Rail Industry Safety & Standards Board will defend a s.394 (Application for unfair dismissal remedy) before Commissioner Wilson in his Melbourne chambers (Bonnar).
November 28, 2017
Twenty-seven unfair dismissal/labour dispute applications are listed for hearing in the Fair Work Commission today. The full list is: Ride It Right Motorcycling Techniques (Jenkinson), Whitehaven Coal Mining Limited (Warren), TouchPoint HCM Solutions Pty Ltd (Edwards), Stone Mason and Artist (Palmer), Novatav Pty Ltd (O’Beirne), Greystanes Disability Services (Roberts), Wahroonga Pty Ltd (Radovan), Artisan Wine Storage Pty Ltd (Oldfield), PAC Perth Pty Ltd (Stoney), Concrete Waterproofing Manufacturing (Kerry), Nobile Pty Ltd (Young), KDR Victoria Pty Ltd (Tan), TouchPoint HCM Solutions Pty Ltd (Edwards), Rail Industry Safety & Standards Board (Bonnar), Boeing Aerostructures Australia Pty Ltd (Davies), The University of Melbourne (Upadhye), Victoria Legal Aid (Lloyd), Barada Barna Aboriginal Corporation (Dargan, Roos), Walagullaby Welding Works (Henderson), Groote Eylandt Mining Company Pty Ltd (Law), Go To Court Franchising Pty Ltd (Lewis), Westpoint Auto’s (Benson), Rew Bros Pty Ltd (Mabil), BHP Olympic Dam (Nissan), Greyhound Australia Pty Ltd (Nissan), G R Whittaker Nominees (Kerr).
November 27, 2017
MODERN AWARDS – 4 yearly review – variation – ss.156, 160 Fair Work Act 2009 – applications by various employer parties to vary coverage terms in clause 4 of Horticulture Award 2010 (Award) as part of 4 yearly review – applications to vary Award to remove ambiguity and uncertainty also made – employer parties included Mitolo Group P/L, Maranello Trading P/L and Ai Group – applications supported by Gayndah Packers P/L, National Farmers Federation and Voice of Horticulture – applications opposed by NUW and AWU – Full Bench considered approach taken by Australian Industrial Relations Commission (AIRC) when making the Award and other awards relating to agriculture and farming – AIRC at the time held that coverage of pastoral and horticultural should be confined to agricultural production within the ‘farm gate’ – ‘farm gate’ not defined nor explained by AIRC – NWU and AWU contended that ‘farm gate’ was physical in nature and referred to geographical location – further contended that ‘farm gate’ was the geographical boundary of a farm so coverage of Award was deliberately confined to the ‘farm gate’ – NWU and AWU submitted that as a result, employees beyond physical location of ‘farm gate’ would not be covered – employer parties contended that ‘farm gate’ related to concept that contemplated the point at which produce has been rendered fit for sale and ready for market – Full Bench agreed and held that ‘farm gate’ was a virtual concept and not a reference to physical barrier or gate that hung from a fence on a particular farm – held that it was abundantly clear that ‘farm gate’ was the first point of sale from producer to a customer, so was not determined by location of work – Full Bench satisfied that variation to Award, together with NES, would provide fair and relevant minimum safety net of terms and conditions – Full Bench considered it appropriate to exercise discretion to vary Award to resolve ambiguity and uncertainty in coverage clause – draft variation determinations published – interested parties to comment on draft variation determinations within 21 days. 4 yearly review of modern awards – Horticulture Award 2010
November 27, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed from 30 March 2016 to 5 January 2017 as business development manager – summary dismissal for serious misconduct – applicant allegedly forwarded confidential information to personal email in contravention of policies and contract of employment – applicant submitted dismissal in order to avoid payment of significant commission – respondent discovered after dismissal that applicant ran a private business renting VMS units whereas the respondent sold VMS units – Commission noted that applicant did not seek written approval for having established a business as a potential rival supplier and acted in conflict with his obligation as an employee – Laws v London Chronicle and Concut v Worrell cited – Commission held that the confidence essential to employment relationship has been destroyed – held that employee had pursued his own private interests – adopted reasoning in B, C and D v Australian Postal Corporation – found no evidence that information used for an ulterior purpose or personal gain – considered that information discovered later regarding private rival business to be relevant in determining whether dismissal was unfair – found that respondent did not meet onus it bears to prove allegations to the requisite standard out in by the High Court in Briginshaw – found that dismissal was unfair – found that applicant had contractual obligation to seek permission to engage in secondary employment and failed to do so – Commission determined that conflict of interest was serious misconduct and dismissal was an appropriate outcome and validated by facts discovered after dismissal – found dismissal not harsh, unjust or unreasonable – not unfair – application dismissed. Alverson v Artcraft P/L
November 27, 2017
CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – at first instance Commission determined that respondent was unfairly dismissed and ordered reinstatement – appellant sought permission to appeal decision and sought a stay of the whole of the order – grounds of appeal centred on whether the respondent’s behaviour was mischaracterised as inappropriate language without regard to the true nature, effect and gravity of the misconduct – Commission considered whether reinstatement was appropriate and whether decision involved significant errors of fact – in deciding whether to exercise its discretion to grant a stay order, Commission must first be satisfied that appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and substantive merits of appeal – found that there is an arguable case that the Commission erred at first instance by failing to have regard to the seriousness of the allegation against the respondent – Commission satisfied that balance of convenience favours stay order – stay order issued. Appeal by Illawarra Coal Holdings P/L against decision and order of Riordan C of 3 November 2017 [[2017] FWC 4574] Re: Gosek
November 27, 2017
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed by the respondent as an instrument electrical tradesperson who regularly worked at a water treatment plant – allegation that applicant was not at work when he purported to be – investigation uncovered large number of workplace attendance irregularities which led to termination – respondent relied on evidence from GPS data, gate logs, phone records, emails and chlorine analyser logs – employees were required to carry a Personal Digital Assistant (PDA) device which was used show a task was being performed and had a GPS location function – Commission found applicant was not performing work on days for which he was paid – applicant deliberately inhibited functionality of PDA to hide his whereabouts and deceive his employer – whilst the GPS data was open for interpretation, no such allegation had been raised in relation to the accuracy of PDA work data and actual telephone calls that were required to be made and were, or were not, made from applicant’s mobile phone – valid reason for termination – termination not harsh, unjust or unreasonable – application dismissed. Colella v Aroona P&T P/L t/a Aroona Alliance
November 27, 2017
ANTI-BULLYING – constitutionally-covered business – s.789FC Fair Work Act 2009 – application for FWC order to stop bullying – jurisdictional issues relating to whether applicants were working in a ‘constitutionally covered business’ and whether applicants were ‘workers’ within meaning of FW Act and Work Health and Safety Act 2011 (Cth) – Commission considered whether City of Burnside a ‘constitutionally-covered business’ as defined at s.789FD(3) FW Act – Commission satisfied that City of Burnside a ‘person’ within meaning of s.789FD(3) – found that City of Burnside conducted ‘business or undertaking’ within meaning of s.789FD(3) as it had elements of organisation, systems and continuity – however not satisfied that trading activities of City of Burnside were substantial for council to be characterised as trading corporation – found applicants not working in ‘constitutionally-covered business’ – found no jurisdiction to hear applications – application dismissed. Cooper and Bagster
November 27, 2017
CASE PROCEDURES – appeals – failure to prosecute application – s.399, 587, 604 Fair Work Act 2009 – Full Bench – at first instance appellant was ordered to pay respondent costs – appellant failed to discontinue unfair dismissal remedy application after the settlement of claim and failed to comply with directions – appellant’s stay order was granted – Full Bench decided to dismiss appeal for want of prosecution as appellant failed to comply with directions and failed to attend without explanation – appellant’s application for permission to appeal lodged 40 days outside of requisite time period for filing an appeal – no appeal books or submissions were filed by requisite deadlines – no communication was received from the appellant despite numerous attempts made – Full Bench adopted principles in Peter Viavattene v Health Care Australia and Sullivan and General Steel Industries Inc v Commissioner for Railways (NSW) – noted a fair go all around is accorded to both parties – considered it would be unfair for respondent to incur further wasted costs and time – stay order revoked – appeal dismissed. Appeal by Raschilla against decision and order of Binet DP on 24 April 2017 and 14 June 2017 [[2017] FWC 1117andPR592084] Re: Ausino West P/L atf The Supercrane Unit Trust t/a Supercrane Engineered Lifting Technology
