The queue of applicants seeking a resolution tot heir assertions of unfair dismissal/labour contract breaches now stretches around city blocks. The Fair Work Commission lawlist includes: NCC Concrete Services (Rees), Southern Metropolitan Cemeteries Trust (Blackmore), Diesel Transport Pty Ltd (Saipele), Thai Waterfront Restaurant (Inkum), State of Victoria (Minas), State Revenue Office (Tucker), Sally’s Kitchen (Lui), Esso Australia Pty Ltd (Gelagotis, Hatwell), Nebo Service Centre Pty Ltd (Eyles), parkview Property Management (Holder), Gold Coast Hospitality Services Pty Ltd (Ozturk), WaterWorld Pure Drinking Water Pty Ltd (Connolly), Flame Health Pty Ltd (Stocco), Virgin Mobile (Rook), Australian Municipal Clerical Services Union Queensland Together Branch (Watson), Horan & Bird Energy Pty Ltd (Gaunt), Image Holdings Australia Pty Ltd (Liyanage), Ngaanyatjarra Health Service (Bacha), LVMH Watch & Jewellery Australia Pty Ltd (Stefani), Robert John Bailey (Renshaw), The Frank Whiddon Masonic Homes NSW (Greentree), Collection House Limited (Henderson), All Crowd Catering Pty Ltd (Renall), Lou Lou Hair Salon (Black), The Trustee for Impact Admin Services Trust (Torcasio), Roy Hill (Finnegan), Zwift International Pty Ltd (Gabrielson), Premier Transport Group (Gaffney), LEAP Legal Software Pty Limited (Elliott), The University of Wollongong (Schaefer), Fleet Safety Service (Palmer), Impos Solutions International (Simkin), Startrack Express (Taylor), Australian Municipal Clerical Services Union Queensland Together Branch (Watson), BHP Billiton Iron Ore (Smith), Wood Group PSN Australia Pty Ltd (Hanlon), Programmed Skilled Workforce Limited (Fullerton), The Trustee for The Reddy’s Trade and Labour Services Family Trust (Raveemthiran), Batchelor Institute of Indigenous Tertiary Education (Leavy), Mirrabooka Doctors Surgery (Dolby), Gallay Medical and Scientific Pty Ltd (Das), The Trustee for Driven Facilities Management Trust (Soni), AMCS Australia Pty Ltd (O’Young), Verifact Pty Ltd (Hocroft), Punchbowl Bus Company Pty Ltd (Giakoumis), Nhulunbuy Corporation (Page), Hardy Bros Mining and Civil Construction Pty Ltd (Temoananui), Stevenson Logistics Pty Ltd (Waiter), Midway Metals Pty Ltd (Pham), Greyhound Racing Control Board (Monaghan), Sugarless Company Pty Ltd & Vasseur (Vasseur), Australian Government Department of Human Services (Gadzikwa), Gibson Freight Transport P/L (Caccamo), AWH Pty Ltd (Kinley), Kodsi Plastering Services (De Palma), Mantra Group Pty Ltd (Burns), A1 Colon Hydrotherapy Brisbane (Morris), Hail Creek Coal Pty Ltd (Martin), Hunt’s Wholesale Cars Pty Ltd (Sherwin), Nebo Service Centre (Wellington), MyBudget Pty Ltd (Andrawos), The Hills Christian Community School Inc (Kelly).
July 6, 2018
ENTERPRISE AGREEMENTS – approval – better off overall test – s.185 Fair Work Act 2009 – Full Bench – five applications for approval of a single-enterprise agreement – Allied Security Management Enterprise Agreement 2017 (Allied Agreement); JWT Group Services Enterprise Agreement 2017 (JWT Agreement); PSA Security P/L Enterprise Agreement 2017 (PSA Agreement); ALDI Prestons Agreement 2017 (Aldi Prestons Agreement); and ALDI Stapylton Agreement 2017 (Aldi Stapylton Agreement) – all provide for ‘loaded’ or higher rates of pay which are intended to incorporate, in part or whole, penalty rates and other monetary benefits for which separate provision is made in the applicable modern awards – applications referred to Full Bench for consideration as to how the better off overall test (BOOT) is to be properly applied to agreements containing loaded rates – particularly pertinent since the Full Bench decision in Hart – Application of BOOT – two well-established propositions concerning the application of the BOOT – firstly that the BOOT requires a finding that each award covered employee and prospective employee would be better off under the agreement than under the relevant modern award – ‘each’ is ‘every, of two or more considered individually or one by one’ therefore every award covered employee or prospective employee must be better off overall – if any employee is not better off overall, the relevant enterprise agreement does not pass the BOOT – in an agreement containing loaded rates in whole or partial substitution for award penalty rates, it is not sufficient that the majority of employees, even a very large majority, are better off overall if there are any employees at all who would not be better off overall – s.193(7) of the FW Act permits the Commission to assume, if a class of employees to which a particular employee belongs would be better off under the agreement than under the relevant modern award, that the employees would be better off overall in the absence of evidence to the contrary – s.193(7) will only be of utility if the enterprise agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome – the second proposition is that the BOOT requires an overall assessment to be made – this requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement – where the terms required to be compared bear directly upon the remuneration of employees, the assessment is essentially a mathematical one – however the position becomes more complex when an agreement contains provisions superior to, or not contained in the reference award – entitlements to non-monetary benefits, benefits which are accessible at the employee’s choice, or monetary benefits which are contingent upon specified events occurring – while it is necessary to take such entitlements into account in the BOOT assessment, ascertaining the value they are to be assigned may be a difficult task – unlikely that a non-monetary, optional or contingent entitlement under the agreement will sufficiently compensate for the detriment for all affected employees – Principles – the following principles apply to the application of the BOOT to a loaded rates agreement – (1) the BOOT requires every existing and prospective award covered employee to be better off overall – (2) s.193(7) permits the Commission to assume that if a class of employees to which a particular employee belongs would be better off under the agreement than under the relevant modern award, then the employee would be better off overall in the absence of evidence to the contrary – (3) the application of the BOOT to a loaded rates agreement will, in order for a meaningful comparison to be made, require an examination of the practices and arrangements concerning the working of ordinary and overtime hours by existing and prospective employees that flow from the terms of the agreement – (4) the starting point for the assessment will necessarily be an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment for which the agreement provides or permits – (5) In the case of existing employees, this may involve an examination of existing roster patterns worked by various classes of employees as at the test time – the use of sample rosters to compare remuneration produced by a loaded rates pay structure compared to the relevant modern award may be an effective method of doing this – (6) in the case of prospective employees, the assessment will necessarily involve a degree of conjecture – (7) if the information concerning patterns of working hours needed to assess whether a loaded rates agreement passes the BOOT is not contained in the employer’s Form F17 statutory declaration accompanying the approval application, it may be necessary for the Commission to request or require the production of such information – (8) the BOOT involves the making of an overall assessment as to whether an employee would be better off under the agreement, which necessitates identification of the terms in the agreements which are more and less beneficial to the employee than under the relevant award – (9) the overall assessment required will essentially be a mathematical one where the terms being compared relate directly to remuneration – the assessment will be more complex where the agreement contains some superior entitlements which are non-monetary in nature, accessible at the employee’s option or which are contingent upon specified events occurring – (10) in respect of non-monetary, optional or contingent entitlements in an agreement, the assumption cannot readily be made that they have the same value for all employees – (11) where a loaded rates agreement results in significant financial detriment for existing or prospective employees compared to the relevant award, it is unlikely that a non-monetary, optional or contingent entitlement under the agreement will sufficiently compensate for the detriment for all affected employees such as to enable the agreement to pass the BOOT – having regard to the above principles the Decision gives examples of the type of loaded rate structures which are capable, on proper analysis, of passing the BOOT – Consideration – each of the Allied Agreement, the JWT Agreement and the PSA Agreement fails the BOOT with respect to casual employees not assigned to a specified work roster pattern – neither Allied, JWT nor PSA have proposed an undertaking to rectify this which is capable of acceptance under s.190(3) – the applications for approval of the Allied Agreement, the JWT Agreement and the PSA Agreement must therefore be dismissed – in the Aldi Prestons Agreements and the Aldi Stapylton Agreement casual rates were used as a comparator for part-time employees due to a lack of guaranteed and identifiable hours of work – the ‘make good’ provisions in the agreements not sufficient – leave provisions must be paid consistent with NES, not based on ‘notional shift hours’ – further directions made – Full Bench will be reconstituted to consist of a single member of the Commission in respect of the further hearing and determination of the applications for approval of the Aldi Agreements. Loaded Rates Agreements
July 6, 2018
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – technical and drafting issues in the Group 1A and 1B awards were considered in a decision published 23 December 2014 [[2014] FWCFB 9412] (December 2014 decision) – Group 1C, 1D and 1E awards were dealt with in a decision published on 23 October 2015 [[2015] FWCFB 7236] (October 2015 decision) – Full Bench published a further decision on 9 June 2017 with respect to Group 1 awards [[2017] FWCFB 3177] (June 2017 decision) – revised exposure drafts and summaries of submissions republished in June 2017 – this decision finalises the technical and drafting issues in the Group 1 awards, except for the Cleaning Award and the Security Award, and should be read in conjunction with earlier decisions and statements concerning the Review – each exposure draft will be updated and republished, and will be made consistent with the July 2015 decision [[2015] FWCFB 4658] – parties will be provided with one final opportunity to comment on the technical and drafting aspects of the exposure drafts in Group 1 at the conclusion of the review – this will not be an opportunity to raise further technical and drafting issues, parties will be limited to comments regarding the incorporation of our existing decisions into the exposure drafts only. 4 yearly review of modern awards-Award stage-Group 1
July 6, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision of Commission – originating application by TWU – terms of Award incorporated into Award and if terms inconsistent then Agreement terms prevail – Commission at first instance found that employees who perform shift work were entitled to be paid a meal break when working afternoon and/or night shifts – matter subject to decisions by both Commission and Federal Court of Australia – appeal is as of right – appeal reheard by Full Bench – Full Bench adopted principles as set out in Berri – appellant contended that Commission erred in proper construction of Agreement and misapplied principles of interpretation – contended that Commission took into account irrelevant considerations and failed to have regard for relevant evidence – respondent contended that Award provides for a separate regime of conditions for shift workers but Agreement does not directly make provisions for shift work at all – Full Bench discerned no error in Commission’s approach and no misapplication of relevant principles – did not accept contention that Commission took irrelevant considerations into account – held that Commission did not fail to have regard for relevant evidence – held that examination of reasoning process in decision at first instance did not disclose error – appeal dismissed. Appeal by Glen Cameron Nominees P/L (t/a Glen Cameron Trucking) against decision of Bull DP of 28 February 2017 [[2017] FWC 911] Re: Transport Workers’ Union of Australia
July 6, 2018
ANTI-BULLYING – reasonable management action – s.789FC Fair Work Act 2009 – application for order to stop bullying – respondent submitted that alleged bullying behaviour was reasonable management action in response to the applicant’s underperformance and attempt to claim time off for an overseas trip as paid sick leave – Commission found that respondent’s enquiries of applicant’s activities and location were reasonable management action – found that both parties had fostered a level of familiarity between them that may have exceeded that usually found in the employment relationship – not satisfied that comments made regarding the applicant’s boyfriend and appearance were such that could be considered unreasonable behaviour – found that action undertaken by respondent in contacting the applicant’s Medical Centre to challenge medical certificate could not be considered unreasonable, although not ideal – Commission found one occasion of unreasonable behaviour in making ‘belittling’ comments to the applicant at the Winemakers’ Event – not satisfied that respondent had repeatedly behaved unreasonably – application dismissed. McCutcheon v Fine Wine Wholesalers P/L and Anor
July 6, 2018
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for orders to stop unprotected industrial action by certain employees at Port Melbourne factory and the CFMMEU – Commission found incidents of labour hire refusal, shift team leader refusal, stoppages and a Saturday absence constituted industrial action – USG Boral & CFMEU Port Melbourne Production & Distribution Employees Enterprise Agreement 2015 had not passed its nominal expiry date – unprotected industrial action found to be happening or probable but found no evidence action organised by the CFMMEU – orders against industrial action made in relation to employees – CFMMEU argued orders should be no longer than 24 hours – Commission stated 24 hours insufficient given industrial action by employees cannot be protected until nominal expiry date of Agreement has passed – orders effective until 31 July 2018. USG Boral Building Products P/L t/a USG Boral v Construction, Forestry, Maritime, Mining and Energy Union
July 6, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as store manager – dismissed for alleged fraudulent activity – Commission found no valid reason for dismissal – no warning of dismissal – no opportunity to respond – no procedural fairness – dismissal harsh, unjust and unreasonable – compensation assessed in accordance with Sprigg formula – ordered compensation of $22,329, taxed according to law. McGlashan v The Entrance Discount Variety P/L t/a The Base Warehouse
July 5, 2018
The queue for a hearing before Fair Work Commission goes around the block. Over 80 unfair dismissal/labour dispute applicants remain on the law list: Shoreline Caravan Park (Barone), A E Cartage Pty Ltd (Andersen), Coles Supermarket (De Maniel), Total Family Care Pty Ltd (Earle), Beninati Group P/L (Hutchinson), Comfort Management Pty Ltd (Yang), Southern Metropolitan Cemeteries Trust (Blackmore), Australian Self-Medication Industry Limited & Schoombie (Atkins), Windsor Leagues Club Ltd (Leonard), Australia Western Railroad Pty Ltd (Watson), E.L.K. Pty Ltd (Chadwick), ALH Group Ltd (Baines), Doutta Galla Aged Services Limited (Devi), ISS Facility Service (Virk), Ramsay Health Care (Buksh), Gold Coast Hospitality Services Pty Ltd (Ozturk), Japara (Pettit), The Hills Christian Community School Inc (Kelly), Commonwealth Bank of Australia (Zepidis), Boral Resources (NSW) Pty Limited & Burton (Kerslake), Drake Australia Pty Ltd (Baldacchino), Healthscope Operations Pty Ltd (Bridgwater), Platinum KS2 Pty Ltd ATF Platinum KS2 Trust (Kozmanyan), Australia Pty Ltd v Tait (Spinifex), Dampmaster Pty L td (Thititanavanich), Thai Waterfront Restaurant (Inkum), Darwin Formwork Pty Ltd (Stone), Omnigas Services Pty Ltd (Dunne), Extragreen Holidays (Aust) Pty Ltd (Qureshi), Virgin Mobile (Rook), Community Accommodation and Respite Agency (Heggernan), MyBudget Pty Ltd (Andrawos), Flinders University (Lynd-Stevenson), Telstra Corporation (Robertson), Zero In Pty Ltd (Barone), A E Cartage Pty Ltd (Andersen), Total Family Care Pty Ltd (Earle), Metro Trains Melbourne Pty Ltd (Crawford), Q Hospitality Group Pty Ltd (Lyons), NWQIC SS (James), Two Shores Holiday Village (Morley), ECS International Security and Investigations (Kumar), Tee-Zed Products Pty Ltd (Manna), Australian Concert & Entertainment Security Pty Ltd (Magpayo), Steller Residential Pty Ltd (Maher), Paston Pty Ltd (Masivoivoi), Illaroo Co-operative Aboriginal Corporation (Kelly), Ecolab (Rodriguez), St Vincent’s Hospital Melbourne (Horsburgh), Goulburn Valley Health (Ahmad), Victoria Police (Brierley, Chuck), MECWA (Pamamull), DCML Hodgson (Khaira), GV Hotel (Rogers), ACT Government – Transport Canberra and City Services (Rodger), Sensis Pty Ltd (Wiseman), Dick’s Pumping Service (Bonnes), The Uniting Church in Australia Property Trust (Q) (Keft), Sakuraya Holdings Pty Ltd (Dinh), Smithfield Smash Repairs Pty Ltd (Juras), African Communities Council of SA Inc (Gatabazi, Gabremariam), Maroochy Coach House Holdings Pty Ltd (Watson), Temahl (Aust) Pty Ltd (Goldspring), Commonwealth Bank Group (Haque), Elite Essential Trades Pty Ltd (Gauntlett-Gilbert), HCL Australia Services Pty Limited (Amba), G4S Australia Pty Ltd (Thomas), St Vincent de Paul Society (NSW) (McLane), Rosscarbery Holdings Pty Ltd (Jadach), The Islamic Society of Victoria Inc (Abou-Eid), Watpac Construction Pty Ltd (McNamara & McNamara and Others), Trustees of the Edmund Rice Education Australia (Butler), Sunshine Coast Labour Hire (Smith), Wet Fix Pty Ltd (Bennion), The Hills Christian Community School Inc (Kelly), ABC Transport (Stepanovich), Flehan Brothers Pty Ltd (Abete), Kioussis Nominees Pty Ltd (Mantovano).
