ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – ss.592, 739 Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedure in the Teekay Shipping (Australia) P/L/AIMPE (Engineer Officers) Government Service & Security Fleet Enterprise GSS Agreement 2011 – dispute not resolved at conferences – AIMPE asked Commission to make recommendation or express opinion to resolve dispute – Teekay objected on basis that it would require exercise of judicial power – Commission held that power to make recommendation or express opinion was to be exercised on discretion – Commission decided not to exercise discretion to make recommendation or express opinion – application dismissed. Australian Institute of Marine and Power Engineers, The v Teekay Shipping (Australia) P/L
April 5, 2018
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
