TERMINATION OF EMPLOYMENT – costs – ss.400A, 402, 611 Fair Work Act 2009 – application made by Charles Parletta Real Estate (CPRE) following dismissal of earlier unfair dismissal application – first instance application dismissed as Commission found Ms D’Ortenzio’s termination was not harsh, unjust or unreasonable – CPRE claimed application was brought vexatiously without reasonable cause – Commission found first instance application made vexatiously and had no reasonable prospects of success; and that continuing the matter was unreasonable – costs awarded against applicant on a party-party basis from 8 August 2017 and on an indemnity basis from the conclusion of Ms D’Ortenzio’s evidence on 29 November 2017 – parties have 14 days to agree the quantum of costs otherwise CPRE is to lodge the assessment in the Commission. Charles Parletta Real Estate P/L v D’Ortenzio and Anor
June 22, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed to provide secure monetary transportation services – dismissed for engaging in excessive and unnecessary conversation with staff and customers of respondent’s clients – Commission found applicant’s conduct constituted serious misconduct – found valid reasons for dismissal – Commission took into account the procedure adopted by the respondent in the investigation into the applicant’s conduct – found procedure involved ‘serious deficiencies’ – because of significant and important procedural deficiencies the dismissal was unreasonable and therefore unfair – ordered compensation of $8,592. Jarmain v Linfox Armaguard P/L
June 22, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal – applicant employed as firefighter – dismissed due to serious misconduct in relation to a positive drug test – Commission considered respondent’s ‘Fair Play model’ for managing workplace behaviour – Wagstaff considered – satisfied applicant’s ‘reckless breach of the Drug and Alcohol Procedure’ provided a valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Sheldon-Collins v Broadspectrum (Australia) P/L [formerly Transfield Services (Australia) P/L] t/a Broadspectrum
June 22, 2018
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision deals with the re-drafting of a number of clauses identified as ‘standard clauses’ – in decisions on 28 August 2017 [[2017] FWCFB 4419] and 18 October 2017 [[2017] FWCFB 5258] the Full Bench finalised six standard clauses – this decision primarily concerned with standard clause E, Termination of Employment – revised model standard term is set out at Attachment 1 to decision. 4 yearly review of modern awards – Plain language re-drafting – Standard clauses
June 21, 2018
Forty-nine applicants are queued for a determination by the Fair Work Commission. The full unfair dismissal/labour dispute lawlist is: Floor Grinding Services Pty Ltd (O’Connell), Port Authority of New South Wales (Ansell), Oldfields Holdings Limited (Politis), The Star Pty Ltd (Gurdil), Tee-Zed Products Pty Ltd (Manna), Workforce Variable Pty Ltd (Toma), White Sneakers Pty Ltd (Wignall), Victoria Police (Brierley, Chuck), The Cake Syndicates (Defa), Oasis Bakery Pty Ltd (Haidar), Doutta Galla Aged Services Ltd (Infante), KDR Victoria Pty Ltd (Moran), Eddie Williams Locksmiths (Bayes), Imapct Community Services Inc (Childs), Australian Leisure and Hospitality Group Pty Limited (Holder), Lutheran Church of Australia Queensland District (Hannah), Australian Electoral Commission (Nemcic), Vallec EP Pty Ltd (Green), ISS Facility Services Australia (Zidov), Adelaide Oval Stadium Management Authority (Lennon), Boral Cement Limited (Hawkins), The Whole Box n Dice (Hall), Anwar Alesi (Buenaobra), TNT Australia Pty Limited (Murray), Rincon Australia Pty Ltd & Rincon Australia Pty Ltd (Rabel), Seven Network (Operations) Ltd (Andrews), The Star Entertainment Group (Liu), David Jones Limited (Strohfeldt), Patrick Projects Pty Ltd (Deeney, Hughes, Park, Seiffert), Terry Truck Rentals Pty Ltd (Nankiville), Medibank Private Garrison Health Services (Kinross), Aeramix Pty Ltd (Lauricella), TIOBE Pty Ltd (Chen), Qube Logistics Vic. Pty Ltd (Davidson), Peoplesmove Pty Ltd (Cranson), Infosys Technologies Pty Ltd (Sriram), Patrick Robinson and Co (Licastro), Serco Australia Pty Ltd (Romig), Ackar Pty Ltd (Lee), Parkinson’s Queensland Pty Ltd (Hislop), Airbus Australia Pacific (Page), Tutor2You Australia Pty Ltd (Poyton), AAI Limited (Lissington), Foundation Early Learning Limited (Manuel), Uniting Care Queensland (Wenman).
June 21, 2018
ENTERPRISE AGREEMENTS – fairly chosen – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the application for approval of the MTP Enterprise Agreement 2016 was dismissed – Thiess appealed the Decision – the Full Bench granted Thiess permission to appeal and upheld its appeal in its decision published on 23 May 2017 [[2017] FWCFB 2459] – the Full Bench did so on the basis that the Commission erred in his conclusion that the employees who voted to approve the Agreement were not covered by the Agreement with the consequence that the Commission was not satisfied that the employees genuinely agreed to the Agreement as required by s.186(2)(a) of the FW Act – the Full Bench did not think it necessary to decide the other grounds of appeal as the Commission had not finally decided those matters – CFMMEU applied for relief in the nature of certiorari and mandamus to the Full Court of the Federal Court – the Full Court concluded that the Full Bench had erred in its reading of the Decision and that it should have, but did not, decide the other grounds of appeal raised by Thiess [[2017] FCAFC 179] – the appeal was remitted to the Full Bench to determine the remaining appeal grounds – the remaining grounds of appeal as disclosed in the notice of appeal related to fairly chosen grounds and genuinely agreed grounds – in relation to the fairly chosen grounds the Full Bench found that the group of employees covered by the Agreement was organisationally distinct and there were no material factors which would otherwise weigh against a conclusion that the group was fairly chosen – regarding the genuinely agreed grounds the Full Bench found the Commission’s conclusion that ‘the three maintenance employees had no stake or direct interest in the terms and conditions of the majority of potential employees who would be covered by the Agreement should Thiess get the contract’ could not be sustained – permission to appeal granted – appeal upheld – decision at first instance quashed – application for approval of the MTP Enterprise Agreement 2016 remitted to Commissioner Lee to determine having regard to our conclusions as to the issues agitated in this appeal. Appeal by Thiess P/L against decision of Roe C of 6 February 2017 [[2017] FWC 718] Re: Construction, Forestry, Maritime, Mining and Energy Union
June 21, 2018
ENTERPRISE AGREEMENTS – workplace determination – s.266 Fair Work Act 2009 – Full Bench – application for industrial action related workplace determination in relation to the Department of Home Affairs (Department) – statement to assist parties preparing to implement key components of the workplace determination – workplace determination to provide total wage increases of 7 per cent over two years – two instalments – 4 per cent from the date of this statement and 3 per cent 12 months after the date the workplace determination is made – determination will be made as soon as possible – Full bench observed implementation of initial wage increase via a determination under s.24 Public Service Act 1999 (Cth) could minimise administrative burden. Commonwealth of Australia represented by the Department of Home Affairs
June 21, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed from childcare centre for gross misconduct – respondent claimed CCTV footage showed applicant manhandling children – despite presence of Team Leader during conduct respondent did not call upon them to provide evidence – respondent took no steps to investigate conduct before dismissing applicant – Commission found conduct, though unprofessional, did not amount to serious misconduct – found no valid reason for dismissal as conduct warranted warning and further training, not dismissal – Commission also considered factors such as respondent’s failure to provide applicant with notification or opportunity to respond in finding dismissal harsh, unjust and unreasonable – dismissal unfair – remedy to be determined. Yadav v Maddingley Montessori Centre P/L
