ENTERPRISE AGREEMENTS – fairly chosen – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance, Commission dismissed application by appellant for approval of Aerocare Collective Agreement 2017 (Agreement) on two bases: Commission not satisfied that group of employees covered by Agreement were fairly chosen and Commission not satisfied that Agreement passed BOOT – further, Commission held that any undertakings about BOOT concerns would amount to substantial changes to Agreement – appellant appealed on basis that Commission erred in making the above findings – permission to appeal granted in relation to ‘fairly chosen’ ground – Full Bench considered exclusion of casual employees from bargaining process and proposed agreement, where casual employees previously covered by pre-existing 2012 Agreement and Notices of Employee Representational Rights to initiate bargaining process were sent to casual employees – Full Bench held that ‘abrupt’ decision to exclude casuals would provide reasonable conclusion that group of employees covered was not fairly chosen – Full Bench rejected appeal ground that Commission erred in concluding ‘fairly chosen’ requirement was not satisfied – as ‘fairly chosen’ requirement not satisfied, remaining appeal grounds need not be considered as Agreement would not be approved – parties granted opportunity to make submissions about further disposition of appeal to be filed on or before 5.00pm Monday 4 December 2017. Appeal by Aerocare Flight Support P/L t/a Aerocare Flight Support against decision of Wilson C of 31 August 2017 [[2017] FWC 4311] Re: Transport Workers’ Union of Australia and Anor
December 8, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute about appropriate classification of applicant under Boral Concrete Testers and Australian Workers Union Workplace Agreement 2007-2010 (2007 Agreement), the Boral Concrete Testers Enterprise Agreement 2011 (2011 Agreement), and the Boral Concrete Testers Enterprise Agreement 2013 (2013 Agreement) – applicant classified as Tester Grade 3 – Commission could not consider issue under 2007 Agreement as applicant did not engage dispute resolution procedure in that Agreement – Commission found applicant had not performed all duties of a supervisor and should not be classified as supervisor while covered by 2011 Agreement – found applicant was not able to perform requirements of a Grade 4 classification as defined in 2013 Agreement – determined that at all times whilst covered by the 2011 and 2013 Agreements, applicant not entitled to be classified as Tester Grade 4 or Supervisor – however, Commission noted respondent’s inconsistent treatment in classifying employees as two other employees were classified as Tester Grade 4 although they did no more than Tester Grade 3 work – Commission recommended respondent pay applicant an amount equal to half the difference between Tester Grade 3 and Tester Grade 4 – no obligation on respondent to adopt recommendation from Commission. The Australian Workers’ Union v Boral Resources (Vic) P/L
December 8, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as a Work Health and Safety Officer – role involved ensuring compliance with Work Health and Safety requirements on constructions sites – applicant received three written warnings from the respondent that safety requirements were not being met – the complaints included concerns arising from the amount of rubbish on site, inadequate drug and alcohol testing and insufficient fencing – the applicant maintained that his role was advisory and did not involve implementing safety initiatives and solutions – Commission was satisfied that respondent had a valid reason for termination – no evidence that applicant was refused a support person – applicant was given an opportunity to respond – Commission found that dismissal was not harsh, unjust or unreasonable – application dismissed. Nieberg v The Heran Building Group P/L t/a Heran Building Group
December 7, 2017
Only twenty applications are listed today. The full list for the Fair Work Commission is: Bushland Health Group Ltd (Mitchell), Helloworld (Scanes), Commonwealth Bank of Australia (Bozinoska), Sydney Aquarium Company Pty Ltd (Davis), Resilience Solutions Pty Ltd (Major), Travelex Ltd (Shahzad), Bechtel Construction (Australia) Pty Ltd (Kezich), Fresh Cheese Co (Aust) Pty Ltd (Condello), Boeing Aerostructures Australia Pty Limited (Cristobal), Alpha Flight Services (Pecoski), Aurora Energy (Philps), Foot & Thai Massage Pty Ltd (Durado, Isugan), Platinum 2224 Pty Ltd (Horgan), PJ Burns Builder Pty Ltd (Woodhead), The Brown and Hurley Group Pty Ltd (Stevens), Executive Security Group Pty Ltd (Cuff), Sydney Night Patrol & Inquiry Co Pty Ltd (Fang), Accolade Wines Australia Limited (Emery), Darwin Skills Development Scheme (Norton).
December 6, 2017
Twenty-five unfair dismissal/labour dispute assertions will be tested before Fair Work commissioner today. The full list is: Mission Australia Early Learning (Jobber), Shorefront Holdings Pty Ltd (Mohindra), Strata Community Association Ltd (Kumari), Startrack Express (Taylor), Fender Katsalidis (Aust) Pty Ltd (Bark), DJS Qualicoaters Pty Ltd (Zveglic), David Dye Pty Ltd (Dawson), G James Extrustion Co Pty Ltd (Mortimer), RACV Inverloch Resort (Chand), Ableridge Pty Limited & Monaghan and Another (Maharaj), Whirlwind Print Pty Ltd (Peckham), Sportsco Corporate Pty Ltd (Kazacos), The Nuance Group (Australia) Pty Ltd (Liang), Guru Amar Pty Ltd (Duiker), BMW Melbourne Pty Limited (Eagland), Vazza Pty Ltd (Li), Commonwealth Bank of Australia (Walker), Camp Australia Pty Ltd (O’Brien), Neilsens Concrete Pty Ltd (Law), Victory Church (Dailly), Kone Elevators Pty Ltd (Mocanu), G James Extrusion Co Pty Ltd (Mortimer), GHSR Pty Ltd (Rollason), Two Wells Community Children’s Centre (Martin).
December 5, 2017
Only sixteen unfair dismissal/labour dispute applications are listed for hearing today by the Fair Work Commission. The full list is: Serco Australia Pty Ltd (Hamoui, Sleiman, Thompson), Royal Rehabilitation Centre Sydney (Chung), Valcore Fit-Outs Pty Ltd (Zaccaria), Labour Express Australia Pty Ltd (Tanoko), Linfox Armaguard Pty Ltd (Jarmain), Qantas Airways Limited (Meintanis), Toll Transport Pty Ltd (Borg), Metropolitan Taxi Club Inc (Ninon), Madras Link Pty Ltd (Chang), Gravity Demolition (O’Connor), Qantas Airways Limited (Edwards & Waterhouse), Kone Elevators Pty Ltd (Mocanu), Aboriginal Sobriety group Inc (Hill), Wambo Coal Pty Ltd (Brooks).
December 4, 2017
ENTERPRISE AGREEMENTS – better off overall test – ss.185, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commissioner approved KIS North West Onshore Operations Enterprise Agreement 2017-2021 (the Agreement) subject to various undertakings – appellant was not a bargaining representative for the Agreement but objected to approval – contended was a person aggrieved as it represented workers in construction industry – respondent accepted appellant had standing to bring appeal – appellant argued Commission erred in concluding Agreement passed better off overall test (BOOT) – Agreement provided for a higher base rate of pay but appellant argued various allowances and other provisions such as crib time, meal allowance and fares allowances were not reflected in the Agreement – Found Commissioner failed to factor into the financial analysis undertaken the application of the three allowances – material considerations in first limb of House v R not taken into account – Agreement did not pass BOOT and Commissioners conclusion was in error – considered appellants further grounds for appeal that might prevent future approval of the Agreement – appellant argued Commissioner erred in accepting undertakings that resulted in substantial changes – found Commissioner did not err in accepting undertakings – appellant argued employees had not genuinely agreed – found no merit in this ground of appeal – appellant argued requirements of s.180(5) of the Act not met – an incorrect answer in the statutory declaration might give pause to query whether the employer understood the full effect of the Agreement and whether it could then impart relevant information to employees – appellants contention that respondent did not meet requirements not substantiated – permission to appeal granted – appeal upheld – first instance decision quashed – application referred to Commission Harper-Greenwell for re-determination. Appeal by Construction, Forestry, Mining and Energy Union against decision of Gregory C of 21 July 2017 [[2017] FWCA 3839] Re: KAEFER Integrated Services P/L
December 4, 2017
CASE PROCEDURES – representation – s.596 Fair Work Act 2009 – respondent sought permission to be represented by lawyers or paid agents at unfair dismissal hearing – applicant represented by union and raised objection to application – Found that matter was not beyond the normal level of complexity ordinarily found in routine unfair dismissal matters – Found respondent could effectively represent itself – Held that there would be no imbalance in the case if applicant were represented by union official and respondent by its specialised human resources staff – permission refused – in accordance with Fitzgerald v Woolworths Limited, refusal also applies to exclude lawyer or paid agent from providing assistance or advice to respondent in the role of a ‘McKenzie friend’. Taylor v Startrack Express t/a Startrack
