ENTERPRISE AGREEMENTS – greenfields agreement – ss.175, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission approved the CPB Contractors (Victoria) Civil Framework Agreement 2017 (Agreement) made by CPB Contractors P/L (CPB) and the Australian Workers’ Union – CFMMEU opposed approval of Agreement – not a bargaining representative – CFMMEU permitted to make submissions and appear at appeal hearing – question on appeal was whether enterprise was a genuine new enterprise – evidence supported that enterprise existed at time Agreement was made – not genuine new enterprise – jurisdictional fact in s.172(2)(b)(i) of FW Act not made out – appeal upheld – approval decision quashed – application to approve Agreement dismissed. Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decision of McKinnon C of 23 February 2018 [[2018] FWCA 1187] Re: CPB Contractors P/L and The Australian Workers’ Union
June 29, 2018
GENERAL PROTECTIONS – workplace rights – arbitration – s.365 Fair Work Act 2009 – applications to deal with contraventions involving dismissal – respondent conceded contravention of s.351(1) of FW Act – respondent asserted exceptions in s.351(2)(a) and (b) – inherent requirements of Cultural Heritage Officer position – whether there is an inherent requirement to be a Barada Barna person – whether respondent genuinely or honestly believed the applicants were not Barada Barna – substantive and operative reason for dismissal was failure to provide proof of heritage – Commission found failure to provide proof not a positive conclusion that applicants were not Barada Barna – impact of Stolen Generation – respondent failed to meet evidentiary burden to satisfy exceptions in s.351(2)(a) and (b) – matter relisted for further submissions on remedy. Roos and Ors v Winnaa P/L
June 27, 2018
The Fair Work Commission has 36 claims queued for hearing. The list includes: Catholic Education, Archdiocese of Brisbane (Humphrey), Logic Entry Australia Pty Limited (Liang), Seville Butchers & The Old Butchers Shop Cafe (Schiffers Menker), PERC Group Pty Ltd (Barratt-Hassett), Infinity Rings Pty Ltd (Capanoglu), Looksmart Alterations Pty Ltd (Leise), White Sneakers Pty Ltd (Wignall), Ambulance Victoria (Hay), G4S Custodial Services Pty Ltd (Guzzardi), Edge Commercial Interiors & Mafrici (Makripoulias), Camperdown Pwder Pty Ltd (Kuruppu), Southern Cross Care (Tas) Inc (Joy), DHL Supply Chain (Australia) Pty Ltd (Burek), T&W Convenience Store (Moylan), Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Adler), Sunfresh Health Pty Ltd (Gooley), Coffs Harbour Support Services Ltd (Naylor), Centahealth Menai General Practice (Di Lucca), TAFE NSW (Sebben), Student Concierge Company Pty Ltd & The Challbion Pty Ltd and Another (Liu), Commonwealth Bank of Australia (Crosby), Empire Built (NSW) Pty Ltd (Buckley), Australia Western Railroad Pty Ltd (Parkin), D&T Refrigeration Pty Ltd (Ridsdale), Woolworths Group Limited (Sharma), Fresh Cheese Co (Aust) Pty Ltd (Viceconte & Condello), Aeramix Pty Ltd (Lauricella), Effective Legal Solutions (Leddy), St Vincent’s Hospital Melbourne Pty Ltd (Dobler), Doutta Galla Aged Services Limited (Devi), Programmed Skilled Workforce (and related bodies corporate within the Programmed Group of Companies) (Fitzpatrick), Vivid Home Builders Pty Ltd & Port (Bowers), NSG Graphics Pty Ltd (Peterson), Australian Municipal Clerical Services Union Queensland Together Branch (Watson), Australian Electoral Commission (Nemcic), MAT Finance Pty Ltd (Beall).
June 26, 2018
A lengthy queue of unfair dismissal/labour dispute applicants is lined up for a hearing before the Fair Work Commission. The lawlist includes: Woolworths Limited (Croxford), Highway NN Pty Ltd (Dixon), Cowra Tyre & Brake Centre Pty Limited (Davis), Jonathan Arulnayagam (Chinnasamy), Priava Pty Limited (Pendlebry), EBYS Pty Ltd ATF The Tamborine Mountain Subway Trust (Leeson), MyBudget Pty Ltd (Andrawos), The Hills Christian Community School Inc (Kelly), Country Acres (Hall), Demoni Pty Ltd (Vidler), Fleet Safety Service (Palmer), Meat Inspectors Pty Ltd (Hana), Fresh Cheese Co (Australia) Pty Ltd (Dell’anno), Trustee for the Two Towers Discretionary Trust (Wallis), Tiger Rivers Industries Pty Ltd (Viney), Patrick Projects Pty Ltd (Deeney, Hughes, Park, Seiffert), City of Perth (Dawson & Khasim and Otehrs, Radford, Taho), Alexandra Club Inc (Fanning), Kelly Logistics (Kefford), Nyrstar Hobart Pty Ltd (Brain), Louis Valentino Porcellanato Pty Ltd (Kandalaft), E.L.K Pty Ltd (Chadwick), Victoria Police (Brierley, Chuck), Lecky’s Electrical Wholesale Pty Ltd (Rawson), Integratedliving Australia (Bonthrone), Reward Hospitality (Lynch), PPNQ Operation Pty Ltd (McKay), AAI Limited (Lissington), Sirius Well Manufacturing Services Australia Pty Ltd (Richardson), NRG Gladstone Operating Services Pty Ltd (Brown, Lamb), Sakuraya Holdings Pty Ltd (Dinh), Eagers MD Pty Ltd (Eaton), Fuji Xerox Australia Pty Ltd (Kumar), ENEJGY Pty Ltd (Davis), Senator Brian Burston (Kelly), Durri Aboriginal Corporation Medical Service (Skinner), LEAP Legal Software Pty Limited (Elliott), Meat Inspectors Pty Ltd (Hana).
June 22, 2018
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
