MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – Full Bench convened to hear and determine a number of claims involving public holiday provisions in various modern awards – AIRC Public Holiday Test Case remains relevant however was determined in a different statutory context – SDA non-working day claim rejected – weekend public holiday, substitute day/Christmas day claims – general provision dealing with substitute public holidays not appropriate or necessary – HSU claim in relation to Christmas Day in some modern awards operating in the health and related sectors subject to further conference – AMWU claim rejected – Commission will also shortly program the AHA claim relating part-day public holidays. 4 yearly review of modern awards – Public Holidays
March 19, 2018
REGISTERED ORGANISATIONS – registration – s.18(a) Fair Work (Registered Organisations) Act 2009 – application for registration as federally registrable association of employers – Commission satisfied that grounds for registration as organisation were met in each instance – application granted – to take effect on and from Friday, 9 March 2018. National Retail Association Ltd, Union of Employers
March 19, 2018
REGISTERED ORGANISATIONS – amalgamation – s.73 Fair Work (Registered Organisations) Act 2009 – ballots approved a proposed amalgamation between the CFMEU, MUA and TCFUA (applicant organisations) – consideration given to whether a day should be fixed as the day on which the amalgamation is to take effect – AMMA and MBA opposed to amalgamation – whether there were any relevant proceedings pending against applicant organisations – significant number of proceedings pending against CFMEU and MUA – proceedings described as ‘civil penalty proceedings’ – s.73(2)(c) of the RO Act excludes ‘civil proceedings’ from the kind of pending proceedings that would prevent the Commission from fixing an amalgamation day – Commission satisfied the outstanding civil penalty proceedings were ‘civil proceedings’ – satisfied the requirements of s.73 met – amalgamation of the applicant organisations to take effect from 27 March 2018. Construction, Forestry, Mining and Energy Union; The Maritime Union of Australia and Textile, Clothing and Footwear Union of Australia
March 19, 2018
CASE PROCEDURES – revoke or vary decision – s.603 Fair Work Act 2009 – Full Bench – three applications for revocation of Appeal Decision [[2017] FWCFB 2741] – Appeal Decision remitted Proposed Agreement for rehearing and determination – these three applications followed recent Federal Court judgements – respondent submitted s.603 does not provide further stage of appeal – no change in factual circumstances – no incomplete or false information – appellants contended s.603 not limited to circumstances of incomplete or false information or a factual change in circumstances – appellants asserted appeal was not complete – Appeal Decision should be revoked and determined to finality – Full Bench not persuaded that any case law justifies revoking the Appeal Decision – no change in circumstance arises as a result of the Federal Court judgements – Gostencnik DP to rehear and determine the matter as per Appeal Decision – applications dismissed. Construction, Forestry, Mining and Energy Union, the Australian Manufacturing Workers’ Union & the Australian Workers’ Union v BGC Contracting P/L
March 19, 2018
CASE PROCEDURES – appeals – permission to appeal – s.604 Fair Work Act 2009 – appeal against Commission’s decision to adjourn unfair dismissal proceedings instituted by respondents – respondents dismissed for organising unlawful industrial action in form of overtime bans – appellant currently has proceedings on foot in Federal Court of Australia relating to overtime bans – respondents not party to these proceedings – respondents requested Commission vacate Directions pending conclusion of Federal Court proceedings – Commission exercised discretion in granting application and vacating Directions – appeal concerned whether Commission erred in exercise of discretion – Full Bench not persuaded that appellant demonstrated proper basis for permission to appeal – no public interest – no arguable case of error – permission to appeal refused. Appeal by Visy Board P/L t/a Visy Board against decision of Bissett C of 11 December 2017 [[2017] FWC 6463] Re: Rustemovski and Anor
March 19, 2018
TERMINATION OF EMPLOYMENT – costs – s.394 Fair Work Act 2009 – application for unfair dismissal – application dismissed on basis that applicant unreasonably failed to comply with directions and attend non-compliance hearing – respondent filed application for costs against applicant for costs of engaging consultant – Commission replied that respondent had not disclosed use of representative in proceedings – respondent submitted that consultant engaged to assist in defence but not to speak on the respondent’s behalf – submitted that consultant did not act as a representative according to the guidelines under the Form F3 – Fitzgerald considered – Commission satisfied work undertaken by consultant broad enough to be captured within the scope of representation by a paid agent – found respondent not precluded from making application for costs – found that response to Form F3 should not count against respondent – applicant directed to file submissions relating to application for costs by 20 March 2018, otherwise matter will be determined on material currently filed – in event applicant provides submission, respondent directed to file submission in reply by 27 March 2018. Taiepa v Shinsen Taijutsu P/L t/a MMA247
March 19, 2018
Binding agreement – TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – s.394 Fair Work Act 2009 – applicant dismissed for serious misconduct and made application for relief from unfair dismissal – respondent made application to dismiss application – claimed applicant failed to discontinue application after settlement agreement between parties reached – Commission found neither party prepared to accept other’s proposed settlement terms – Commission not satisfied that binding agreement existed – application by employer dismissed.
March 19, 2018
Costs application – CASE PROCEDURES – costs – s.611 Fair Work Act 2009 – substantive application made by applicant under s.739 Fair Work Act for Commission to make determination for underpayment dispute arising under Clerks’ Private Sector Award 2010 – respondent submitted applicant acted vexatiously is making claim – respondent sought costs – Commission found no basis for this claim – found respondent had not established the conditions precedent under the Act – application dismissed.
