INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application by Viva Energy Refining (Viva) for order to stop industrial action by 83 employees – action in protest at proposal to deploy contractors to share the Emergency Response Operator roles – action in form of employees’ bulk resignation from Fire Auxiliary Team (Team) – Viva enterprise agreement requires employees to be members of Team – mass resignation not in compliance with enterprise agreement – Commission found unease among members of the Team about the contractor proposal did not pose an imminent safety risk – employees no longer holding themselves willing and ready to undertake duties of Team as per agreement – constitutes a ban or limitation on work – no doubt unprotected action was in place – order that unprotected action not occur made. Viva Energy Refining P/L v Jones and Ors
April 5, 2018
ANTI-BULLYING – bullied at work – order to stop bullying issued – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant detailed number of instances she believed constituted unreasonable behaviour by co-worker amounting to bullying – Commission found there had been no investigation into the bullying by the employer and thus no outcome to be taken into account – found behaviour constituted bullying – satisfied there is a risk that applicant will continue to be bullied at work – order to stop bullying issued. Ms Watts
April 5, 2018
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application for termination of the Viterra Ltd – Port Lincoln Enterprise Agreement 2012 – agreement passed nominal expiry date – long standing bargaining impasse – AWU opposed but declined to provide submissions and evidence in support – significant potential difference between enterprise agreement and modern award – reduction in rate of pay and redundancy entitlements – no undertakings provided by employer – whether termination contrary to the public interest – whether termination appropriate in light of considerations established under the Fair Work Act – mixed employee views about application with considerable apparent support for reversion to the modern enterprise award – on balance, termination of enterprise agreement not contrary to public interest and appropriate – relatively long delay until mid-August 2018 appropriate – termination made. Viterra Ltd – Port Lincoln Enterprise Agreement 2012
April 5, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal by appellant and 32 other employees of respondent from a decision of concerning a dispute under the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 – Agreement states that there shall be a ‘right of appeal’ so appellants do not need the permission of the Commission to bring appeal – issue concerned direction by employer that employees undertake certain tasks as part of their duties – employees argued long serving employees not required to follow direction due to custom and practices of workplace – relied on provision in Agreement which stated Agreement was not intended to alter custom or practice – decision at first instance found no custom or practice existed – Full Bench considered that custom and practice must be one that existed at the time Agreement was made – considered previous agreements that applied to employees – considered Con-Stan Industries – found custom and practice provision in Agreement existed against background that afforded employer right to direct employees – not satisfied custom and practices relied on by employees existed – appeal dismissed. Appeal by Paull and Ors against decision of Gregory C of 3 November 2017 [[2017] FWC 5751] Re: Linfox Australia P/L
April 5, 2018
TERMINATION OF EMPLOYMENT – contractor or employee – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – applicant lawfully changed name to that of his adopted family – was engaged by a labour hire company – applicant lawfully reverted to his birth name but continued to use names interchangeably – commenced placement with host business – accepted employment offer from host business but offer withdrawn due to concerns over the authenticity and inconsistency of applicant’s identification documents – applicant refused further work assignments from labour hire company – lodged unfair dismissal claims against labour hire company and host business – Commission rejected applicant’s claim he was jointly employed by both businesses – held applicant’s employment at host business did not meet six month statutory minimum period – held employment contract was not terminated at the initiative of the labour hire company – no jurisdiction to determine whether dismissal was harsh, unjust or unreasonable – application dismissed. Trakas v BPL Adelaide P/L and Anor
April 5, 2018
4 yearly review of modern awards – Award stage – Group 3 MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision deals with a small number of outstanding technical and drafting issues arising out of the awards in Group 3 and should be read in conjunction with the decisions issued on 6 July 2017 [[2017] FWCFB 3433] and 30 October 2017 [[2017] FWCFB 5536] which also deal with the Group 3 awards.
April 5, 2018
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appellant employed as a full-time fly in, fly out ‘Relief Project Manager’ – made redundant following outsourcing of her department to a third party contractor – application for unfair dismissal dismissed at first instance – permission to appeal granted on grounds of arguable case of appealable error with respect to genuine consultation – parties consented to determination on the papers – respondent had obligation to consult with appellant only if the appellant was covered by a modern award or enterprise agreement – respondent an employer in the hospitality industry to which the Hospitality Award applies – neither party submitted the award covered appellant’s employment – Full Bench satisfied that it did not – appellant also not covered by an agreement – therefore no obligation to consult – application dismissed. Appeal by Hallam against decision of Spencer C of 4 August 2017 [[2017] FWC 4105] Re: Sodexo Remote Sites Australia P/L
April 5, 2018
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – pursuant to s.73 of the Fair Work (Registered Organisations) Act 2009 the Commission fixed 27 March 2018 as the day upon which the amalgamation of the CFMEU, the MUA and the TCFUA was to take effect – AMMA and the MBA jointly lodged an appeal (for which permission to appeal is required) against the Decision – appeal listed for hearing on 9 April 2018 – application for stay of the Decision pending the hearing and determination of the appeal – Commission considered that although the appeal is arguable with some prospects of success, the balance of convenience did not weigh in favour of the grant of a stay order – application for stay order dismissed. Appeal by Australian Mines and Metals Association; Master Builders Australia Limited against decision of Gostencnik DP of 6 March 2018 [[2018] FWC 1017] Re: Construction, Forestry, Mining and Energy Union; Maritime Union of Australia; Textile, Clothing and Footwear Union of Australia
