TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – dismissal based upon alleged misconduct arising from organisation of unlawful industrial action with consequential reputational damage to respondent – respondent further alleged applicant had not been truthful during the subsequent investigations, providing another reason for dismissal – applicant denied protest was not unlawful and caused reputational damage – alternatively, applicant submitted dismissal was harsh due to the applicant’s 27 years of service and previously unblemished record – Easy considered – Commission held that protest did not constitute unprotected industrial action as there was no limitation or restriction placed on the performance of work – Commission further found the protest action was tacitly authorised by the respondent – applicant’s alleged dishonesty during investigations could not be confirmed – dismissal found to be disproportionate response to applicant’s conduct – no valid reason for dismissal – reinstatement ordered – parties to agree on amount to restore lost pay. McLachlan v Illawarra Coal Holdings P/L t/a South32
November 21, 2017
25 unfair dismissal/labour dispute applications are listed for hearing by the Fair Work Commission today: North Coast Hotel Group (Fallon), Transgrid (Adsett), Cerebos (Australia) Limited (Ratcliffe), Front-Line Resources Management Pty Ltd (Lambropoulos), Svitzer Australia Pty Ltd (Asquith), Smartbuilt Perth Pty Ltd & D’Amico and Another (Gordon), MMG Australia Ltd (Harding), The Salvation Army (Tasmania) Property Trust as Trustee for The Salvation Army (TAS) Social Work (Webb), Mega Admin Services Pty Ltd (Glancy), ALDI Foods Pty Ltd (Joyner), Boom Logistics Limited (Kerr), Randstad Pty Ltd (Roberts), Woolworths Pty Ltd (AlChaher), Workforce Road Service Pty Limited (Metcalfe), Jeanswest Corporation Pty Ltd (Laidlaw), Airservices Australia (Balmer), Casabene Group (Claffey), Australian Government: Australian Financial Security Authority (Cummings), Seltec Pty Ltd (Pilic), Pacific HVAC Engineering Pty Ltd (Xu), H.W Greenham & Sons Pty Ltd (Boots), Flemings Nurseries Pty Ltd (Purnell).
November 20, 2017
The Fair Work Commission will hear twenty unfair dismissal/labour dispute applications today. The full list is: Canon Doors and Shower Screens Centre Pty Ltd (Major), Anglican Schools Commission (Khan), Newcastle Leagues Club (Devrell), The Trustee for Polite Enterprises International Unit Trust (Boticki), Broadspectrum (Australia) Pty Ltd (Petch), Sydney Trains (Perera), Mawland Quarantine Station Pty Ltd (Walters), Thompson Healthcare Pty Ltd (Adamopoulos), Glorious Health Australia Pty Ltd (Aneke), CDC Oakleigh Pty Ltd (Petraitis), Ulukile Pty Ltd ITF Wenckowski/Nanni Family Trust & Wenckowski (Drapac), CFC Employment Trust (Carberry), Dovaston Consulting Group Pty Ltd (Santosa), Hays Recruiting Experts in Resources and Mining (Gasser), ACCCO Pty Ltd (Duffy), Mamre Association Inc (Burke), Q Traff Pty Ltd (Apollini), 208 South Terrace Management (Boswell), G R Whittaker Nominees (Kerr), Walga Mining and Services Pty Ltd (Micheluzzi).
November 16, 2017
Thirty-seven unfair dismissal/labour dispute applications are due to be heard in the Fair Work Commission today. The full list is: TW Constructions Pty Ltd (Ellem), SBA Salmon Buckets & Attachments Pty Ltd (Jacobs), Westpac Banking Corporation (Grant), The Woodworkers Company (Ireland), Clough Projects Pty Ltd (Wardle), Belgravia Health & Leisure Group Pty Ltd (Dowling), Department of Health and Human Services (Ottrey), The Camberwell Grammar School (Dai), Kmart Australia Ltd (Cortes), Northern Territory Government (McAuley), 208 South Terrace Management (Boswell), G R Whittaker Nominees (Kerr), DBH Trust (Hibell), Walga Mining and Services Pty Ltd (Micheluzzi), Decon Technologies (SA) Pty Limited (Haines), Newcastle Leagues Club (Devrell), Anglican Schools Commission (Khan), Sydney Trains (Perera), Thompson Healthcare Pty Ltd (Adamopoulos), Mawland Quarantine Station Pty Ltd (Walters), The Trustee for Polite Enterprises International Unit Trust (Boticki), Broadspectrum (Australia) Pty Ltd (Petch), Glorious Health Australia Pty Ltd (Aneke), Canon Doors and Shower Screens Centre Pty Ltd (Major), Ulukile Pty Ltd ITF Wenckowski/Nanni Family Trust & Wenckowski (Drapac), CDC Oakleigh Pty Ltd (Petraitis), CFC Employment Trust (Carberry), Dovaston Consulting Group Pty Ltd (Santosa), Hays Recruiting Experts in Resources and Mining (Gasser), Q Traff. Pty Ltd (Apolloni), Mamre Association Inc (Burke), ACCCO Pty Ltd (Duffy), Liquorland (Qld) Pty Ltd (Schmidt), Bondall Pty Ltd (Hoger), Kormilda College Ltd (Illemann), SRSW Pty Ltd (Keighley), John Holland Pty Ltd (JHPL) (Norman).
November 16, 2017
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent terminated applicant due to incapacity to perform his duties resulting from illness – a valid reason for dismissal has to be ‘sound, defensible or well-founded’ [Selvachandran] – Commission found it entirely defensible for respondent to rely on medical evidence from occupational physician – satisfied that respondent had valid reason for dismissal – applicant was notified in advance of dismissal and was given opportunity to respond – no unreasonable refusal for support person – regarding other matters, Commission found entitlement to salary continuance under the enterprise agreement has relevance – dismissal denied applicant benefits of salary continuance which were designed to cover long periods of absence by employees – Commission also considered differing opinion from applicant’s treating psychiatrist who had set an earlier return to work date than the physician – on balance, Commission determined that dismissal was harsh – remedy considered – Commission found reinstatement appropriate – puts applicant in same position before dismissal and allows access to salary continuance – no issue as to the applicant’s conduct – decision has no bearing on future conduct that respondent may take to dismiss applicant – respondent may revisit dismissal if applicant does not make the requisite recovery from his illness – reinstatement ordered and for continuation of service – Commission also ordered restoration of lost pay in accordance with the salary continuance clause. Papaioannou v CSL Limited
November 16, 2017
ENTERPRISE AGREEMENTS – genuinely agree – ss.174, 180, 185 Fair Work Act 2009 – application by CQ Field Mining Services (CQFMS) for approval of CQFMS Enterprise Agreement 2017 (Agreement) – CFMEU was a bargaining representative and opposed approval of agreement on following grounds: noncompliance with s.174(1A) FW Act for issuing valid Notice of Employee Representational Rights (NERR); all reasonable steps required by s.180(2) and s.180(5) of FW Act not taken; and better off overall test (BOOT) not passed with respect to some employees or prospective employees who were or would be covered by Black Coal Award – Agreement also contained objectionable term on ground that it was discriminatory – CFMEU objected to the NERR issued by CQFMS as it was set out on the company’s letterhead and not to be in form required by the Regulations – Commission did not accept that NERR given on the company’s letterhead was invalid as this was not a matter that went to the form or content of the notice – CFMEU contended that number of incorporated documents including various company policies and procedures referred to in proposed Agreement were not provided to employees, nor were they given access to this written material – CQFMS submitted that the relevant materials were made available to all employees at induction and were communicated to employees on an ongoing basis during employment – Commission determined that CQFMS did not provide copies of relevant materials referred to in proposed Agreement and did not inform where employees could obtain copies during access period – Commission did not accept that employees may have been informed about relevant materials in site inductions to meet requirements of s.180(2) FW Act and not satisfied that CQFMS complied – CFMEU asserted Agreement did not pass BOOT as employees were performing work in black coal mining industry and were governed by Black Coal Award – CFMEU pointed to a range of provisions where Black Coal Award provided more beneficial terms than the Agreement – Commission satisfied that CQFMS employed employees who were covered by Black Coal Award and on that basis, Agreement did not pass the BOOT – not satisfied that CQFMS took reasonable steps to provide explanation of Agreement given deficiencies identified in respect of the BOOT – Commission held Agreement not genuinely approved – Agreement did not pass the BOOT – application for approval refused. CQ Industries P/L t/a CQ Field Mining Services
November 16, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – conferences were held on 30 March 2015 to identify the issues to be raised by interested parties during the review of each of the Group 3 awards – Mentions were held on 6 and 7 June 2016 to deal with the technical and drafting issues – after the mentions, further conferences were conducted by individual members in respect of particular Group 3 awards – this decision should be read in conjunction with the decision issued on 6 July 2017 [[2017] FWCFB 3433] (the July 2017 decision) which dealt with 19 of the awards in Group 3 – this decision deals with the remaining awards in Group 3: Dredging Industry Award 2010; Educational Services (Post-Secondary Education) Award 2010; Educational Services (Schools) General Staff Award 2010; Horticulture Award 2010; Sugar Industry Award 2010; Clerks Private Sector Award 2010; Fitness Industry Award 2010; Gardening and Landscaping Services Award 2010; Legal Services Award 2010; Nursery Award 2010; Pastoral Award 2010; Silviculture Award 2010; Sporting Organisations Award 2010; and Wine Industry Award 2010 – submissions are to be emailed to [email protected] by the date specified in the section of the decision dealing with each award. 4 yearly review of modern awards – Award stage – Group 3
November 16, 2017
CASE PROCEDURES – apprehension of bias – ss.394, 589 Fair Work Act 2009 – application for recusal on ground of apprehended bias – applicant’s representative made a complaint regarding the handling of applications covering a variety of subjects and involving a number of members – advised that issue of apprehended bias be raised at the commencement of proceedings – telephone mention/directions scheduled – previous decision permitted respondent’s legal representation – Commission requested written authority that applicant representative was authorised to act on applicant’s behalf – applicant representative submitted Commission did not hold respondent to same test and was evidence of apprehension of bias – respondent representative suggested matter be dealt with on the papers – applicant representative contested not advised in advance of this submission and it was further evidence of an apprehension of bias – requested for an adjournment and matter be dealt with by another member – Commission referred to fair-minded lay observer principles and application in Johnson v Johnson; Ebner and Isbester – did not consider a reasonable apprehension of bias could possibly arise in the mind of fair-minded lay observer – stated to pass these applications on to another member of the Commission would be a failure to discharge duty to hear and determine matters in a fair and just manner – application to recuse dismissed. Deeney and Ors v Patrick Projects P/L
