REGISTERED ORGANISATIONS – cancellation of registration – s.30(1)(a) Fair Work (Registered Organisations) Act 2009 – application by Association to cancel its own registration – application signed by executive director and president – notice of application was gazetted – no objections received within time prescribed – no challenges to application – application complied with regulations 33 and 34 – cancellation to take effect from 13 November 2017. The Timber Merchants’ Association (Victoria)
November 22, 2017
CASE PROCEDURES – failure to prosecute application – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal – applicant failed to attend initial conciliation – application listed for phone conference which applicant again failed to attend – application relisted, applicant advised in writing that failure to attend may result in dismissal of application – when contacted for phone conference applicant advised he could not stay on the phone – applicant reminded of content of email to which he responded ‘fair enough’ – Peter Viavattene v Health Care Australia considered – Commission dismissed application for want of prosecution under s.587 of FW Act. Hooper v ITKM Transport
November 22, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application for Right of Entry (RoE) permit – ABCC objected to application – whether union official ‘fit and proper person’ – consideration of meaning of ‘fit and proper person’ by reference of suitability to hold an entry permit [MUA v FWC] – Commission to take into account permit qualifications matters in s.513 – official previously ordered to pay a penalty under FW Act on three occasions – CFMEU submitted that these were isolated incidents that do not indicate pattern of improper behaviour and not suggestive of future misconduct – official had RoE permit made subject to conditions on two occasions – ABCC submitted evidence of CFMEU engaging in contraventions – Commission considered that past contraventions by organisation can be relevant to consideration of permit holder’s fitness even where contraventions did not involve permit holder – ABCC submitted evidence of official being susceptible to complying with directions from employer – Commission satisfied evidence suggested some susceptibility to comply with directions of employer with history of repeated breaches – Commission found contraventions so close in time to proceedings suggested lack of genuine contrition and propensity to continue to engage in unlawful conduct – highly relevant to whether ‘fit and proper’ person – Commission not satisfied ‘fit and proper’ person’ to hold entry permit – application dismissed. Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
November 22, 2017
TERMINATION OF EMPLOYMENT – amendment of application – ss.394, 586 Fair Work Act 2009 – application to amend unfair dismissal application to a general protections application – unfair dismissal application lodged on 19 September 2017 – applicant requested Commission to exercise discretion under s.586 FW Act to amend application to general protections application involving dismissal on 27 September 2017 – submitted he could only receive legal advice about submitting the wrong application after the prescribed time limit expired – respondent submitted Commission did not have the power to accede to applicant’s application and that legal advice had been obtained – Ioannou and Hambridge considered – satisfied applicant intended to make an application in relation to his allegation employment was terminated because he inquired about his pay – satisfied unfair dismissal application was a general protections application made using the wrong form – Commission granted application and amended irregularity in the form filed – application given general protections matter number. Hui v Evanita P/L t/a Paylink Business Services
November 22, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant claimed respondent forced her to resign – respondent raised jurisdiction objection, claiming there was no dismissal as applicant voluntarily resigned – Mohazab and Elgammal considered – respondent’s conduct, viewed objectively, did not show an intention to no longer be bound by the contract – respondent held applicant in regard as an employee and never intended for applicant to resign – applicant not dismissed – applicant voluntarily resigned – application dismissed. Hill v Pathways Australia P/L t/a Pathways Australia
November 22, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant a regular and systematic casual employee – minimum employment period satisfied – applicant submitted he felt forced to resign as a result of the unacceptable working conditions he was subjected to – applicant claimed respondent’s practices included underpayments, pay back schemes, and threats that the applicant would be deported if he complained – Fair Work Ombudsman (FWO) was conducting an investigation into applicant’s allegations – Commission considered whether dismissal at initiative of employer – Commission found that evidence was complicated by family members opposing one another – found insufficient evidence to be satisfied about substance of allegations under investigation by FWO – found applicant tendered a letter of resignation which did not amount to dismissal at initiative of employer – application dismissed. Banda v Mrs Australia P/L t/a 7-Eleven
November 22, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – reasons given for dismissal included unsatisfactory work performance and misconduct – applicant submitted respondent’s actual reason for dismissal was to avoid having to pay applicant his long service leave – jurisdictional objection raised by respondent on the basis that the dismissal complied with the Small Business Fair Dismissal Code – reasonable belief that applicant had engaged in serious misconduct due to the ‘unsafe and illegal way’ in which he had secured three vehicles on a car carrier – respondent had discussions with applicant about his failure to comply with the business safety policy and procedures – evidence of respondent witness preferred – employer complied with Code – application dismissed. Collins v Elfbill P/L t/a Alfies Towing
November 22, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute in accordance with dispute resolution procedure in Wood Group PSN Australia P/L Electrical and Instrument Greenfields Agreement Lytton Refinery 2016-2019 (Agreement) – respondent proposed to introduce a new afternoon shift from 2:30pm- 10:47pm – whether respondent could implement afternoon shift on an ongoing basis with continual review for effectiveness – whether proposal aligned with definition of ‘shift work’ in Agreement – construction of relevant clauses in Agreement – meaning of ‘expected’, ‘duration’ and ‘job’ – Commission found ‘expected duration of the shift work’ not an ambiguous phrase and means for a period of time that does end – satisfied parties did not specifically consider limiting use of shift work during negotiation of Agreement – held respondent unable to implement proposal as put – shift work must have nominated final completion date to meet requirements of Agreement – dispute determined. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wood Group PSN Australia P/L
