TERMINATION OF EMPLOYMENT – valid reason – diplomatic immunity – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant is a national of the Republic of the Philippines – was recruited from the Philippines by respondent to work in Australia pursuant to a contract of employment as a foreign domestic worker under a subclass 403, Domestic Worker (Diplomatic or Consular) visa – applicant employed to perform domestic work, including childcare/nanny-type work, in a private residence – when employment commenced respondent was a First Secretary (Consul) employed at the Sydney offices of the Consulate-General of the Republic of Iraq – initial matter raised in respondent’s submissions was the operation of the Consular Privileges and Immunities Act 1972 (Cth) applied to the circumstances of the applicant’s employment – submitted that full diplomatic privileges apply and respondent was ‘immune from these proceedings – Commission found applicant met each of the eligibility criteria specified in the Fair Work Act – satisfied applicant was a person protected from unfair dismissal and eligible to make an application – Commission considered the employment of a private domestic worker performing the role that the applicant undertook would not, it seems, be within the official consular functions of the respondent and, therefore, it also seems, there was no immunity to be claimed – applicant dismissed after questioning employment arrangements following discussions with Department of Foreign Affairs and Trade – Commission found no valid reason for dismissal – satisfied applicant not paid in accordance with contract of employment – found applicant was unfairly dismissed – ordered compensation of $20,000. Buenaobra v Alesi
August 10, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – redundancy – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – dispute under the Unilever Australia Trading Limited Tatura Site-Enterprise Agreement 2015 – whether periods of service as casual or seasonal employees should count as service for the purpose of determining entitlements to redundancy payments under Agreement – Commission found ‘service’ had ordinary meaning of a period of employment with employer including casual or seasonal employee – on appeal to Full Bench – at common law there is no continuity of service between casual engagements – clause 1 of attachment to Agreement states ‘this Redundancy Agreement does not apply to casual or seasonal employees’ – exclusion of casual or seasonal workers in clause 1 clear and of general application – Commission made error that clause 1 exclusion relates only to entitlement to payment and not calculation of service – distinguished Donau – Donau should not be seen as establishing any principle about the application of s.22 of the FW Act to casual employment or the approach to calculating service in enterprise agreements – appeal upheld – decision at first instance quashed – AMWU’s application under s.739 determined by further decision of Full Bench that service of casual and seasonal employees does not count as service for the purpose of calculating redundancy payments pursuant to clause 2.7 of Attachment 4 of the Agreement. Appeal by Unilever Australia Trading Limited against decision of Gooley DP of 30 July 2018 [[2018] FWC 1150] Re: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
August 10, 2018
CONDITIONS OF EMPLOYMENT – wages – equal remuneration order – ss.157, 302 Fair Work Act 2009 – Full Bench – on 27 July 2018 the Full Bench issued a statement indicating that the proceedings may give rise to issue of whether the minimum rates of pay applicable to early childhood teachers in the Educational Services (Teachers) Award 2010 are properly set having regard to the value of work performed by such teachers – noted that Commission had power under s.157(2) of the FW Act to make a determination varying minimum wages in a modern award for work value reasons – s.157(3) enables Commission to make such determination on its own initiative or upon application – applicant made application to adjourn matter to either amend application or file a further one to address the work value issue – contended that continuation of matter raises possibility of calling witness twice in current matter and in relation to the new application – adjournment opposed by several parties – Full Bench considered that there would be substantial overlap between the current application and any future work value application under s.157(2) – agreed that it would be likely that witnesses would need to be recalled – adjournment granted – hearing dates for 31 July, 1-2 August and 6-10 August 2018 vacated – applicant directed to file its amended application, further application or position document by 13 August 2018 – matter listed for directions hearing on 30 August 2018 at 9:00am – remaining hearing dates on 10-11 and 24-26 September 2018 retained – all parties’ rights are reserved pending any further directions. Independent Education Union of Australia
August 10, 2018
INDUSTRIAL ACTION – order against industrial action – ss.413, 418, 603 Fair Work Act 2009 – application by Castlemaine Perkins P/L (CPPL) for order to stop industrial action by United Voice and relevant employees – CPPL contended United Voice did not comply with interim bargaining order and action is therefore unprotected under s.413(5) of FW Act – United Voice argued their non-compliance a matter of form rather than substance and applied under s.603 for variation of order to cure non-compliance – Commission considered principles relevant to exercise of discretion under s.603 – applied guidelines established in Esso – whether non-compliance due to oversight or inadvertence or unacceptably careless disregard or contumaciousness – found discretion to vary should not be exercised in circumstances of case as non-compliance at best careless disregard – application for variation of order refused – further consideration of order to stop industrial action to issue – interim industrial action order issued prior to hearing to remain in effect until question is determined. Castlemaine Perkins P/L t/a Castlemaine Perkins v United Voice
August 10, 2018
ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application for bargaining order – alleged failure to meet good faith bargaining requirements – alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – preventing or hindering access to site during rally which coincides with industrial action – false and misleading statements to the media about the future of the brewery – bargaining order issued. Castlemaine Perkins P/L t/a Castlemaine Perkins v United Voice
August 10, 2018
TERMINATION OF EMPLOYMENT – valid reason – remedy – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against unfair dismissal decision and Order requiring payment of compensation – stay of Order for payment of $22,882 granted prior to hearing of appeal on condition that appellant pay respondent reduced sum of $14,806 [PR607446] – Full Bench found respondent unfairly dismissed by appellant – public interest enlivened and permission to appeal granted with respect to quantification of compensation – Sprigg method not followed – matters taken into account were not identified in mathematical sense in awarding 17 weeks’ pay as compensation – an error of principle applied – applicant not summarily dismissed and did not argue as such at first instance therefore date of termination incorrect – compensation wrongly utilised as mechanism for recovering non-payment of personal leave entitlements under NES – order at first instance exceeded what it should have by six weeks’ – correct amount of compensation was $14,806 – as payment already made issues of taxation a matter for individual parties and outside powers of Commission. Appeal by Chesson P/L t/a Pay Per Click against decision of Cambridge C of 1 May 2018 [[2018] FWC 2080] Re: Knutson
August 10, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – dismissal on notice for serious misconduct and poor disciplinary record – pre-existing personal friendship with new client – consent confidentiality order issued regarding documents – failure to disclose and manage conflict of interest – breaches found – dismissal for valid reason – significant factors in mitigation – significant deficiencies in procedural fairness – Commission found dismissal harsh despite valid reason and poor disciplinary record – confidentiality order amended with regard to future access to documents – reinstatement inappropriate – payment made in lieu of notice – compensation discounted – no compensation payable. Andrawos v MyBudget P/L
August 9, 2018
Another 33 have quickly queued to have their unfair dismissal/labour dispute assertions tested in the Fair Work Commission. The list is: NCSI Australia Pty Ltd (Kazmer), AEG Ogden Pty Ltd (Orechow), Bunnings Group Limited (Perry), Scalabrini Village Limited (Ammellino), Mt Arthur Coal Pty Limited (Waters), Louis Valentino Porcellanato Pty Ltd (Kandalaft), The Star Entertainment Group (Liu), Manly Warringah Sea Eagles Limited (Lussick), Commonwealth Bank of Australia (Budesa), Patrick Projects Pty Ltd (Deeney & Hughes and Others), Austral Insurance Brokers Pty Ltd (Butler), Fortescue Metals Group Limited (Gosse), Cantek Pty Ltd (Volchkov), Port Lincoln Tuna Processors Pty Ltd (Taylor), Beyond Bricklaying Pty Ltd (May), Baiada Poultry Pty Ltd (Omer), RPay Plus Pty Ltd (Royal Pay) (Zhao), Japara (Sarmiento), Extragreen Holidays (Aust) Pty Ltd (Qureshi), Broadspectrum (Australia) PTy Ltd [formerly Transfield Services (Australia) Pty Ltd] (Sheldon-Collins), Jamil S.J.S. Pty Ltd & Jimee (Ali), United Plastics (Australasia) Pty Ltd (Conway), Australian Homestay Network Pty Ltd (Mezger), Wheat Ridge Pty Ltd (Vidal), Phillips Family Trust (Jusuf), Australian Skin Clinics (Alamos), Astek Cranes Australia Pty Ltd (Twomey), Clairville Constructions Pty Ltd (Crosby), Azure on West Terrace Pty Ltd (Newbould), Aldi (Rowe), The Archer Hotel (O’Leary), Port Lincoln Tuna Processors Pty Ltd (Taylor).
