CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – Full Bench – at first instance Commission found dismissal was unfair – application was treated as uncontested as appellant did not respond to Commission correspondence or attend any conferences or hearings – appellant lodged appeal 294 days after the prescribed 21 day time period – appellant submitted that the Commission erred in deciding the application was uncontested because the appellant had not been served with the application or written notification of the hearing – whether there was a satisfactory reason for the delay – Commission’s records confirm that correspondence was sent to appellant via post, email and telephone – appellant claimed that he was regularly out of office and was unaware of the Commission’s decision at the time – Full Bench rejected appellant’s evidence – found it implausible that no correspondence had been received or passed on to appellant – not satisfied that appellant had provided a satisfactory reason for delay – Full Bench satisfied that appellant was aware of the application and chose to ignore it – satisfied that appeal has little prospect of success – not satisfied that it is in interests of justice to extend time to appeal – application dismissed. Appeal by Logan City Electrical Services Division P/L t/a Logan City Electrical against decision of Simpson C of 21 July 2017 [[2017] FWC 3801] Re: Antonarakis
August 28, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – consultation – s.739 Fair Work Act 2009 – matter heard in accordance with dispute procedure of the Yarra Trams Enterprise Agreement 2015 – Rolling Stock, Infrastructure, Administration, Technical & Professional – introduction to changes of supply chain area – change in reporting lines of some employees to external consultant – creation of 15 new positions occupied by external consultant – whether failure of consultation obligations under Agreement – whether major change – meaning of ‘significant effect on employees’ – Commission satisfied changes to the structure of the supply chain area, service delivery, the organisation, structure of the supply chain area and major restructuring of jobs are significant – satisfied unusual for employees to be reporting to Managers who are employed by another business – satisfied that some steps need to be put in place to remedy the defects that have occurred in the process to date – Commission determined that employer should cease any further implementation of the changes for a period of four weeks – further consultation to occur between parties. Australian Rail, Tram and Bus Industry Union v KDR Victoria P/L t/a Yarra Trams
August 28, 2018
MODERN AWARDS – 4 yearly review – ss.154, 156 Fair Work Act 2009 – application by New South Wales Business Chamber Ltd and the Norfolk Island Chamber of Commerce Inc. for interim award for private sector employers and employees on Norfolk Island – Commission to consider whether proposed interim award included any ‘state based difference terms’ within the meaning of s.154(1)(b) of the FW Act – proposed interim award expressed to operate in one and only one Territory being the Territory of Norfolk Island – proposed interim award sought to exclude employees working in other States and Territories from its coverage based entirely on the fact that they work in those other States and Territories – Commission concluded that terms and conditions of employment in proposed interim award are prohibited by s.154(1)(b) – application dismissed – parties encouraged to engage in enterprise bargaining to meet needs of employers and employees in Norfolk Island. 4 yearly review of modern awards – Proposed Norfolk Island Award
August 28, 2018
CASE PROCEDURES – stay order – ss.392, 394, 604 Fair Work Act 2009 – at first instance the Commission found dismissal was unfair and ordered compensation of $10,951.87, less tax, to be paid within 14 days – found that while a valid reason existed, the employee had not been accorded procedural fairness in the process of dismissal – appellant raised two grounds of appeal regarding the application of s.392(2)(c) of the FW Act – Deputy President found an arguable case, with some prospects of success that the Commission has fallen into error and that the facts and reasoning upon which the Commission relied was an insufficient base on which to conclude that the employee would have remained employed for a period of six months – application for a stay is granted – ordered that appellant pay into the trust account of their legal representative amounts that would otherwise have been payable to the employee as contemplated by the Commission’s order at first instance. Appeal by Hanson Construction Materials P/L against decision of Spencer C of 9 August 2018 [[2018] FWC 4369] Re: Pericich
August 23, 2018
Thirty-three unfair dismissal/labour dispute applications await Fair Work Commission decision. The list is: Australian Postal Corporation T/A Australia Post (Nicholls, Gaye Heather), Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn T/A CE Archdiocese of Canberra & Goulburn (Crowley, Michael), Pendergast Statewide Pty Ltd T/A Pendergast Statewide Freight Services (Davis, Phillip Graham), St Luke’s Care (Jones, Matthew), Q Catering (Hamad, Samir), Depend Melbourne Pty Ltd & Blackham, Kathryn (Collinson, Anita), OPEC System Pty Ltd (Pierce, Andrew), Tech Data Advanced Solutions (ANZ) Limited (Blunt, David), K J Industrial Scaffolding Pty Ltd (Quirk, Bradford Joseph), Serco Australia Pty Ltd T/A Serco (Terito, Connor), Patrick Projects Pty Ltd (Seiffert Denis, Park Richard, Highes, Christopher Darwin, Deeney Jason), Target Australia Pty Ltd T/A Target (Dawson, Bernadine), Centre Orthodontics (Cowan, Natalie), The Kirwan Automotive Trust T/A Max Kirwan Mazda (Bero, Rami), Hayden RE Pty Ltd ATF Hayden Real Estate (Melbourne) Trust T/A Hayden Real Estate (Melbourne), Ultra Thoroughbreds T/A Barree Stud (Koenig, Toby), Arcare Pty Ltd T/A Arcare Aged Care (Kaur, Kanwaljit), Doutta Galla Aged Services Limited T/A Douttagalla (Devi, Preeti), Tasmanian Networks Pty Ltd T/A TasNetworks (Facchin, Girolamo), Ngaanyatjarra Health Service (Lotika, Atileombolo), Mecca Bah (Gold Coast) Trust T/A Mecca Bah Gold Coast (Boudna, Hana), Mater Misericordiae Health Services Brisbane T/A Mater Misericordiae Private Hospital (Palavieng, panika), Catholic Diosece T/A Centacare North Queensland (Hansen, Traie), Lothar Pty Ltd T/A Mackay Taxi Trucks (Woolmet, Beryl Kaye), DK Cleaning (Swarbrick, Barbara), Treasury Wine Estate T/A Treasury Wine Estates (Sartain, Donald), Interflow T/A Interflow Pty Ltd (Dempster, Ryan Robert), Cara Inc T/A Cara Inc (Maglieri, Robert), BMS Retail Group Pty Ltd T/A Champions IGA (Barnes, Andrew), HACCP International Property Services T/A HACCP International (Alkemade, Peter).
August 21, 2018
The lawlist for the Fair Work Commission today includes: Havas Media Australia Pty Limited (Farrokh-Siar), Sydney Trains (Singh), Uniting Communities (Cook), Country Acres (Hall), The Trustee For Hulsbosch Family Trust Pty Ltd (Monem), Serco Australia Pty Ltd (Terito), Patrick Projects Pty Ltd (Deeney, Hughes, Park, Seiffert), Patrick Projects Pty Ltd & K & L Gates (King & Deeney and Others), Regional Express Holdings Ltd (Bennett), Morgan Technical Ceramics Pty Ltd (Thanika), V/Line Pty Ltd (Nason), Broadspectrum Australia Pty Ltd (Kambouris), Victoria University (Laakso), Qantas Ground Services Pty Ltd (Kennedy), Australian Capital Territory Government (Lazarus), Express International Pty Ltd (Lu), Clairville Constructions Pty Ltd (Crosby), Perkins Family Trust (Courtney), Calvary Retirement Communities Hunter-Manning Ltd (Wilkinson), Hakea Grove Aged Care (Nyanaro), Mecca Bah (Gold Coast) Trust (Boudna).
August 20, 2018
Forty-four unfair dismissal/labour disputes await adjudication in the Fair Work Commission. The list includes: CPB Contractors Pty Ltd (Bain), DP World Sydney Limited (Racek), The Trustee for Coly Fuels Unit Trust (Ayling), Tee-Zed Products Pty Ltd (Manna), Toll Personnel Pty Ltd (Taulapapa), Westpac Banking Corporation (Volker), LINX Cargo Care Pty Ltd (Kindle), KDR Victoria Pty Ltd (Templeton), Carpet Logistics Group Pty Ltd (Shannon), LF Sign Group (Trbojevic), Communities @ Work Limited (Gulia), Foot & Thai Massage Pty Ltd (Durado, Isugan), The Embassy of the People’s Republic of Algeria (Abdul-Massih), PMH Auto Tech Pty Ltd (Beginov), Neato Employment Services Pty Ltd & Schroeder (Gwynne), Vedas Dental Pty Ltd (Els), SS Platinum Group Pty Ltd (Balloch), Garry Hodgins (Osborne), Flight Plan Digital Pty Ltd (Moffitt), Fam Enterprises Pty Ltd (Gorton), Jeremy Lawson P & D (Caughey), United Protestant Association of NSW Ltd (Grabovsky), The Tech2 Group Pty Ltd (Burbery), The Star Entertainment Group (Liu), Hawkes Brewing Co Pty Ltd (Langton), Accident Repair Management Pty Ltd (Carboni), Impos Solutions International (Simkin), Comfort Management Pty Ltd (Yang), Sodexo Remote Sites Australia Pty Ltd (Brand), Australian Postal Corporation (Gray), Brillico Pty Ltd (Liu), Monash Health (Mills), DP World Sydney Limited (Racek), Cooke & Dowsett Pty Ltd (Ives), The Lost Dogs’ Home (Hakkinen), TIOBE Pty Ltd (Chen), Collins Foods Limited (Smith), Superior Wood Pty Ltd (Lee), Mark Cotterell Master Jeweller Pty Ltd (Martin), Glencore (Haigh), Northern Iron and Brass Foundry Pty Ltd (Boettcher), Ngaanyatjarra Health Service (Lotika), Moorabbin Transit Pvt Ltd (Jhajj).
August 17, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.63, 96, 739 Fair Work Act 2009 – dispute under terms of the AstraZeneca Enterprise Agreement 2016 – whether respondent’s approach to accruing and deducting personal/carer’s leave for shift workers is consistent with NES entitlement of 10 days per year – dispute related to amount being deducted from an affected employee’s balance when accessing personal/carer’s leave – AWU contended that respondent calculated entitlement in terms of hours not days – submitted employees worked under 3 rostering systems working either 12, 10.28 or 8 hours per shift and would exhaust annual entitlement within 6, 7 or 9.5 shifts – contended entitlement is inferior to NES minimum standard – relied on RACV and Glendell Mining – respondent argued it focused on question of payment of leave not on entitlement – contended that AWU ignored system of averaging permitted under s.63 FW Act – proposed that total entitlement is limited to number of hours accrued – asserted that amount deducted in respect of absence must reflect number of hours an employee is paid – relied on FW Act Explanatory Memorandum – Mondelez later considered and RACV approach affirmed – Commission relied on RACV and Anglo Coal – held that entitlement is expressed in days not hours – noted that entitlement may result in a greater entitlement and overall pay in some cases – determined in accordance with RACV – employees are entitled to 10 days’ personal/carers leave per annum – a day of leave is deducted when a day of leave is taken – employees working 12, 10.28 or 8 hour shifts will be paid 12, 10.28 or 8 ordinary hours’ pay respectively for each rostered day on which leave is taken. Australian Worker’s Union, The v AstraZeneca P/L
