A lazy day is before the Fair Work Commission. A mere 16 unfair dismissal/labour dispute matters await hearing. The list is: HCL Australia Services Pty Limited (Amba & Wilson), Marumina Pty Ltd (Arja), Oz Design Furniture Campbelltown P/L (Johnston), Campbelltown Radio Pty Ltd (Hand), Bay Explorers Early Learning (Jensen), Corridors College Limited (Wallis), Gemini Accident and Repair (Williams), Trinh Giau Family Trust (Nguyen), Corridors College Limited (Wallis), Basils Farm: McMeckan Consulting Pty Ltd McMeckan Family Trust (Harrison-Buckby), Rocbrix Pty Ltd (Morgan), Wilson Security Pty Ltd (United Voice), France Field Family Trust GFP Group Pty Ltd (Chyzynski), Department of Defence (Geddes), Qantas Ground Service Pty Ltd (Kennedy), Sunstate Airlines (Qld) Pty Ltd (Cook).
October 19, 2018
INDUSTRIAL ACTION – order against industrial action – pattern bargaining – ss.428, 604 Fair Work Act 2009 – appeal – Full Bench – the appellant is a bargaining representative for certain employees employed by each WGC and Boom (collectively the respondents) – the appellant has been advancing claims for proposed enterprise agreements with WGC and Boom – applications made by WGC and by Boom for orders under s.418 of the FW Act in respect of notices given by the appellant of purported protected industrial action, which the respondents contended was not, or would not be protected action – the respondents maintained that the appellant was engaging in a course of conduct that was pattern bargaining within the meaning of s.412 – at first instance the Commission determined that the appellant was, for the purposes of s.412(1)(b), engaged in a course of conduct that involves seeking common terms to be included in proposed enterprise agreements with WGC and Boom – the Commission concluded the appellant was not genuinely trying to reach agreement with either Boom or WGC – made final orders that industrial action must stop, not occur and not be organised – principal challenge to the decisions and orders in each appeal concerns the Commission’s conclusion that the appellant’s course of conduct engaged with s.412(1) – 10 grounds of appeal – grounds 9 and 10 concern the orders made and contend that because the Commission did not identify the industrial action found to be threatened, or the industrial action to be stopped by the orders, and because the period of operation of the orders was three months which in the circumstances was unreasonable, irrational and plainly unjust, the orders were beyond jurisdiction and are invalid – Full Bench satisfied that grounds 1 – 5, grounds 7 – 8 to the extent that they relate to the first 5 grounds, and grounds 9 and 10 enliven the public interest with the consequence that permission to appeal must be granted – this decision to deal only with grounds 9 and 10 – other grounds, particularly grounds 1 and 2, are complex and will require some lengthy consideration before the Full Bench is able to announce its decision – Full Bench will proceed to examine grounds 9 and 10 on the basis that the Commission was correct (without deciding that issue) in concluding that the appellant and engaged in a course of conduct that is pattern bargaining within the meaning of s.412 with the consequence that the industrial action in relation to which orders were sought by WGC and Boom was not or would not be protected industrial action – appellant contended that the orders did not identify and were not directed to the industrial action contained in the notices – meaning of industrial action – Esso Australia P/L v The Australian Workers’ Union considered – held that the power to make an order under s.418 is exercisable if the Commission concludes that the existing or potential industrial action is not, or will not be protected and then to order that the particular existing or potential industrial action stop, not occur or not be organised as the case requires – the orders made by the Commission plainly distinguish action which is a ‘strike’ from action that is an ‘other stoppage of work’ – industrial action of which notice was given was ‘an indefinite strike’ – Full Bench held that evidence and material before the Commission did not support a conclusion that beyond an ‘indefinite strike’ there was any other stoppage of work that was happening, or threatened, impending or probable, or being organised – it follows that the Commission erred in making an order extending to any ‘other stoppage work’ beyond the indefinite strike – Full Bench considered it self-evident, given the basis for concluding that the industrial action was not or would not be protected action, that the circumstances which led to that conclusion might change over a relatively short period – would be unsurprising in the face of the findings made by the Commission that the appellant might take steps to alter the terms it is seeking to include in a proposed agreement and/or alter the approach that it takes in bargaining with WGC and with Boom in order that its conduct is no longer caught by s.412 – Full Bench held that in the circumstances of this case, s.418(1) only required orders to operate for a period sufficient to ensure that the strike not be organised and that the threatened strike not occur – a period of operation of three months was clearly excessive – Full Bench considered that the Commission was in error in fixing a period of operation of three months in respect of each order – held the view that a period of operation of two weeks in the circumstances would be more than sufficient to ensure the strike not be organised and that the threatened strike not occur – appeal upheld on grounds 9 and 10 – Full Bench propose to vary the decision and orders made by the Commission to the extent necessary to give effect to its decision – Full Bench will separately and at a later date issue its decision on the remaining grounds of appeal. Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decisions of Dean DP of 31 August 2018 [[2018] FWC 5101], and 6 September 2018 [[2018] FWC 5634] Re: Boom Logistics Limited; WGC Crane Group P/L
October 19, 2018
GENERAL PROTECTIONS – multiple actions – ss.365, 725, 733 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged on 23 May 2018 – on 24 May 2018 applicant lodged a claim in the Magistrates Court of Queensland (Court) against 10 defendants (including the respondent) – sought the Court deal with the matter as an ‘Employment Claim’ and claimed the amount of approximately $150,000 – respondent raised a jurisdictional objection on the basis that s.725 of the FW Act barred the applicant from pursuing the s.365 application as a result of lodging the claim in the Court – purpose of s.725 is to prevent a party from ‘double dipping’ in circumstances where they may make multiple applications seeking a variety of remedies – s.732 applies to an ‘application or complaint under another law’ (which includes the law of a State) in relation to the dismissal – s.733 provides that a reference to an application of a complaint in relation to a dismissal ‘does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled to as a result of the dismissal’ – Commission accepted applicant’s submission that the claim within the Court is a claim which seeks payment of entitlements due under the contract of employment, and thus falls within the scope of s.733 – Commission found the Court claim cannot be properly described as an application or complaint which s.732 would preclude – jurisdictional objection dismissed – further conference to be held to determine if the dispute can be resolved other than by arbitration. Greenslade v Totally Aussie Security (QLD) P/L and Associated Entities t/a TAS Security
October 19, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – whether clause of the Visy Packaging Pty. Ltd. (Cartons – Broadmeadows) AFMEPKIU/ETU Enterprise Agreement 2017 relating to provision of canteen facilities was permitted matter – Commission not satisfied that obligation by employer to maintain catered food services affected employees within their capacity as employees – not satisfied that obligation to maintain subsidiary arrangement between employer and caterer not a permitted matter – found clause not permitted matter. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Visy Packaging P/L
October 18, 2018
A supplementary Fair Work Commission hearing list for today includes: Rew Bros Pty Ltd (Mabior), Chapman Road Enterprises (Lawler), Campbelltown Radio Pty Ltd (Hand), Toll Transport Pty Ltd (Leonard), Hyne and Sons Pty Ltd (Crampton), Floor Grinding Services Pty Ltd (O’Connell), TC’s Take Away (Kilby), Australian National University (Alazab), Water NSW (Olsson), Chapman Road Enterprises (Lawler), Scavenger Supplies Pty Ltd (Pemberton), DET Department of Education (Jardine), REIV (Suhag), Floor Grinding Services Pty Ltd (O’Connell), Employment Advocacy Solutions Pty Ltd (Buttress), Mount Isa Mines Limited (Foot), The Capulet (Cable).
October 18, 2018
The Fair Work Commission will today hear an additional 29 unfair dismissal/labour dispute applications. St George College Inc (Filippi), Sam Technology Engineers Pty Ltd (Bernadou), Adlinda Bakehouse (Alien), Colliers International (SA) Pty Ltd (McCouaig), Georgiadis Lawyers Pty Ltd (Hutt), RFDS Western Operations Pty Ltd (Schouten), Coles Supermarkets Australia Pty Ltd (Schluter), The Corner Espresso House (Bigby), Australian Leisure and Hospitality Group Pty Limited (Slemint), One Key Workforce Pty Ltd (Haigh), Bama Services (Richardson-Steele), Raine and Horne Woodford (Rowlands), North End Tyres Pty Ltd (Al-Dawood), Sam Technology Engineers Pty Ltd (Bernadou), Esso Australia Pty Ltd (Hatwell), Keys and Remotes Pty Ltd (Lao), VicRoads (Jachowski), Coles Supermarkets Australia Pty Ltd (Pangly), Infosys Limited (Sharma), Coffey Services Australia (Abram), The Griffin Coal Mining Company Pty Ltd (Garner), Transport for NSW (Fussell), Commonwealth Bank of Australia (Zepidis), Sam Technology Engineers Pty Ltd (Bernadou), SERCO Justice & Immigration Services (Zammit), Asset Restoration Pty Ltd (Georges), Bristow Helicopters Australia Pty Ltd (Packington), Raine and Horne Woodford (Rowlands), Parramatta Mission (Pye).
October 17, 2018
The lawlist for the Fair Work Commission today includes 32 applications involving unfair dismissal/labour dispute. The full list is: Wandiyali (Kelly), Wandiyali Aboriginal and Torres Strait Islander Incorporated (Richards, Van Eyk), Lopigear Pty Ltd (Neary), Durra, Markelian (Allbon), Qantas Airways Ltd (Edmunds), Tabcorp Holdings Limited (Hancock), Spandex Asia Pacific Pty Ltd (Irvine), Sydney Trains (Pirozzi), Bliss Management Pty Ltd (Lozano), Toll Personnel Pty Ltd (Taulapapa), State of Victoria as represented by the Department of Treasury and Finance (Parolin), Serendipity (WA) Pty Ltd (Hoey), United The Grand Lodge of Antient Free and Accepted Masons of Victoria (McAnally), Step 5 Pty Ltd (Mercier), Nationwide News Pty Ltd (Naorin), Antonine College (Ilkovska), Modinex Manufacturing Pty Ltd (Watkins), R M Begg Kyneton Aged Care Pty Inc (Dunbar), Worldmark Pty Ltd (Georges), V/Line Pty Ltd (Lothian), Maroondah City Council (Tai-Rakena), SellYourCarFast Australia Pty Ltd (Fernandez), Programmed Skilled Workforce (and related bodies corporate within the Programmed Group of Companies) (Fitzpatrick), Canberra Greyhound Racing Club Inc (Peck, Thomas), Winnaa Pty Ltd (Roos), Modinex Manufacturing Pty Ltd (Watkins), Safe Places Community Services Limited (Watson), The Branding Office (McKechnie), Queensland Rail Transit Authority (Shearer), Holden (Reinke).
October 16, 2018
The unfair dismissal/labour dispute law list in the Fair Work Commission today includes the following: Concrete Employment Services Pty Ltd (Wittwer), Utilities Management Pty Ltd (Bushten), Queensland University of Technology (QUT) (Escobar), Jacobs Well Eggs Farm (Krishma), National Real Estate Solutions Pty Ltd ATF the NRS Unit Trust (Mitchell), CW & CG Dickinson (Taylor), Youfoodz Pty Ltd (Swanton), Cigarette & Gift Warehouse (Needham), Queensland Reconstruction Authority (Stone), Weatheralls Wodonga Hotel Proprietary Limited (Voncina), Global Care Group Inc (Stockton), Allan Hall Business Advisors Pty Ltd & Parish and Another (Moir), Qube Holdings Limited (Gattuso), Fortis Law Group Pty Limited (Tayyar), Southern Metropolitan Cemeteries Land Manager (Azzopardi), Marumina Pty Ltd (Arja), The Whole Box n Dice (Hall), Qantas Airways Ltd (Meintanis), Qantas Airways Ltd (Oei, Whippy), HD Projects Pty Ltd (Fasavalu), Communities@Work (Abosede), Port of Newcastle (McShane), Cedar Place Aged Care Facility Limited (Hall).
