TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant engaged as a Health Professional (Paramedic) – worked at the Mount Arthur Coal Mine operated by BHP – respondent was contracted by BHP to provide onsite drug and alcohol testing of workers and contractors engaged at the Mine – two incidents of alleged inappropriate conduct of the applicant during workplace drug and alcohol testing procedures – applicant included BHP in correspondence regarding employment matters between the applicant and the respondent – applicant dismissed by respondent after Mine site access removed by BHP – Commission found reasons given for dismissal could represent valid reason however no evidence to support them – found stated reasons for dismissal did not represent the true reason for dismissal – actual reason for the dismissal was the removal by the respondent’s client (BHP) of Mine site access for the applicant – exercise of a contractual right of a third party – found dismissal of the applicant was without valid reason involving established misconduct or capacity inadequacy – involved an entirely unjust and unreasonable process – found dismissal was harsh, unjust and unreasonable – ordered compensation of $7,648. Hocroft v Verifact P/L
October 10, 2018
The Fair Work Commission industrial dispute law list today includes: The Tea Centre Pty Limited (Patel), Sydney Credit Union Ltd (Kumar), 2Connect, Youth and Community Inc (Onuoha), Metwide Communications (Thomas), Peduba Cleaning Services (Zakria), Phytomed Australia Pty Limited (Grant), Gumala Enterprises Pty Ltd (McCulloch), Salini Australia Pty Ltd (Latham), TIOBE Pty Ltd (Chen), Kaytee Electrical & Sheetmetal Engineering Service (Le), Rincon Australia Pty Ltd (Rabel), Department of Justice and Regulation (Tay), Steveaugh T/A (Wright), Coles Supermarkets Australia Pty Ltd (Pangly), Queensland University of Technology (Mahoney), Energy Queensland Limited (Ward), BHP Coal Pty Ltd (Powling), The Trustee for the Bassem Pharmacy Trust (Taylor), Seacom Security Australia (Key), Utilities Management Pty Ltd (Bushten), N & HM Cooper Motor Search (SA) & Car Clearance Centre (SA), HACCP International Property Services (AlkemadE), Global Mining Services Pty Ltd (Connolly-Manga), Bacalar Pty Limited (Young), Port Authority of New South Wales (McDonald).
October 9, 2018
Sixteen unfair dismissal/ contract dispute applicants await hearing before a Fair Work Commissioner today. The lawlist is: Blue Care (Healy), Lorien Novalis School for Rudolf Steiner Education (Zaronias), Strategy1 HR Pty Ltd (Achram), Vintage Fm (Richards), Prosegur Australia Pty Ltd (Noiszewski, Smith), TruckTalk (Floyd), Rodaar Pty Ltd (Lawty), Hosch International Pty Ltd (Ip), Hanseatic Marine Engineering Pty Ltd (Thomas), A & A & A Di Medio & Son (Aust) P/L & A & A Di Medio & Son (Aust) P/L (Di Medio), Balmain N.B. Corporation Ltd (Paul), Wyndham Vacation Resorts Asia Pty Ltd (Karamanos), Lycamobile Pvt Ltd (Gnanaratnam), Boeing Defence Australia Limited (Smith), Staff Australia Pty Ltd (Avgoulis).
October 8, 2018
Fifteen unfair dismissal.labour claimants have lined up for a Fair Work Commission hearing today: Balmain N.B. Corporation Ltd (Paul), Scalabrini Village Limited (Ammellino), Andrew Valerio & Sons Funeral Directors (Maestrale), Central Capital Pty Ltd (Zhou), John Holland Group Pty Ltd (Buckley), JBAN Pty Ltd (Bradley), Ixom Operations Pty Ltd (McMillan), In Vitro Technologies Pty Ltd (Saunders-Stent), The Australian National University (Kendrick), Stryker Australia Pty Ltd (Simpson), Jubi Pty Ltd (Weiss), The Trustee for G & B Leavy Family Trust (Le), Seven Oaks Hospitality (Sotomayor Abarzua), Flight Centre Travel Group Limited & Moir (Hunter), The Playford Hotel (Nesci).
October 5, 2018
Eighteen unfair dismissal applicants will be heard today in the Fair Work Commission. the list is: Richard Vella Excavations And Landscaping (Phillips), Wellteq Pty Ltd (Doria) Verifact Pty Ltd (Horcroft), Byblos Finance (Pascale), Ryan Wilks Pty Ltd (Puszka), Qube Logistics Pty Ltd (Beames), Serco Australia Pty Limited (Singh), Cambridge Gulf Limited (Maiolo), Global Care Group Inc (Stockton), RFDS Western Operations Pty Ltd (Schouten), Ambulance Victoria (Davis), Regis Aged Care (Kemokai), Bevmarks (Wiener), Australia and New Zealand Banking Group Limited (Guedson), North Buderim Pharmacy (Cole), Employment Advocacy Solutions Pty Ltd (Buttress), Bunnings Group Limited (Stranges), Gippsland and East Gippsland Aboriginal Co-operative Ltd (Harrison).
October 5, 2018
MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – two claims to vary the General Retail Industry Award 2010 (Retail Award) – Australian Retailers Association and Master Grocers Australia (Retail Employers) sought to vary clause 30.3(c) to reduce the rates payable for shiftwork performed on Sundays from 200 per cent to 175 per cent for full-time and part-time employees and from 225 per cent to 200 per cent for casual employees – Shop, Distributive and Allied Employees Association (SDA) sought to vary the penalty rates for casuals on Saturday and for evening work on Monday to Friday – SDA sought a penalty payment of an additional 25 per cent for ordinary hours worked by casual employees after 6pm Monday to Friday, and for all ordinary hours worked on a Saturday – in the 4 Yearly Review of Modern Awards – Penalty Rates (Hospitality and Retail Sectors decision (the Penalty Rates Decision) [[2017] FWCFB 1001] the Commission made a number of observations about considerations under s.134 of the FW Act – what is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment – Retail Employers claim – in view of the findings and determination in the Penalty Rates Decision in relation to the Retail Award it is appropriate that the Sunday shiftwork rates be reviewed – central issue in these proceedings is whether the existing Sunday shiftwork penalty rates provides a ‘fair and relevant minimum safety net’ – fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question – Full Bench held that the current Sunday shiftwork penalty rates are neither fair nor relevant, they are not ‘proportional to the disability’ – Full Bench decided to reduce the Sunday shiftwork penalty rate for full-time and part-time employees, from 200 per cent to 175 per cent and from 225 per cent to 200 per cent for casuals – transitional arrangements – Sunday shiftwork penalty rate for full-time and part-time shiftworkers – from 1 November 2018: reduced to 195 per cent; from 1 July 2019: reduced to 190 per cent; from July 2020: reduced to 175 per cent – Sunday shiftwork penalty rate for casual shiftworkers (inclusive of casual loading) – from 1 November 2018: reduced to 220 per cent; from 1 July 2019: reduced to 215 per cent; from 1 July 2020: reduced to 200 per cent – SDA claim – under the Retail Award a casual employee working on a Saturday between 7am and 6pm is paid their casual loading of 25 per cent plus an additional 10 per cent, but a full-time or part-time employee is paid a premium of 25 per cent for working ordinary hours on a Saturday – Full Bench held the current casual rates for Monday to Friday evening work and Saturday work lack logic and merit – casual loadings and penalty rates are separate and distinct forms of compensation for different disabilities – penalty rates compensate for the disability (or disutility) associated with the time at which work is performed – the casual loading is paid to compensate casual employees for the nature of their employment and the fact that they do not receive the range of entitlements provided to full-time and part-time employees, such as annual leave, personal carer’s leave, notice of termination and redundancy benefits – the casual loading is not intended to compensate employees for the disutility of working evenings or on Saturdays – the Full Bench held that merit and logic compel the conclusion that the Saturday penalty rate for casuals working between 7am and 6pm should be increased from 10 per cent to 25 per cent – the position in relation to work performed before 7am and after 6pm on a Saturday is more complicated – contrary to the observation in the Penalty Rates Decision casual employees do not generally receive less for working before 7am or after 6pm on a Saturday than they do for working between 7am and 6pm – outside of the hours of 7am to 6pm casual employees are generally paid at overtime rates – it is appropriate that the casual rates for evening work and Saturday rates be reviewed – Full Bench held the evidence supported a finding that permanent and casual employees experience similar levels of disutility associated with evening (Monday to Friday) and Saturday work – this supported the proposition that the penalty rates for working at those times should be the same for permanent and casual employees – Full Bench agreed that the existing penalty rates for casuals working evenings (Monday to Friday) and on Saturdays are not fair and proportionate to the disability experienced by casual employees working at these times – SDA’s application to vary the Retail Award granted – transitional arrangements – Saturday work: casuals – from 1 November 2018: a casual employee must be paid an additional 15 per cent for all work performed on a Saturday; from 1 October 2019: a casual employee must be paid an additional 20 per cent for all work performed on a Saturday; from 1 March 2020: a casual employee must be paid an additional 25 per cent for all work performed on a Saturday – evening work: Monday to Friday – from1 November 2018: an additional 5 per cent will be paid to casuals for hours worked after 6pm; from 1 October 2019: an additional 10 per cent will be paid to casuals for hours worked after 6pm; from 1 March 2020: an additional 15 per cent will be paid to casuals for hours worked after 6pm; from1 October 2020 an additional 20 per cent will be paid to casual for hours worked after 6pm. 4 yearly review of modern awards – General Retail Industry Award 2010
October 5, 2018
MODERN AWARDS – 4 yearly review – ss.65, 134, 156 Fair Work Act 2009 – Full Bench – as part of the 4 yearly review the ACTU sought the variation of all modern awards to include an entitlement (i.e. an enforceable right) to part-time work or reduced hours for employees with parenting or caring responsibilities – it was submitted that there is a ‘gap’ in the safety net regarding flexible working arrangements because the ‘right to request’ in s.65 of the FW Act does not provide employees with an enforceable right – an employer’s decision to refuse a s.65 request is not subject to review or appeal – employer parties opposed the Claim and contended that s.65 provides a suitable framework for dealing with requests for flexible working arrangements – in a decision published on 26 March 2018 [[2018] FWCFB 1692] a differently constituted Full Bench rejected the Claim – the Full Bench went on to say that the rejection of the ACTU’s claim did not conclude the matter, noting (at [420]) that there was ‘a significant unmet employee need for flexible working arrangements’, and expressing (at [417]) the provisional view that modern awards should be varied to incorporate a model term to facilitate flexible working arrangements – the Full Bench proposed a provisional model term – interested parties were invited to comment – providing employees with access to flexible working arrangements can provide benefits to both employees and employers – Full Bench propose to insert a model term in all modern awards – Full Bench have taken into account the considerations in ss.134(1)(a) to (h) and held provisional view that the variation of modern awards to include the model term is necessary to ensure that such awards achieve the modern awards objective – provisional view that all modern awards should be varied to insert the model term – decision takes a cautious regulatory response to addressing the significant unmet employee need for flexible working arrangements – propose to review the model term in June 2021 – draft determinations giving effect to provisional view will be published in the coming weeks – interested parties will have 14 days from the date of publication of the draft determinations to comment. Family Friendly Working Arrangements
October 5, 2018
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission refused CFMMEU’s application to be heard in opposition to Agreement – the CPB Contractors NSW Civil Works Enterprise Agreement 2017-2021 approved with undertakings – appellant contended that the Commission erred in approving the Agreement – 13 grounds of appeal including that the Agreement was contrary to ss.53 and 58 of the FW Act because it purported to exclude the operation of the Agreement in areas covered by later greenfields and project agreements; and the Commission erred in accepting an undertaking relating to the abandonment of employment provision – Full Bench found Agreement contained unlawful term and undertaking relating to abandonment did not address NES issue – permission to appeal granted – decision quashed – agreement remitted for rehearing – CFMMEU shall be permitted to make submissions at the rehearing of the application for approval of the Agreement in relation to the matters raised by its grounds of appeal. Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decision of Riordan C of 9 May 2018 [[2018] FWCA 2580] Re: CPB Contractors P/L
