A crowded house of forty-three unfair dismissal/employment dispute applications clutter the list of the Fair Work Commission this morning. The full complement includes: C.K. Jelsma & J Jelsma (Scaenes), Essential Energy (Campbell, Fitzgerald, Weekley), Alpine Designer Homes Pty Ltd (Olcayto), CPS Complete Plumbing Solutions Group Pty Limited (Savage), Construction Sciences (Dore), Nine West Australia Pty Ltd (Misoyannis), Arnott’s Biscuits Limited (Gielis), M & CK Engineering Services (WA) Pty Ltd (Rawlinson), Westpac Banking Corporation (Lecaude), Local Trade Specialist Group Pty Ltd (Bennett), Monash Health (Garnick), Tenix Solutions Pty Ltd (Stockman), Ramsay Health Care (Ho), G4S Custodial Services Pty Ltd (Lee), Transdev Melbourne Pty Ltd (Rivera), Foot & Thai Massage Pty Ltd (Durado, Isugan), Flight Centre Travel Group (Duperouzel), Southern Cross Care (Qld) Inc (Weekes), Department of Health (Blandford), Linx Stevedoring Pty Ltd (Hicks), Reece Pty Limited (Miles), Timberlink Australia Pty Ltd (Rembowski), Positive Group Australia Pty Ltd (Gordon), Atomix Design Pty Ltd (Stewart), Business Risks International Pty Limited (Baker), Cruise 1st Australia Pty Ltd (Seift), ResMed Limited (Tran), Sydney International Container Terminals Pty Limited (Colwell), Vogue Fashion Management Pty Ltd (O’Connell), Australian Pharmaceutical Industries Ltd (Chisari), P&G Growth Pty Ltd (Kabura), State of Victoria [Department of Education & Training] (Freeman), Parkinson’s Victoria Ltd (Speirs), Woolworths Limited (Lin), The Trustee for Dun & Bradstreet Unit Trust (Chatterton), Business Risks International Pty Limited (Baker), Mayfield Education Inc (An), Bee Cos We Care Pty Ltd (Phillpot), Australian Criminal Intelligence Commission (Suiter), Caltex Refineries (Qld) Pty Ltd (Stanes).
December 15, 2017
Twenty-four unfair dismissal/labour dispute applications will be heard by the Fair Work Commission today. The full list is: Cardboard King Assets Pty Ltd (Farrugia), Rail Industry Safety & Standards Board (Bonnar), Woodhams International Pty Ltd (Limmer), Wettenhalls (McCormack), Bondi’s Best Hall Street (Moffa), Mary Donald Nominees Pty Ltd (Awad), Big Small Biffo Pty Ltd (Tilston), MSS Security Pty Ltd (Sullivan), Compass Group (Australia) Pty Ltd (Kapeli), Bansley Pty Ltd (Bako), Bank of Queensland Limited (Chan), Gippsland Southern Rural Water Corporation (Johnson), The Nuance Group (Australia) Pty Ltd (Liang), Whitehorse City Council (Gardner), National Australia Bank Limited & McCroary and Others (Avey), Pelican Childcare (Tauafao-Ale), Cape Pty Ltd (Cooper), Laminex Australia Pty Ltd (O’Dwyer), Giorgio Group Holdings Pty Ltd (Leggenda), Whirwind Print Pty Ltd (Peckham), Act Government Payroll (Cao), Walpett Engineering Pty Ltd (Cabalt), Department of Human Services (Ford), Metricon Homes QLD Pty Ltd (Sachdeva).
December 15, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394, 604 Fair Work Act 2009 – appeal – Full Bench – application for relief from unfair dismissal – appellant employed by respondent on series of time-limited contracts – at end of term of last contract on 30 June 2016, respondent did not offer appellant further contract – appellant contended this constituted dismissal within meaning of s.386(1)(a) FW Act and that employment was terminated at initiative of employer – respondent contended there was no dismissal and that the employment terminated through effluxion of time – at first instance, Commission considered itself bound by Lunn and held there was no dismissal at initiative of employer – Commission further found that anti-avoidance provision in s.386(3) of FW Act did not apply – appellant appealed on two grounds: that Commission erred in relying on Lunn and that Commission erred in finding anti-avoidance provision in s.386(3) not engaged – permission to appeal granted by Full Bench in decision [[2017] FWCFB 4092] on 12 July 2017 in relation to first ground only – Majority Decision: considered whether interpretation and application of s.386(1)(a) should continue to be guided by Lunn – majority ruled that Lunn did not correctly or completely state proper approach to interpretation of expression ‘termination of employment at the initiative of the employer’ in s.170CD(1) of Workplace Relations Act and its application to circumstances of person employed on time-limited contract(s) – majority held that because Commission in first instance considered itself bound to follow Lunn despite reservations about its correctness, its consideration of whether appellant was dismissed within meaning of s.386(1)(a) was ‘artificially constrained’, constituting appealable error – majority considered whether exclusion in s.386(2)(a) applied – as final contract of employment provided unqualified right for either party to terminate contract on four weeks’ written notice or four weeks’ pay in lieu of notice, majority held that contract was not for specified period and so s.386(2)(a) exclusion did not apply – appeal upheld – decision at first instance quashed – matter referred back to Commission for re-determination – Minority Decision: minority ruled that there was no termination of employment by respondent and rather, it decided not to enter into a new employment relationship – further held that the end of employment relationship came about as a result of the expiry of the contract by effluxion of time – minority also ruled that circumstances of the case fell within s.386(2)(a) exclusion and recommended the appeal be dismissed. Appeal by Khayam against decision of Hunt C of 22 May 2017 [[2017] FWC 1524] Re: Navitas English P/L t/a Navitas English
December 15, 2017
CASE PROCEDURES – appeals – ss.394, 400, 604, Fair Work Act 2009 – permission to appeal – Full Bench – appellant alleged errors of fact and law in first instance determination that the dismissal of Mr Lewis was harsh, unjust and unreasonable [[2017] FWC 4023] – appellant alleged the Commission erroneously applied established legal principles and made significant errors of fact – argued these matters were relevant to the public interest – Full Bench found no diversity of decisions at first instance requiring guidance from an appellate body – principles settled – appeal did not raise issues of importance or general application – did not manifest an injustice or counterintuitive result – found the legal principles applied by the Commission were not disharmonious with other decisions dealing with similar matters – public interest therefore not enlivened – permission to appeal refused. Appeal by Go To Court Franchising P/L t/a Go To Court Lawyers against order of Hunt C of 31 October 2017 [PR597245] Re: Lewis
December 15, 2017
REGISTERED ORGANISATIONS – records and accounts – inspection – s.483AA Fair Work Act 2009 – application by Maritime Union of Australia (MUA) to inspect non-member records at Manly Fast Ferry P/L (Manly) – long-running dispute over which modern award should be applied for the purposes of the better-off overall test (BOOT) in enterprise agreement negotiations – MUA submitted it was preparing prosecutions for a suspected breach by Manly of the Ports, Harbours and Enclosed Water Vessels Award 2010 (Vessels Award) for underpayment of wages – allegedly incorrect payslip issued to employee – Commission of the view that it must be satisfied access to records is necessary to investigate suspected contravention – Commission not satisfied access to non-member records was necessary, as MUA submitted it had member records which supported its suspicion of underpayment – Commission not prepared to grant access to non-member records – not satisfied that one allegedly incorrect payslip from over two years ago establishes many suspected breaches justifying granting of orders sought – not satisfied orders proposed were necessary to investigate suspected breach of Vessels Award – application dismissed. The Maritime Union of Australia
December 15, 2017
RIGHT OF ENTRY – dispute over right of entry – discussions – s.505 Fair Work Act 2009 – applicant sought order that respondent allow and not intentionally hinder or obstruct its permit holders from exercising rights of entry under FW Act – sought order that respondent place in prominent position in each meal room a notice to relevant employees regarding applicant’s right to hold discussions during meal or other breaks in lunchrooms and that it is an offence for respondent to hinder or obstruct such discussions – whether applicant could use both lunchrooms A and B for discussions or only lunchroom A – statutory construction – meaning of s.492(3) FW Act – meaning of ‘any’ – Commission found ‘any’ may be used to signify each and every room or area, no matter how many – noted that relevant employees are able to use both lunchrooms for taking meal or other breaks – held that relevant permit holder is entitled to use either or both lunchrooms where they have entered site pursuant to s.484 and cannot agree with respondent on location of discussions – held that respondent’s refusal to allow permit holders to use lunchroom B inconsistent with permit holders’ rights under s.492(3) – no orders made – applicant given liberty to apply for orders by no later than 28 February 2018 if dispute continues. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Ceres Natural Foods P/L t/a Pure Harvest
December 15, 2017
REGISTERED ORGANISATIONS – cancellation of registration – s.30(1)(a) Fair Work (Registered Organisations) Act 2009 – r.34 Fair Work Registered Organisations Regulations 2005 – application by Victorian Association of Forest Industries to cancel its own registration – Commission satisfied requirements in 30(1)(a) of RO Act and r.34 of Regulations complied with – no apparent Commission grounds aware of which would provide basis for declining application – application granted – order issued – registration cancellation to take effect on an from 8 December 2017. Victorian Association of Forest Industries
December 15, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – Person A resigned and made four separate allegations of improper conduct against applicant – Person A was first female trainee employed at the mine and was 19 years old – allegations of sexual harassment – alleged breach of ‘Anglo American Equal Employment Opportunity and Anti-Bullying Policy’ and Guiding Values – applicant dismissed after investigation – test in Briginshaw considered – Commission not satisfied clear and cogent proof supported the allegations – valid reason for termination not made out – found dismissal harsh, unjust and unreasonable – Commission ordered reinstatement and continuity of employment and service. Wilson v Anglo Coal (Moranbah North Management) P/L t/a Anglo American
