Late filings at the Fair Work Commission have the following applications on today’s hearing list: Mr Arthur Coal Pty Ltd (Cordewener), Hitachi Construction Machinery (Australia) Pty Ltd (Reid & Garland), LEAP Legal Software Pty Limited (Elliott), The Learning Bar Pty Ltd (Baker), G. M. Kane & Sons Pty Ltd (Mobbs), Krav Maga Defence Institute Pty Ltd (Markovitch), Accident Repair Management Pty Ltd (Carboni), Westpac Banking Corporation (Deng), Prosegur Australia (Kukalev), KDR Victoria Pty Ltd (Templeton), Doutta Galla Aged Services Ltd (Infante), Fairfax Media Management (Kalina), M Square Projects Pty Ltd (Parzinkas), Chep Australia Limited (Soriano), Global Wear Solutions Engineering Australia Pty Ltd (Laxman), Excelcare Australia Limited (Millar), Australian Municipal Clerical Services Union Queensland Together Branch (Watson), Smithfield Smash Repairs Pty Ltd (Juras), Leda Management Services Pty Ltd (Keidge), Basin Sands Logistics Pty Ltd (Clayton), Jeremy Lawson P & D (Caughey), Global Wear Solutions Engineering Australia Pty Ltd (Laxman).
July 20, 2018
CASE PROCEDURES – revoke or vary decision – s.603 Fair Work Act 2009 – Full Bench – application to revoke an order made under s.424 terminating industrial action – since late 2014 and until 7 December 2016 The Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the AMWU (collectively ‘the Unions’), had been bargaining with Esso for a proposed enterprise agreement or agreements that would replace the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (Longford & LIP Agreement) and the Esso Offshore Enterprise Agreement 2011 (Offshore Agreement) – the AWU organised, and many of its members engaged in, various forms of industrial action directed against Esso – AWU maintained that all such industrial action was protected industrial action – Esso maintained that aspects of the industrial action were not protected action – disputed industrial action included bans on the performance of equipment testing, air freeing and leak testing – Esso obtained a number of orders from the Commission directed to the AWU stopping unprotected industrial action – obtained an order on 6 March 2015 (IA Order) – in contravention of the IA Order, the AWU continued to organise industrial action – Esso commenced proceedings in the Federal Court of Australia – the Court rejected Esso’s claim – Esso appealed to the Full Court of the Federal Court – The Full Court dismissed the appeal on 25 May 2016 – on 21 June 2016, Esso filed in the High Court of Australia, an application for special leave to appeal particular orders of the judgment of the Full Court – on 30 November 2016, the Unions served on Esso notices of intention to take protected industrial action – on 7 December 2016, Vice President Watson made an order to terminate the protected industrial action [PR588352] – the applications giving rise to the Order were made by the Minister for Industrial Relations for the State of Victoria (The Minister) – Esso’s special leave application to the High Court had not, at this stage, been heard – during the course of hearing the Minister’s applications, Esso accepted that the Full Court’s judgment in Esso Australia P/L v Australian Workers’ Union was binding on the Commission at that time – this Full Bench was convened to deal with making an ensuing workplace determination as contemplated by s.266 of the FW Act – on 6 December 2017, the High Court delivered judgment in Esso Australia P/L v The Australian Workers’ Union in which a majority of the Court allowed an appeal by Esso, holding that the industrial action organised by the AWU in relation to a replacement enterprise agreement or agreements for, relevantly the Longford & LIP Agreement and the Offshore Agreement was not protected industrial action subsequent to the AWU’s contravention on 6 March 2015 of the IA Order – Esso has applied under s.603 for an order revoking the Order made by Vice President Watson on 7 December 2016 – The Minister and the Unions oppose revocation – Full Bench held that taking unprotected industrial action should not result in the making of a workplace determination – the discretionary matters which point in favour of the exercise of our discretion to revoke the Order outweigh those going the other way – Order revoked with effect on and from the date on which it was made (7 December 2016) – parties encouraged to engage in immediate discussions with a view to concluding an enterprise agreement to replace the Offshore Agreement – Full Bench prepared to advise the parties in conference as to its views on the likely form of a workplace determination that would have been made – prepared to set out the likely form of a workplace determination that we would have made in a recommendation if the parties provided an indication that they would each accept the recommendation and allow employees the opportunity to vote to approve an enterprise agreement consistent with that recommendation. Esso Australia P/L v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Ors
July 20, 2018
ANTI-BULLYING – order to stop bullying issued – s.798FC Fair Work Act 2009 – application for order to stop bullying – decision does not identify parties – applicant is director of company and respondent is Chairman of the Body Corporate Committee for the Complex – applicant complained of bullying conduct consisting largely of excessive emails sent continuously – respondent argued his conduct was reasonable management action underpinned by applicant’s failure to comply with managerial responsibilities – applicant sought order to stop respondent from a range of behaviours – Commission considered evidence – found applicant’s performance providing management services not ideal – found that whilst many issues raised by respondent were reasonable their manner and frequency were not – Commission satisfied behaviour unreasonable and repeated, likely to continue and negatively affecting applicant’s health – order issued dealing with timing, subject matter and content of future emails by respondent. Application by Ms A
July 20, 2018
CASE PROCEDURES – evidence – s.185 Fair Work Act 2009 – application by Metropolitan and Fire and Emergency Services Board (MFESB) for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 – Minister for Small and Family Business, the Workplace and Deregulation (the Minister) contended that Agreement contains discriminatory and objectionable terms directed at part-time employees and those employees entitled to flexible working arrangements – the Minister and Victorian Equal Opportunity and Human Rights Commission (VEOHRC) filed submissions and the Minister filed evidentiary material in objection to approval – MFESB and UFU raised objections to the Minister’s and VEOHRC’s material – consideration whether the Minister should be permitted to adduce evidence – UFU and MFESB opposed grant of leave to the Minister to adduce evidence – MFESB did not object to Commission receiving the Minister’s material – consideration of the rules of evidence – consideration of complexity of issue – Commission allowed the Minister to tender material and adduce evidence from witnesses foreshadowed in order to inform itself – issues to be determined in light of all evidence and full argument at scheduled hearing. Application by Metropolitan Fire and Emergency Services Board
July 20, 2018
ENTERPRISE AGREEMENTS – approval – ss.180, 185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission approved the Dawsons Maintenance Contractors Enterprise Agreement 2017 – CFMMEU restricted by Commission to only make submissions in relation to the BOOT at first instance due to it not being a bargaining representative – CFMMEU appealed approval decision – granted standing to appeal and permitted to argue a case it did not raise in first instance due to restriction [ASU v Yarra Valley Water Corporation] – permission to appeal granted in relation to appeal ground 1 – question of employees access to referenced materials in the agreement [One Key] – Full Bench not satisfied s.180(2) of the FW Act complied with – no evidence provided to show that the subjects for which undertakings had been given and accepted were identified to employees, let alone explained to them in accordance with s.180(5) – Full Bench found Commission erred in finding requirements of s.180(5) had been met – jurisdiction prerequisite requirements under s.186(2)(a) not satisfied – appeal upheld – approval decision quashed – agreement approval application dismissed. Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decision of McKinnon C of 6 February 2018 [[2018] FWCA 802] Re: Dawsons Maintenance Contractors P/L
July 20, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a Warehouse Operator – Christmas party organised by ALDI – held in a private room at a Hotel – costs of the room hire, together with food and drinks, were met by ALDI – applicant dismissed for allegedly throwing a beer glass and its contents in the direction of other employees – intoxication – Commission found misconduct – potentially serious consequences – whether the function can be considered to have been work-related – Keenan considered – found valid reason for dismissal – application dismissed. Vai v ALDI Stores (A Limited Partnership)
July 20, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – alleged dispute under the Tip Top Bakeries (NSW) Maintenance Agreement 2014 – applicant altered maintenance employees’ roster reducing rostered overtime – AMWU and CEPU asserted provision of agreement referring to employee contracts of employment prevented reduction in employee remuneration – Commission found dispute relates to operation of common law contracts – found no jurisdiction to determine matters concerning common law employment contracts – application dismissed. George Weston Food Limited t/a Tip Top Bakeries v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Anor
July 20, 2018
The Fair Work Commission list for today is: Nhulunbuy Corporation (Page), Australian Municipal Clerical Services Union Queensland Together Branch (Watson), Queensland Scaffolding (Wragg), Celtic Training & Consultancy Pty Ltd (Myall, Woodall), Precious Cargo Collinswood (North East Rd) Pty Ltd (Hissey), Qantas Airways Limited (Robinson), Horan & Bird Energy Pty Ltd (Gaunt), Tasmanian NEtworks Pty Ltd (Facchin), MERCUS Pty Ltd (Rogan), Ngaruma & Yindjibarndi Foundation (Nestorovska), Australian Nuclear Science and Technology Organisation (Peterson), In Syd Group Pty Ltd (Tulua), Lion Dairy and Drinks Pty Ltd (Warda), ANZ Banking Group Limited (Miao), Endeavour Air Conditioning Pty Ltd (Bosenberg), Hanson Construction Materials Pty Ltd (Tarrant), Deepam Investments Pty Ltd (Deepam Trust), Rio Tinto Iron Ore (Fisher), KDR Victoria Pty Ltd (Smith), Tricab (Australia) Pty Ltd (Avellino), Impos Solutions International (Simkin), FX Services Australia Pty Ltd (Marcham), Rennie & Fraser and Others (Emergency Services Telecommunications Authority), Anglicare Community Services (Dau), Ambulance Victoria (Allamby).
