The lawlist involving unfair dismissal/contract dispute awaiting a Fair Work Commission hearing includes: Essential Energy (Beltrame), QUBE Logistics (SB) Pty Ltd (Greenfield), Advanced Laundry Systems (Lancaster), RM & RM Services Pty Ltd (Harris), Gordon Riley Pty Limited (Britton), Midway Metals Pty Ltd (Pham), Team Roof (McCallum), Pilbara Iron Company (Services) Pty Ltd (Tito), Hank International (Poljakovic), Industrial Foundation For Accident Prevention (Florenca), KDR Victoria Pty Ltd (Templeton), HYDE, NYSSA Jane (Hayter), Australian Government Department of Human Services (Gadzikwa), L.U. Simon Builders Proprietary Limited (Anderson), Next Business Energy (Bolanos), ANS Southern Pty Ltd (Judd), Maritimo (Wolland), Midway Metals Pty Ltd (Pham), Telstra Corporation Limited (Maher), Farmhouse Furniture Australia P/L (Braack), Local Fire Pty Limited (Halbert), Country Acres (Hall), Gordon Riley Pty Limited (Britton), Lake Illawarra Pre-School and Kindergarten (Bond), Woolworths Group Limited (Hua), HDR Inc & HDR Pty Ltd (Sinden), Lothlann Pty Ltd (Hanna), Oki Data Australia Pty Ltd (Walsh), Serco Australia Pty Limited (Morgan), Bronze Hospitality (Hansson), Team Roof (McCallum), Salini Australia Pty Ltd (White), Stows Waste Management (Zaia), James Reynolds (Arklay), Scope (Aust) Ltd (Samarasekera), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ellis, Finn, Harvey, Oestamann, Patten), Leading Edge Maintenance (O’Bryan), Migrant Resource Centre North-West Region Inc (Sharma), Victoria Police (Davies), A1 Colon Hydrotherapy Brisbane (Marambio), Modinex Manufacturing Pty Ltd (Watkins), The Motor Hospital Pty Ltd (Brunger), UQ Biological Resources (Mao), Community Accommodation & Respite Agency Inc (Noble).
November 12, 2018
Seventeen unfair dismissal/contract dispute applicants will be heard in the Fair Work Commission today: CVEM Security Group Pty Ltd (Martinelli), Ausgrid Management Pty Ltd (Arampamoorthy), Rui Garces (Pradhan), Hillsbus Co. Pty Ltd (Bajwa & Fuentes and Others), Monash Health (Sullivan), KDR Victoria Pty Ltd (Davila, Templeton), Suncorp Staff Pty Ltd (Vautin), ANZ Banking Group Limited (Kaur), Allity Aged Care Pty Ltd (Moloney), Mentone Girls Grammar (Bernard), VDROP (Dharumasena), South Pacific Health Club Pty Ltd (Cagran), Australian Leisure and Hospitality Group Pty Ltd (Harston), Negri Contractors (Vic) Pty Ltd (Misconi), Airservices Australia (Jones), Community Accommodation & Respite Agency Inc (Noble).
November 12, 2018
INDUSTRIAL ACTION – suspension of protected industrial action – endangering life – s.424 Fair Work Act 2009 – application to suspend or terminate protected industrial action to be taken by members of the TWU employed within Broadspectrum’s Court Security and Custodial Services operations in Western Australia – application in response to a notice of industrial action sent by the TWU to Broadspectrum on 29 October 2018 – Commission accepted evidence that each of the bans threatened the health and safety or welfare of part of the population, being prisoners in the care of Broadspectrum’s staff, Broadspectrum’s staff themselves, other persons working within the vicinity of courts and hospitals and members of the public attending courts and hospitals where prisoners escorted by Broadspectrum’s staff were present – satisfied that the protected industrial action would threaten to endanger the personal safety, health or welfare of part of the population – found suspension of the industrial action was appropriate – protected industrial action to be suspended until 9 January 2019. Broadspectrum (Australia) P/L v Transport Workers’ Union of Australia
November 12, 2018
ENTERPRISE AGREEMENTS – termination of agreement – Sch. 3, Item 16 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – ss.225, 226 Fair Work Act 2009 – application to terminate the Godfreys Employee Collective Agreement 2009 – collective agreement-based transitional instrument – agreement approved by Workplace Authority pursuant to s.327 of the Workplace Relations Act 1996 (Cth) sometime between January 2009 and 26 May 2009 – last wage increase provided for under the terms of the agreement was in July 2011 – agreement has passed its nominal expiry date – Commission satisfied it was not contrary to the public interest to terminate the agreement – appropriate in the circumstances of this case to grant the application – ordered termination of agreement – termination will be prospective and take effect on 29 December 2018. Godfreys Employee Collective Agreement 2009
November 12, 2018
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that the employee had been unfairly dismissed – appellant sought permission to appeal against jurisdictional decision of March 2018 as well as the merits and compensation decision of June 2018 – jurisdictional appeal lodged 86 days outside of 21 day time limit – Full Bench rejected appellant’s submission that the jurisdictional decision was in the nature of a preliminary or interlocutory decision – application to extend time for filling appeal against jurisdictional decision rejected – Full Bench agreed that appeal of merits and compensation decision raises important matters in relation to employees engaged by labour hire companies – permission to appeal granted – appellant submitted that Commission failed to pay sufficient regard to the Temporary Employment Agreement (TEA) and that the employee’s assignment could be terminated at any time at the discretion of the host employer – submitted that the actions of the employer amounted to a valid reason for termination as employee was unable to perform the inherent functions of their role – appellant also submitted that they intended to find employee an alternative assignment but could not and that the employee had walked away from her employment – Full Bench found decision at first instance consistent with the approach adopted in Adecco, Pettifer and Tasports – found that the TEA contained no assignment or conclusion date and that employee’s assignment was extended twice without any indication when it may end – satisfied that Commission correctly described the employee’s work with the employer host as ‘an indefinite duration’ – rejected appellant’s submission that employee ended her employment – found no substance to appellant’s claim of an alleged failure to provide adequate reasons for decision at first instance – appellant submitted that the amount of $15,000 in compensation was too high in relation to the temporary nature of the appellant’s employment – Full Bench satisfied with Commission’s application of Sprigg given findings of there being no valid reason for dismissal and that the work performed was for an indefinite period – grounds of appeal not made out – appeal dismissed – corresponding stay order to be set aside. Appeal by Spinifex Australia P/L t/a Spinifex Recruiting against decisions of Hamberger SDP of 13 March 2018 [[2018] FWC 1363] and 21 June 2018 [[2018] FWC 3686] Re: Tait
November 12, 2018
INDUSTRIAL ACTION – order against industrial action – ss.418, 424 Fair Work Act 2009 – two applications made by Broadspectrum (Australia) P/L – s.418 application for order that unprotected industrial action by employees stop – in alternative s.424 application for order to suspend or terminate protected industrial action – parties were in process of negotiating terms of enterprise agreement – protected action ballot order (PAB) issued on 13 June 2018 – prior Suspension Order issued to TWU suspending three forms of industrial action until 13 October [PR609847] – on 11 October 2018 TWU issued notice to applicant of industrial action of Paperwork Ban – on 22 October 2018 TWU issued applicant notice of industrial action for specific employees to stop work for four hours on 26 October 2018 – applicant submitted current and threatened industrial action needed to have commenced on or prior to 14 September 2018 to be authorised – therefore no employee claim action – Suspension Orders significant because primary question for s.418 application was whether Suspension Order extended to 14 September 2018 as current and threatened industrial action could have commenced in timeframe in FW Act therefore protected – Paperwork Ban and Industrial Action-Work Bans different types than in August Notice and Suspension Order – TWU unable to satisfy Commission that order suspending ’employee claim action’ was made resulting in extension of authorisation period in s.429 – Paperwork Ban and Industrial Action-Work Bans not examples of industrial action authorised by PAB – therefore cannot be employee claim action – Paperwork Ban constituted unprotected industrial action and stop order made under s.418 until 30 November 2018 – s.424 application dismissed. Broadspectrum (Australia) P/L v Transport Workers’ Union of Australia
November 12, 2018
CASE PROCEDURES – interim order – ss.589, 596 Fair Work Act 2009 – application for an order to stop bullying – applicant requested interim order to prevent respondent from taking disciplinary procedures – respondent opposed interim order application – contended no basis for making of interim order – action taken was reasonable management action taken in a reasonable manner – applicant contended undertakings referenced by respondent were insufficient and inappropriate – respondent subsequently confirmed in written undertakings that a disciplinary process would be paused pending resolution of complaints – applicant would be notified of any change to employment and respondent would not take action to implement change until resolution occurred – Bayly principles adopted – Commission found balance of convenience against of making interim order not triggered – complexity and associated efficiency in immediate matter absent – applicant granted liberty to make further application – substantive application assigned to Member for conference to be conducted. D.K.
November 12, 2018
TERMINATION OF EMPLOYMENT – demotion – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection from respondent that applicant not dismissed – applicant employed as Mechanical Service Technician – applicant remained employed by respondent but in different role with reduced responsibilities and remuneration – respondent contended that they were authorised to demote applicant through clause in contract – changes authorised by contract of employment not relevant to question of whether employee was dismissed – nevertheless contract did not authorise changes made to remuneration and duties – reasonable person would not have understood term in contract to mean respondent could unilaterally demote as a means of disciplining for misconduct – demotion used to discipline not meet business opportunity – respondent contended custom and practice resulted in incorporation of express term in contract – evidence did not establish existence of custom – respondent contended demotion was at suggestion or request – applicant did not make offer of demotion capable of acceptance – no certainty of terms – demotion at respondent’s initiative – jurisdictional objection dismissed – matter to be listed for hearing on merits.Harrison v FLSmidth P/L t/a FLSmidth P/L
