ENTERPRISE BARGAINING – single interest employer authorisation – s.248 Fair Work Act 2009 – application for single interest employer authorisation for 250 franchisees of McDonald’s Australia Limited – Commission considered relevant tests – satisfied employers covered by proposed agreement have freely agreed to bargain together and there has been no coercion – satisfied all franchisees carry on similar business activities – found all legislative requirements have been met – application granted. McDonald’s Australia Limited
October 2, 2018
TERMINATION OF EMPLOYMENT – contract for specified task – training arrangement – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal – applicant entered into a training contract for a Certificate III in Plumbing with respondent – filed application for unfair dismissal at end of training period – applicant submitted that an employer cannot end an apprenticeship by unilaterally determining competency – Apprenticeship Information Sheet stated that apprenticeships were competency rather than time-based – Commission found applicant was not dismissed – applicant’s competency was determined by TAFE Queensland rather than respondent – application dismissed. Papacounstantinou v Impact Plumbing and Gas P/L t/a Impact Plumbing and Gas
October 2, 2018
MODERN AWARDS – dispute about matter arising under award – arbitration – s.739 Fair Work Act 2009 – application to deal with dispute – dispute relates to alleged outstanding commission payments owed to applicant – applicant sought that matter be arbitrated by the Commission – respondent declined arbitration and submitted that the dispute resolution procedures of the employee’s agreement and the Real Estate Industry Award 2010 (the Award) requires both parties to consent – whether the Commission can exercise powers of arbitration without the consent of the respondent – found that the Award does not empower the Commission to arbitrate the dispute without the consent of both parties – Cook Colliery referred – found that employment agreement does not contain any reference to arbitration by the Commission as a method of dealing with the dispute – employment agreement does not confer arbitration, unilaterally or otherwise, to the Commission – satisfied the Commission does not have power to arbitrate the dispute – application dismissed. Giannopoulos v Chisholm & Gamon Property P/L
October 2, 2018
TERMINATION OF EMPLOYMENT – remedy – reinstatement – ss.391, 394 Fair Work Act 2009 – substantive decision of 28 August 2018 found dismissal unfair [[2018] FWC 4991] – expressed reservations about whether reinstatement appropriate in circumstances were respondent had no right to insist on-hire employer give applicant access to its site – applicant pressed reinstatement to position with on-hire employer – Commission ordered respondent to reinstate applicant to position held immediately prior to dismissal – found that applicant worked only at on-hire employer’s site and that when the respondent ended that assignment it terminated the applicant’s employment – refused leave for respondent to call further evidence against reinstatement as respondent knew of applicant’s position and did not previously call evidence – confirmed provisional view that applicant should be reinstated to the position from which she was unfairly dismissed at on-hire employer – found not appropriate to make ancillary orders sought by respondent – ordered respondent reappoint applicant to former position, to maintain continuity employment and continuous service – respondent to pay applicant $4,475.00 for remuneration lost because of dismissal. Star v WorkPac P/L t/a WorkPac Group
October 2, 2018
ANTI-BULLYING – constitutionally-covered business – ss.604, 789FC, 789FD Fair Work Act 2009 – appeal – Full Bench – at first instance appellant submitted Commission had no jurisdiction to deal with application for an order to stop bullying as employee not ‘at work’ and appellant not ‘constitutionally-covered business’ – Commission rejected employee not ‘at work’ and found appellant was a ‘constitutionally-covered business’ as a trading corporation – Full Bench considered authorities concerning the characterisation of a trading corporation [UFU v CFA]; [Bankstown]; [Aboriginal Legal Service] – whether appellant’s trading activities substantial enough to characterise as a trading corporation under s.51(xx) of Constitution – revenue generated through trading activities – appellant’s trading activities substantial and significant – appellant not deprived of trading corporation character by reference to purposes it established, closeness to NSW State, that it may be subject to Ministerial direction or that its functions are predominantly for the public good and not commercially orientated [St George County Council]; [Tasmanian Dam Case] – predominance of appellant’s public functions does not exclude the proposition that it is trading corporation by virtue of the substantial nature of its trading activities – characterisation of ‘trading corporation’ not error – appeal dismissed. Appeal by Roads and Maritime Services against decision of Hamberger SDP of 19 June 2018 [[2018] FWC 3584] Re: Leeman
September 27, 2018
The unfair dismissal/labour dispute law list in the Fair Work Commission today includes: Ugarit Pty Ltd (Byrne), Catholic Healthcare Limited (Gallagher), Catholic Healthcare Limited (Hickson), Catholic Healthcare Limited (Hutchinson), Corridors College Limited (Wallis), Moama Bakery Pty Ltd (McKee), Hungry Jacks Pty Ltd (Madade), Asset Restoration Pty Ltd (Georges), Hills Limited (Kulendran), Serco Australia (Maharaj), BHP Billiton Iron Ore Pty Ltd (Calcutt), Watsons Logistics (Lloyd), ISS Security Pty Ltd (Ebba), MSS Security Pty Ltd (Herrigan), Puma Energy (Anthony), Byfields Business Advisors (Short), Caroline Chisholm Society (Gulbis), Sarina Russo Job Access (Australi) Pty. Ltd. (Burge), Australia for UNHCR (Tamu), Via Roma (Zammit), The Trustee for Junedale Family Trust (Finney), FES Coal Pty Ltd & Construction, Forestry, Maritime, Mining and Energy Union (Shorey), Sakuraya Holdings Pty Ltd (Dinh), Transit Australia Group (Kainzinger), Hall Creek Coal Pty Ltd (Stenbo), Risk Insure Pty Ltd (Kelly), and Seed Distributors (Renaglia).
September 26, 2018
A paltry queue of twenty unfair dismissal or labour dispute claims are before the Fair Work Commission today. The list is: Toll Global Express (Seferovic), Sydney Trains (Weston), UHK Pty Ltd (Canning), Reece Limited (Ward), Emerald Property Services Pty Ltd (Maguire), Lorien Novalis School for Rudolf Steiner Education (Zaronias), Western Australian Turf Club (Weikl), ANCRNMI Pty Ltd (Traynor), Regis Aged Care (Kemokai), Ventura Home Group WA (Dixon), International Institute of Business and Technology (Watkins), City of Whittlesea (Stokes), ABN Group (Vic) Pty Ltd (Dodd), DRW Investments Pty LTd (Arnold), Precision Shower Screens and Robes Pty Ltd (Vaihu), Cricks Sunshine Coast (Betar), Light Industries Pty Ltd (as Trustee for the Light Industries Trust) (Durkin), Sidney Harrison Pty Ltd (Jones), Sharp Airlines (Oehms), HACCP International Property Services (Alkemade).
September 25, 2018
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)
