sabani), Akkari Tilling Pty Ltd & Akkari Polishing (Gill), MECWA (Dudash), Visy Packaging Pty Ltd (Cromble, Stevens), Ausdrill Ltd (Julitz), National Australia Bank Limited (Vasquez), Gunlake Concrete NSW Pty Ltd (Siminsky), Byron Ventlink Pty Limited (Robinson-Gale), BHP Coal Pty Ltd (Macklin).
November 21, 2018
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – application lodged seven days after 21 day time period – whether exceptional circumstances exist – applicant initially lodged unfair dismissal application 13 days after dismissal – applicant not employed for minimum employment period – unfair dismissal application beyond jurisdiction – applicant discontinued unfair dismissal application – asked Commission staff whether general protections application had a minimum employment period requirement – Commission staff confirmed no minimum employment period requirement – applicant sought legal advice and subsequently lodged general protections application – applicant submitted that respondent dismissed him because he made numerous enquiries regarding his pay and other operational and safety issues – Commission satisfied general protections application is not without merit – satisfied applicant acted reasonably promptly to lodge general protections application – satisfied there was an acceptable explanation for the delay – satisfied applicant acted promptly initially in challenging his dismissal by lodging unfair dismissal application – Commission satisfied there were exceptional circumstances – application for an extension of time granted – application to be listed for conference. Green v Bilco Group P/L
November 21, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a community night patrol officer – dismissed for untruthfully recording his attendance at work – Commission satisfied applicant received counselling on a number of issues during his employment – satisfied applicant engaged in misconduct in incorrectly claiming time he had not worked – held applicant’s conduct was not above reproach and some sanction was warranted, however Commission not convinced that the conduct provided a valid reason for dismissal – not satisfied applicant was afforded procedural fairness – no valid reason for dismissal – process followed lacking in almost every respect – found dismissal was both harsh and unjust – applicant unfairly dismissed – remedy to be considered. Wunungmurra v East Arnhem Regional Council
November 21, 2018
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order that industrial action not occur and not be organised – order directed to CFMMEU, certain representatives of CFMMEU and service employees who have CFMMEU as bargaining representative (employees) – whether periods of travel before and after notified stoppage (impugned conduct) was ‘industrial action’ within meaning of s.19 of FW Act – industrial action impending or probable – employees indicated intention to participate in stoppages of work – employees left customer jobsites before notified commencement time of two hour stoppage to travel back to branch for stoppage – employees then travelled back to customer’s site after cessation of stoppage – employees paid for travel time – impugned conduct not work customarily performed by employees – employees had, and continue to have, a concern about a risk to their health or safety – Commission found employees concerns not reasonable upon evidence – no imminent risk – impugned conduct not based on this concern – health and safety exception not established on evidence – found impugned conduct was industrial action – order issued. Hitachi Construction Machinery (Australia) P/L v Construction, Forestry, Maritime, Mining and Energy Union
November 21, 2018
TERMINATION OF EMPLOYMENT – contract for specified season – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that appellant was a seasonal employee and finished work when the season ended – Commission found appellant not dismissed – grounds for the appeal included that the Commission did not distinguish between an employee contracted for a specified season and an employee engaged for multiple seasons, that Commission incorrectly applied s.382(2)(a) of the FW Act, and failed to consider continuity of service provisions in enterprise agreement and that appellant was denied procedural fairness – the Full Bench found Commission took the matters into account – Navitas considered – found procedural fairness was upheld – application for the admission of fresh evidence refused – Full Bench not satisfied that any of the appellant’s grounds of appeal had been made out – permission to appeal granted – appeal dismissed – each party to bear their own costs. Appeal by Galbraith against decision of Spencer C of 7 December 2017 [[2017] FWC 4410] Re: Wilmar Sugar P/L t/a Wilmar Sugar
November 21, 2018
Thirty-three unfair dismissal/labour dispute applications are currently awaiting a hearing in the Fair Work Commission. The list includes: Ferrymen (Port Macquarie) Pty Ltd (Condie), BHP Coal Pty Ltd (Macklin), Toyota Material Handling Australia Pty Limited (Jarvis), FOODORA Australia Pty Ltd (Klooger), Holy Family Services Pty Ltd (Telling), Western Motorcycles Pty Limited (Bognar), NJ Construction Pty Ltd (Sudheer Kossery), Healthe Care Australia Pty Ltd (Smart), Sydney Trains (Zidan), Integrated Technologies Australia Pty Ltd (Lawther), Commissioner of State Revenue (Parolin), Freedom Pools & Spas (Harrison), The Salvation Army (Barnes), R M Begg Kyneton Aged Care Inc (Dunbar), Clover Installers Pty Ltd (Kalvoda), Ulan Coal Lines Limited (Wicks), VicGarden Parking Pty Ltd (Mighton), Celebral Palsy League of Queensland & Hellyer), KDR Victoria Pty Ltd (Davila), Australian Crane and Machinery Pty Ltd (Shakotko), Metcash Trading Limited (Kalweit), CEVA Logistics (Australia) (Hillman Te Moananui), AHS Hospitality Pty Ltd (Bilsborough), Glencore Mount Isa Mines (Haigh), Tabcorp Holdings Limited (Costelloe), Cerebral Palsy League of Queensland & Hellyer (Wilson), MSS Strategic Medical and Rescue (Wardle), Olympic FC (Sottile), Colliers International (SA) Pty Ltd (McCouaig), Eldercare Inc (Kennedy), Crossways Lutheran School Ceduna Association Inc (Puccio), Ausmech Solutions Pty Ltd (Exelby), Bunnings (Mitchell).
