The Fair Work Commission will hear twenty-six unfair dismissal labour dispute applications today. The list is: Country Acres (Hall), Lend Lease Engineering Pty Ltd (formerly Abigroup Contractors Pty Ltd) (Newton), David Jones Pty Ltd (Alabed), Mayo Healthcare Group Pty Ltd (Scarlett), Cleaning Edge Solutions (NSW) Pty Ltd (Khan), GWA Group (Cassar), Australian Taxation Office (Narayan), Sam Technologies (Baloh), Windmill Paddock Pty Ltd (Ormsby), Twentieth Super Pace Nominees Pty Ltd (Prentice), Linfox Australia Pty Ltd (Cavanna), Westpac Banking Corporation (Volker), Qube Logistics Vic. Pty Ltd (Davidson), The State of New South Wales (Herath), Moama Bakery Pty Ltd (McKee), Goulburn Park Pty Ltd (Mills), Prosegur Australia (Kukalev), Aboriginal Legal Service (NSW/ACT) Limited (Bell), Victorian Rail Track (Straube), Australian National Hotels Pty Ltd (Rose), Commonwealth of Australia as represented by Commissioner of Police (Jones), Cricks Sunshine Coast (Betar), North Buderim Pharmacy (Cole), University of Southern Queensland (Sareen), Commonwealth of Australia as represented by Commissioner of Police (Jones), ACH Group (Kutchen)
September 25, 2018
RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – applicant claimed three right of entry disputes – disputes relate to a regional infrastructure project that involves the duplication of approximately 155 kilometres of road on the Pacific Highway between Woolgoolga and Ballina to a four-lane divided road – Commission found disputes did not relate to the operation of Part 3-4 of the FW Act – found first dispute regarding non-compliance with previous orders required exercise of judicial power which the Commission does not have – found second dispute concerning right of entry concerning an incident involving an excavator was a dispute about the operation of Part 7 of the Work Health and Safety Act 2011 (NSW)- Commission does not, for the most part, have jurisdiction to deal with the second dispute, and to the extent there is such jurisdiction, Commission not willing to exercise my discretion to make the orders sought by the CFMMEU – found third dispute about right of entry to investigate an alleged safety issue concerning fatigue and heat exposure would not serve to inform, educate or remind persons of their obligations or reduce future disputes – application dismissed – open to the CFMMEU to prosecute a case concerning these three disputes in a competent court and seek appropriate penalties and/or other relief. Construction, Forestry, Maritime, Mining and Energy Union v Laing O’Rourke Australia Construction P/L t/a Pacific Complete
September 25, 2018
TERMINATION OF EMPLOYMENT – performance – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found the employee had been unfairly dismissed and ordered compensation of $70,000 – appellant advanced six grounds of appeal including that the Commission erred in failing to determine or be satisfied in accordance with s.385(c) of the FW Act that the dismissal was not consistent with the Small Business Fair Dismissal Code (Code); and by failing to decide in accordance with s.396(c) that the dismissal was not consistent with the Code before considering the merits of the applicant’s application – ‘the requirements of this section [ie s.385] … depend upon the Commission itself being satisfied of the state of affairs referred to’ [Clermont Coal P/L v Brown] – not in dispute that TIOBE was a ‘small business employer’ at the time of the employee’s dismissal – at first instance the Commissioner indicated she was satisfied the appellant was a small business, but concluded the Code did not apply because the appellant did not contend that the dismissal was consistent with the Code – appellant submitted that the fact TIOBE may not have contended that the dismissal was consistent with the Code did not relieve the Commission of the statutory obligation to actively consider and determine whether the Code was complied with – further submitted that the Commission has an obligation to actively consider and determine the question of compliance with the Code in circumstances where the employer is a small business – the Full Bench agreed with this proposition – the Commission has an obligation, in all matters, to satisfy itself that it has the requisite jurisdiction to perform a particular function [Hewitt v Topero Nominees] – the Commission made an error in not first considering whether the dismissal was consistent with the Code before turning to deal with whether the dismissal was unfair – Ryman considered – arguable that the error could have made a difference to the outcome – Full Bench found it was in the public interest to grant permission to appeal – permission to appeal granted – appeal upheld on the basis of the error identified – the Decision and Order at first instance quashed – application for an unfair dismissal remedy referred back to Bissett C for rehearing – not necessary to consider the remaining grounds of appeal, however given the nature of the issues raised the Full Bench found it appropriate to make some general observations regarding the Commission’s obligation to provide a fair hearing – Commission obliged to perform its functions and exercise its powers in a manner that is fair, just and quick – Members have a positive duty to provide appropriate assistance to litigants in person whether they be applicants or small business respondents – the degree of assistance which must be afforded depends on the context – the duty to assist may extend to issues of law as well as procedure – plainly necessary to balance the interests of litigants who represent themselves with the need to afford procedural fairness to other parties – in the context of the present matter it would have been appropriate for the Commission to have drawn the Code to the parties’ attention (and provided them with a copy of the Code) and inquired of the appellant whether it submitted that the dismissal was consistent with the Code. Appeal by TIOBE P/L t/a TIOBE against decision and order of Bissett C of 19 July 2018 [[2018] FWC 4173], [PR609148] Re: Chen
September 25, 2018
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision deals with a number of outstanding technical and drafting issues arising out of Group 1 of the award stage – the 30 awards allocated to Group 1 are listed at Attachment A to the decision – the Group 1 awards are divided into five subgroups (1A, 1B, 1C, 1D and 1E) – decision should be read in conjunction with the decisions issued 9 June 2017 [[2017] FWCFB 3177] and 28 June 2018 [[2018] FWCFB 3802], which also deal with Group 1 awards – should also be read in conjunction with earlier decisions relating to the Review including a decision published on 23 December 2014 [[2014] FWCFB 9412] which dealt with the technical and drafting issues in the Group 1A and 1B awards and a decision issued on 23 October 2015 [[2015] FWCFB 7236] which dealt with issues in Group 1C, 1D and 1E awards – also two relevant decisions concerning the Review: the 13 July 2015 [[2015] FWCFB 4658] and 30 September 2015 [[2015] FWCFB 6656] in which the Commission dealt with a number of drafting and technical issues common to multiple exposure drafts including minimum and ordinary hourly rate of pay – no other outstanding items relating to the Group 1 awards – each exposure draft will be updated and republished – parties will be provided with one final opportunity to comment on the technical and drafting aspects of the exposure drafts in respect of the Group 1 awards – this will not be an opportunity to reargue matters which have already been determined, but will provide interested parties with an opportunity to comment on variations made to the exposure drafts to incorporate decisions relating to ‘common issues’ and any technical and drafting issues determined in this decision – a Statement regarding the process for finalising the exposure drafts and concluding the award stage of the Review will be issued in due course. 4 yearly review of modern awards—Award stage—Group 1
September 25, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.595, 738, 739 Fair Work Act 2009 – s.39D Coal Mining Industry (Long Service Leave) Administration Act 1992 – the Coal Mining Industry Long Service Leave Administration Act 1992 (Cth) (Coal LSL Act) establishes a portable long service leave scheme which enables eligible employees to carry separate periods of qualifying service across to other employers in the black coal mining industry and provides for a fund which reimburses employers for long service leave payments made to eligible employees – s.39D of the Coal LSL Act empowers the Commission to deal with disputes relating to long service leave, by operating in certain ways upon the dispute settling functions and powers of the Commission under the FW Act – applicant was an employee of the respondent from 26 August 2010 until 18 March 2016 when he was dismissed – applicant sought that the Commission make a recommendation or express an opinion in relation to the question of whether the respondent is required to pay him his long service leave in accordance with the express power of the Commission under s.595(2)(b) of the FW Act – respondent objected to the application and submitted that the Commission should exercise discretion and decline to deal with the dispute – Commission does not have the power under the Coal LSL Act to deal with a dispute by arbitration on the basis that the respondent does not consent to arbitration – applicant had not met the required period of qualifying service (eight years) to be entitled to long service leave as a benefit on termination – found an inappropriate use of Commission’s powers and functions to deal with dispute where factual scenario involves non-parties – decision to exercise discretion to refuse to deal with the dispute – application dismissed. Renton-Power v Batchfire Callide Management P/L
September 24, 2018
The hearing list in the Fair Work Commission today is: St Vincent’s Hospital Sydney Limited (Harris), Serco Australia Pty Ltd (Singh), Hills Limited (Kulendran), BUPA Aged Care (Doroja), Mertans Holdings Pty Ltd (Malone), Westpac Banking Corporation (Volker), QF Cabin Crew Australia Pty Limited (Urso), Qantas Airways Pty Ltd (Rodl), Department of Justice and Regulation – Barwon PRison (Pecevska), LEAP Legal Software Pty Limited (Elliott), Frankston and District Basketball Association (Blackley), Kwik Fix International Pty Ltd (Beeching), Wyndham Vacation Resorts Asia Pacific Pty Ltd (Karamanos), Transport Workers’ Union of Australia (de Lange Savage).
September 21, 2018
Twenty-nine applicants for either unfair dismissal/work dispute issues will gain a hearing in the Fair Work Commission today. The list is: Margaret Jurd College (NSW) Limited (Larsen), Wax Converters Textiles Pty Ltd (Minchin), Catholic Healthcare Limited (Clarke), Department of Health and Human Services (Vogel), Cleaning Edge Solutions (NSW) Pty Ltd (Khan), Avalon Vet Pty Ltd (Gledhill), Settlers Apartments (Pendrick), Sam Technologies (Baloh), Parton Wine Dist Pty Ltd (Lindupp), LiveBetter Services Limited (McFarlane), Cabra-Vale Ex-Servicemen’s Club Ltd (Moulds), Attitude Food Group Pty Ltd (Archer), Lavida Workforce Pty Ltd (Kanbar), Waguih Attiah (Saha), DPV Health (Smith), Sydney Trains (Koutsoumbos), Xtreme Freight Pty Ltd (Assaf), DET Department of Education (Jardine), DRW Investments Pty Ltd (Arnold), KDR Victoria Pty Ltd (Nguyen), Eastern Health (Vasiliadia), Canberra Greyhound Racing Club Inc (Peck, Thomas), Vet Supersavers (Hawkins), Smithfield Smash Repairs Pty Ltd (Juras), Valco Group Australia Pty Ltd (Monteiro), Novita Children’s Services (Martin), Trustee for the Crane Services Trust (trading as Crane Services) (Biar), Community Bridging Services (CBS) Inc (Horne).
September 20, 2018
Twenty applicants will today seek unfair dismissal/contract/dispute redemption before the Fair Work Commission today. The list is: Hilltop Meats Pty Ltd (Golledge), HCL Australia Services Pty Limited (Amba), S & S Employment (Trajkovski), BTM Investments (Topdas), Ron Finemoore Transport (Black), Precision Shower Screens and Robes Pty Ltd (Vaihu), Frankston and District Basketball Association (Weidemann), Ventura Transit Pty Ltd (Maguru), KDR Victoria Pty Ltd (Nyuyen), TIOBE Pty Ltd (Chen), Mayo Healthcare Group Pty Ltd (Scarlett), The Trustee For Woodards (Northern) Trust (Parsons), FGD Pty Ltd (Strutt), Coles Supermarkets Aust Pty Ltd (Angelakos), PERC Group Pty Ltd (Barratt-Hassett), Virgin Australia Airlines Pty Ltd (Turner), Leading Educational Enterprises Ltd (Everest), Host My Home Pty Ltd (Savimaki), ACH Group (Kutchen), Altus Traffic Pty Ltd (Choice).
