Twelve applicants await their day in the Fair Work Tribunal. The unfair dismissal/labour dispute lawlist is: Pittwater RSL Club Inc (Caruso), Pizza Pizza Pty Ltd (Coles), Delicado Foods Pty Ltd (Mbengue), FOODORA Australia Pty Ltd (Klooger), Warrigal Care (Poposki), David Jones Limited (Strohfeldt), Teleperformance Australia (Sharma), Trustee for Maddingley Montessori Centre Unit Trust (Yadav), Nexus Inc (Prichard), Artha Property Group Pty Ltd (Dunn), Powerflow Systems Pty Ltd (King), BOGEYE Pty Ltd (Tweedie).
July 4, 2018
An application for variation of the FlameSafe Fire Protection Pty Limited and the CEPU NSW Union/NFIA NSW Sprinkler Fitting/Fire Protection Enterprise Agreement NSW & ACT 2015-2019 (s.210 – Application for approval of a variation of an enterprise agreement) is being sought from Deputy President Gostencnik in his Melbourne chambers.
June 29, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.589, 739 Fair Work Act 2009 – dispute referred to Commission under s.589 of FW Act – concerned whether employer had right to further implement fatigue alerting and distraction monitoring system and DVR Cameras recording footage of the driver and the road – Commission satisfied the continuous footage was capable of enabling employer to meet its obligation to ensure that work is performed in accordance with clause on safe systems of work of the Toll – TWU Enterprise Agreement 2017-2020 – capacity for footage to be used for a purpose other than to ensure safe driving adequately dealt with by policy – employer evidence established no safety concerns with DVR cameras – not persuaded that safety and privacy concerns should act as a barrier to the further implementation of the fatigue monitoring and DVR Cameras – Commission found reasonable step to ensure a safe system of work, pursuant to the Agreement. Toll Transport P/L t/a Toll Shipping v Transport Workers’ Union of Australia
June 29, 2018
TERMINATION OF EMPLOYMENT – contractor or employee – termination at initiative of employer – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent was labour hire business – applicant assigned to work as a casual employee at the Department of Justice (DOJ) – DOJ expressed concerns to respondent about applicant’s performance – respondent advised applicant her assignment had ceased without providing reasons – respondent submitted that while assignment had ceased, employment continued – ‘the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal’ [Kool v Adecco] – Commission found that applicant had a reasonable expectation of continuing employment and worked on a regular and systematic basis – applicant not given an opportunity to respond to performance concerns – dismissal harsh, unjust and unreasonable – reinstatement not appropriate – ordered compensation of $15,000. Tait v Spinifex Australia P/L t/a Spinifex Recruiting
June 29, 2018
ANTI-BULLYING – constitutionally-covered business – s.789FC Fair Work Act 2009 – application for an order to stop bullying – respondent objected on the ground that it was not a constitutionally covered business and that the applicant did not meet the definition of ‘at work’ – Commission found applicant was employed by the government of New South Wales but that this did not preclude her from being ‘at work’ in the respondent – further found that the respondent is a constitutional corporation as it engages in sufficient trading activities to warrant the characterisation as a trading corporation – objections dismissed – applicant eligible to make application for order to stop bullying – matter to be listed for mention and directions. Ms Leeman
June 29, 2018
ENTERPRISE AGREEMENTS – approval – ss.185, 186, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against approval of the Project Agreement 2017 – appellants contested that Commission erred in determining compliance under ss.180, 186, 188 of FW Act and subsequently erred in the approval of the agreement – appellants contended Commission erred in its determination of five issues – Full Bench need consider only the appellants’ challenge to the first of these issues, namely that the Commission erred in concluding that s.180(3) had been complied with – Full Bench found that CBI Constructors did not take reasonable steps to notify the relevant employees of the voting method nor time and place at which the vote of the agreement would occur at the start of the access period for the agreement – s.180(4) is to be construed on the basis that the access period consists of seven clear calendar days, and that by the application of s.36(1) of the Acts Interpretation Act 1901 (Cth) the access period ends at the end of the calendar day immediately preceding the day on which the voting process for a proposed agreement commences – unnecessary to determine other four grounds of appeal – permission to appeal granted – appeal upheld – first instance decision quashed – agreement dismissed. Appeal by Construction, Forestry, Maritime, Mining and Energy Union and Ors against decision of Colman DP of 19 December 2017 [[2017] FWCA 6837] Re: CBI Constructors P/L
June 29, 2018
TERMINATION OF EMPLOYMENT – high income threshold – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission upheld respondent’s jurisdictional objection – found appellant’s salary exceed high income threshold and he was not covered an industrial award or agreement – permission to appeal granted – Full Bench persuaded that Commission had not examined vehicle use relevant to business and personal travel – persuaded of unusual circumstances regarding car allowance and fuel expenses – appeal upheld – Full Bench satisfied Commission erred by not examining business versus private use of vehicle – found no regard had for calculation in [Fewings] – satisfied Commission not provided with details of fuel reimbursement – appeal upheld – decision quashed – matter remitted to Commissioner for rehearing on question of high income threshold. Appeal by Monteiro against decision of Bissett C of 21 March 2018 [[2018] FWC 1520] Re: Valco Group Australia P/L t/a Valco Group Australia
June 29, 2018
CASE PROCEDURES – appeals – s.604 Fair Work Act 2009 – s.73 Fair Work (Registered Organisations) Act 2009 – appeal – Full Bench – appeal against Commission’s decision to amalgamate three registered organisations – whether the statutory prerequisite for the fixing of an amalgamation day in s.73(2)(c) of RO Act satisfied – appellants contended that the Commission erred in its construction of the expression ‘civil proceedings’ in s.73(2)(c) and consequently erred by fixing an amalgamation day – Full Bench satisfied that the conclusion reached at first instance was correct – the expression ‘civil proceedings’ in s.73(2)(c) bears its ordinary meaning and includes civil penalty provisions – permission to appeal granted – appeal dismissed. Appeal by Australian Mines and Metals Association Inc; Master Builders Australia Limited against decision of Gostencnik DP of 6 March 2018 [[2018] FWC 1017] Re: Construction, Forestry, Maritime, Mining and Energy Union
