Fair Work Commission

Matter: [2018] FWCFB 5773

Summary

Hatcher VP, Hamberger SDP, Simpson C

ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission refused CFMMEU's application to be heard in opposition to Agreement – the CPB Contractors NSW Civil Works Enterprise Agreement 2017-2021 approved with undertakings – appellant contended that the Commission erred in approving the Agreement – 13 grounds of appeal including that the Agreement was contrary to ss.53 and 58 of the FW Act because it purported to exclude the operation of the Agreement in areas covered by later greenfields and project agreements; and the Commission erred in accepting an undertaking relating to the abandonment of employment provision – Full Bench found Agreement contained unlawful term and undertaking relating to abandonment did not address NES issue – permission to appeal granted – decision quashed – agreement remitted for rehearing – CFMMEU shall be permitted to make submissions at the rehearing of the application for approval of the Agreement in relation to the matters raised by its grounds of appeal.

Court summary

Federal Court of Australia, Fair Work Division

Originating Application [NSD1960/2018] filed 22 October 2018, seeking relief under s.562 and s.563 of the FW Act, s.39B of the Judiciary Act 1903, and s.21 and s.22 of the Federal Court of Australia Act 1976.

Status

This matter is yet to be listed for hearing.

Matter: [2018] FWCFB 4120

Summary

Catanzariti VP, Gostencnik DP, Bissett C

CASE PROCEDURES – revoke or vary decision – s.603 Fair Work Act 2009 – Full Bench – application to revoke an order made under s.424 terminating industrial action – since late 2014 and until 7 December 2016 The Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the AMWU (collectively ‘the Unions’), had been bargaining with Esso for a proposed enterprise agreement or agreements that would replace the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (Longford & LIP Agreement) and the Esso Offshore Enterprise Agreement 2011 (Offshore Agreement) – the AWU organised, and many of its members engaged in, various forms of industrial action directed against Esso – AWU maintained that all such industrial action was protected industrial action – Esso maintained that aspects of the industrial action were not protected action – disputed industrial action included bans on the performance of equipment testing, air freeing and leak testing – Esso obtained a number of orders from the Commission directed to the AWU stopping unprotected industrial action – obtained an order on 6 March 2015 (IA Order) – in contravention of the IA Order, the AWU continued to organise industrial action – Esso commenced proceedings in the Federal Court of Australia – the Court rejected Esso’s claim – Esso appealed to the Full Court of the Federal Court – The Full Court dismissed the appeal on 25 May 2016 – on 21 June 2016, Esso filed in the High Court of Australia, an application for special leave to appeal particular orders of the judgment of the Full Court – on 30 November 2016, the Unions served on Esso notices of intention to take protected industrial action – on 7 December 2016, Vice President Watson made an order to terminate the protected industrial action [PR588352] – the applications giving rise to the Order were made by the Minister for Industrial Relations for the State of Victoria (The Minister) – Esso’s special leave application to the High Court had not, at this stage, been heard – during the course of hearing the Minister’s applications, Esso accepted that the Full Court’s judgment in Esso Australia P/L v Australian Workers’ Union was binding on the Commission at that time – this Full Bench was convened to deal with making an ensuing workplace determination as contemplated by s.266 of the FW Act – on 6 December 2017, the High Court delivered judgment in Esso Australia P/L v The Australian Workers’ Union in which a majority of the Court allowed an appeal by Esso, holding that the industrial action organised by the AWU in relation to a replacement enterprise agreement or agreements for, relevantly the Longford & LIP Agreement and the Offshore Agreement was not protected industrial action subsequent to the AWU’s contravention on 6 March 2015 of the IA Order – Esso has applied under s.603 for an order revoking the Order made by Vice President Watson on 7 December 2016 – The Minister and the Unions oppose revocation – Full Bench held that taking unprotected industrial action should not result in the making of a workplace determination – the discretionary matters which point in favour of the exercise of our discretion to revoke the Order outweigh those going the other way – Order revoked with effect on and from the date on which it was made (7 December 2016) – parties encouraged to engage in immediate discussions with a view to concluding an enterprise agreement to replace the Offshore Agreement – Full Bench prepared to advise the parties in conference as to its views on the likely form of a workplace determination that would have been made – prepared to set out the likely form of a workplace determination that we would have made in a recommendation if the parties provided an indication that they would each accept the recommendation and allow employees the opportunity to vote to approve an enterprise agreement consistent with that recommendation.

Court summary

Federal Court of Australia, Fair Work Division

Status

Originating Application VID981/2018 filed 10 August 2018 seeking relief under s.562 and s.563(b) of the FW Act and s.23 of the Federal Court of Australia Act 1976.

This matter was heard before the Full Court on 13 November 2018 and judgment has been reserved.

Matter: [2018] FWCFB 3710 

Summary

Hatcher VP, Hamberger SDP and Bissett C

CASE PROCEDURES – appeals – s.604 Fair Work Act 2009 – s.73 Fair Work (Registered Organisations) Act 2009 – appeal – Full Bench – appeal against Commission's decision to amalgamate three registered organisations – whether the statutory prerequisite for the fixing of an amalgamation day in s.73(2)(c) of RO Act satisfied – appellants contended that the Commission erred in its construction of the expression 'civil proceedings' in s.73(2)(c) and consequently erred by fixing an amalgamation day – Full Bench satisfied that the conclusion reached at first instance was correct – the expression 'civil proceedings' in s.73(2)(c) bears its ordinary meaning and includes civil penalty provisions – permission to appeal granted – appeal dismissed.

Court summary

Federal Court of Australia, Queensland Registry

Status

Originating Application QUD500/2018 filed 20 July 2018 seeking relief under s.562 of the FW Act, s.338 of the RO Act and s.23 of the Federal Court of Australia Act 1976.

This matter is listed for hearing on 21 November 2018 before the Full Court.

Matter: [2018] FWCFB 2485

Summary

Hatcher VP, Dean DP and Hunt C

ENTERPRISE AGREEMENTS – notice of representational rights – ss.174, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance, Commission dismissed both applications for approval of enterprise agreement – appellant had substituted ‘leader’ for ‘employer’ in the Notice of Employee Representational Rights (NERR) – found that NERR differed from prescribed form – did not comply with s.174 of FW Act – appellant submitted that approval of agreements would not render it inconsistent with Peabody – that the use of the word ‘leader’ enhanced the statutory objective of the NERR – that any departure from the prescribed form was trivial – appeal raised issues of general importance in relation to applications for approval of enterprise agreements – permission to appeal granted – Full Bench noted that a minor wording change which does not modify the meaning or effect of the NERR could be capable of being excused by application of de minimis principle – found that use of ‘leader’ in the NERR altered its effect by restricting the avenues by which any question to the appellant might be communicated or directed – modification could not be excused as trivial – Full Bench upheld decision at first instance – appeal dismissed.

Court summary

Federal Court of Australia.

Application [NSD1097/2018] filed 22 June 2018, seeking relief under s. 39B Judiciary Act 1903, ss. 562 and 563 of the Fair Work Act 2009.

Status

This matter has been listed for hearing before a Full Court on 15 November 2018.

Matter: [2018] FWCFB 1037  

Summary

Gooley DP, Beaumont DP and Johns C

GENERAL PROTECTIONS DISPUTE – appeal – Full Bench –  s.365, s.366(2) Fair Work Act 2009 – application filed  8 days outside of the 21 day time limit – first instance decision dealt with whether to grant extension to file application – appeal matter related to whether respondent should have been granted permission to be represented – appellant raised three grounds of appeal, the third being that the views of applicant not sought – Full Bench determined that appellant made out appellable error and in public interest to grant permission to appeal and uphold that ground of appeal – matter referred to single Member to determine permission for respondent to be legally represented and whether extension of time allowed.

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD900/2018] filed 28 May 2018. 

Status

This matter is listed for a case management hearing before Justice Lee 23 November 2018.

Matter: [2016] FWCA 7585 

Summary

Watson VP

ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – Commission approved enterprise agreement International Container Terminal Operations Agreement 2016 (the Agreement) as satisfied all requirements under ss.186, 187 and 188 were met - the Australian Maritime Officers’ Union and The Maritime Union of Australia gave notice under s.183 of the Act that they wanted Agreement to cover them - Commission notes Agreement covers the organisations in accordance with s.201(2).  

Court summary

Fair Work Division of the Federal Court of Australia

Application [VID511/2018] filed 24 April 2018 seeking relief under s.39B Judiciary Act 1903.

Status

This matter was listed for hearing before Justice Rangiah on 16 July 2018. The Court adjourned the first respondent’s interlocutory application for non-standard discovery to a later date yet to be fixed. The Court also ordered the respondents to file and serve their defences by 6 August 2018, and the applicant to serve and file any replies by 20 August 2018.

Orders were made in regards to the interlocutory application for non-standard discovery on 18 September 2018. Further Administrative Orders were made on 21 September 2018. The matter has been listed for a case management hearing before Justice Rangiah on 20 November 2018.

Matter: [2018] FWCFB 94

Summary

Gooley DP, Anderson DP and Booth C

Fair Work Division of the Federal Court of Australia

Application [NSD173/2018] filed 8 February 2018 seeking relief under s. 39B Judiciary Act 1903, ss. 21, 22 and 23 of the Federal Court of Australia Act 1976 and ss. 562 and 563 of the Fair Work Act 2009.

Status

This matter was listed for a Full Court hearing on 22 August 2018 before Justice Rares, Justice Perry and Justice Charlesworth.

On 22 August 2018 the Court ordered that the parties are to prepare written submissions in the matter. The matter is adjourned pending receipt of final submissions.

Matter: [2017] FWC 5751

Summary

Gregory C 

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – decision dealing with 34 separate applications – all applicants employed by Linfox at Regional Distribution Centre – dispute in relation to Clause 5 – 'Custom and Practice' of Linfox and Transport Workers' Union Road Transport and Distribution Centres Agreement 2014 (2014 Agreement) and proposal by Linfox to have all employees in Distribution Centre to perform task of order picking, as required – applicants currently perform certain specific roles only – applicants maintain that custom and practice established over extended period whereby they are only required to perform those certain specific roles – Clause 5 of 2014 Agreement provided that it is not intended to alter an existing custom and practice – Full Bench in Transport Workers' Union v Linfox Australia P/L considered – decision made clear that any such application of implying a custom and practice into applicants' employment contracts must be determined having regard to propositions identified by High Court in Con-Stan – Commission not satisfied that in all the circumstances the existence of a custom and practice as claimed by applicants can be found to exist – evidence did not establish a custom and practice in Distribution Centre whereby all, or even majority of employees, only performed a single task or role as it appeared to be a situation that only applied to the 34 applicants – as custom and practice did not exist in terms of Clause 5 of 2014 Agreement, Commission no longer to give further consideration – applications dismissed.

Court summary

Fair Work Division of the Federal Court of Australia

Application [VID1417/2017] filed 22 December 2017 seeking relief under s. 39B Judiciary Act 1903.

Status

On 2 February 2018 the applicants in this matter filed an interlocutory application seeking to restrain the Commission from proceeding with appeal matter C2017/6488. On 7 February 2018 Justice Bromberg ordered that the interlocutory application be dismissed and that a case management hearing be adjourned to a date to be fixed pending the hearing and determination of the appeal matter at the Commission.

Matter: C2016/4081

Summary

GENERAL PROTECTIONS – application made pursuant to section 365 of the Fair Work Act 2009.

Court summary

Federal Court of Australia

Application [NSD1610/2016] filed 21 September 2016 seeking relief under s.39B Judiciary Act 1903.

Status

This matter is listed for case management hearing on 9 December 2018 and is currently set down for hearing before Justice Wigney on 1-5 April 2019. 

Matter: [2015] FWCA 7516

Summary

Roe C

ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – application to approve the RECS (QLD) PTY LTD Enterprise Agreement 2015 – Commission satisfied that undertakings provided will ensure Agreement meets BOOT – Agreement approved.

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD2073/2017] filed 29 November 2017 seeking relief under s. 39B Judiciary Act 1903.

Status

On 23 November, Justice Flick finalised the order to quash the approval of the Agreement and declared the Agreement void and of no effect.

On 29 November 2017, the appellant in the proceedings, NSD2073/2017, filed an interlocutory application, seeking that the orders of Justice Flick of 23 November 2017 do not come into operation until all avenues of appeal are exhausted and are unsuccessful.

This matter was listed for hearing before a Full Court of the Federal Court on 16 March 2018. 

On 26 June 2018, the Court ordered that a further hearing of the proceeding be adjourned to 7 August 2018 and that the parties to file and serve any affidavit material upon which they intend to rely at the further hearing by 3 August 2018. 

Judgment is this matter was handed down on 28 August 2018. The Court ordered that:

Matter: [2017] FWCFB 3202 

Summary

Hatcher VP, Hamberger SDP & Simpson C

ENTERPRISE AGREEMENTS – genuinely agree – ss.185, 188, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Deputy President dismissed the application for the approval of the JBU Enterprise Agreement 2016 – the Agreement had earlier been approved in a decision of the Commission issued on 18 November 2016 [[2016] FWCA 8209]; see also [[2016] FWC 7936] – that decision was the subject of an appeal by United Voice – in a decision issued on 14 February 2017, a Full Bench of the Commission quashed the decision to approve the Agreement, and referred the application to the Deputy President for re-determination [[2017] FWCFB 871] – grounds for appeal included the Deputy President erred by finding the work undertaken by employees who made the Proposed Agreement was not work the Proposed Agreement would, if approved, cover; and the finding regarding coverage did not support a finding that the Proposed Agreement was genuinely agreed to – the Deputy President proceeded on the basis that s.188 of the FW Act was premised on the proposition there had to be genuine agreement on the part of employees who were covered by the agreement at the time it was made – Full Bench did not consider the decision at first instance was attended by sufficient doubt such as to require the grant of permission to appeal in the public interest or to justify the grant of permission on a discretionary basis – permission to appeal refused.

Court summary

Federal Court of Australia.

Application [WAD474/2017] filed 28 September 2017, seeking special leave to appeal the decision and orders of the Full Bench of the Fair Work Commission. 

On 6 December, leave was granted for the Transport Workers' Union of Australia to intervene in the proceedings.

Status

This matter was heard before Justices Bromberg, Mortimer and Lee on 6 March 2018. Judgement in the matter was handed down on 27 August 2018. The application was dismissed.

Matter: [2016] FWCFB 7203

Summary

Hatcher VP, Clancy DP and Cirkovic C

TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant dismissed for seven allegations of serious misconduct – at first instance Commission found that all but one allegation had been confirmed and represented a valid reason for the appellant's dismissal – Commission found that the appellant's dismissal was unreasonable and unjust, and determined that the respondent should pay him $4,514 compensation – grounds for appeal included that the Commission made significant errors of fact, a significant error of law and that the effect of the decision was contrary to the public interest – appellant was challenging the Commission's decision not to reinstate him and submitted that the reasons for his dismissal were trifling, insignificant and absurd, did not constitute serious and wilful misconduct and should not stand as a template for future decisions – Coal & Allied considered – test under s.400 is stringent one – Full Bench not satisfied that the Commission's findings of misconduct constituted a significant error of fact – Full Bench satisfied that it was open to the Commission to find that the actions by the appellant in relation to a dispute were contrary to site practices and directions of his supervisor and thereby represented a valid reason for his dismissal – Full Bench did not consider it necessary for the Commission to have regard to ss.772(1)(d) and (e) of FW Act – Full Bench found that the effect of the Commission's decision did not prevent a form of freedom of association – not in the public interest to grant permission to appeal – permission to appeal refused.

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD296/2018] filed 2 March 2018 seeking to appeal the single Judge decision in Federal Court matter NSD1978/2016.

The appellant has also filed a notice of a constitutional matter under section 78B of the Judiciary Act 1903 with the Federal Court in relation to this matter.

Status

This matter was listed for hearing before a Full Court on 21 August 2018 before Justice Rares, Justice Perry and Justice Charlesworth.

On 21 August 2018 the Court handed down an Order dismissing the appeal.

Matter: [2018] FWCFB 59

Summary

Hatcher VP, Binet DP and Cambridge C

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.

Court summary

Fair Work Division of the Federal Court of Australia

Application [VID57/2018] filed 25 January 2018 seeking relief under s.39B Judiciary Act 1903.

Status

This matter was heard in the Full Court on 15 May 2018 before Justice Jagot, Justice Bromberg and Justice Rangiah. The Court has ordered that the application be dismissed.

Matter: [2016] FWCFB 7203

Summary

Hatcher VP, Clancy DP and Cirkovic C

TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant dismissed for seven allegations of serious misconduct – at first instance Commission found that all but one allegation had been confirmed and represented a valid reason for the appellant's dismissal – Commission found that the appellant's dismissal was unreasonable and unjust, and determined that the respondent should pay him $4,514 compensation – grounds for appeal included that the Commission made significant errors of fact, a significant error of law and that the effect of the decision was contrary to the public interest – appellant was challenging the Commission's decision not to reinstate him and submitted that the reasons for his dismissal were trifling, insignificant and absurd, did not constitute serious and wilful misconduct and should not stand as a template for future decisions – Coal & Allied considered – test under s.400 is stringent one – Full Bench not satisfied that the Commission's findings of misconduct constituted a significant error of fact – Full Bench satisfied that it was open to the Commission to find that the actions by the appellant in relation to a dispute were contrary to site practices and directions of his supervisor and thereby represented a valid reason for his dismissal – Full Bench did not consider it necessary for the Commission to have regard to ss.772(1)(d) and (e) of FW Act – Full Bench found that the effect of the Commission's decision did not prevent a form of freedom of association – not in the public interest to grant permission to appeal – permission to appeal refused.

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD1978/2016] filed 17 November 2016 seeking relief under s.39B Judiciary Act 1903.

Status

This matter is listed for interlocutory hearing on 4 May 2017. On 15 May 2017, Justice Katzmann dismissed the first respondent's interlocutory application for summary judgment filed on 31 March 2017 and the applicant was ordered to file and serve an amended originating application. 

This matter was listed for hearing on 13 September 2017 before a single Judge of the Federal Court. 

A single Judge of the Federal Court has handed down judgment in the above matter on 14 February 2018.

The Court has ordered that the application be dismissed. Judgment in the matter of costs was handed down on 23 March 2018. The applicant was ordered to pay the costs of the second respondent subject to the outcome of the pending notice of appeal filed 2 March 2018.

A Notice of Appeal was lodged against this matter on 2 March 2018.

Matter: [2016] FWCFB 8129

Summary

Catanzariti VP, Drake SDP and Saunders C

TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for permission to appeal lodged three days out of time – representative error – Commission exercised discretion to extend time for application to be lodged – at first instance Commission found appellant's dismissal was not harsh, unjust or unreasonable – whether in public interest to grant permission to appeal – whether decision at first instance involved significant error of fact – Coal & Allied and GlaxoSmithKline applied – rarely appropriate to grant permission to appeal unless arguable case of appealable error is demonstrated [Wan] – appellant contended Commission at first instance erred by not recusing himself on basis of apprehended bias – contended Commission at first instance made number of significant errors of fact – Ebner applied – expression of tentative views in relation to matters on which parties can make full submissions does not manifest impartiality or bias – nothing to indicate Commission's comments represented concluded views [Morling] – Full Bench not satisfied of any arguable case of error of fact – not satisfied in public interest to grant permission to appeal – permission to appeal refused.

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD2190/2016] filed 19 December 2016 seeking relief under s.39B Judiciary Act 1903.

Status

Judgment for this matter was handed down by a single Judge on 21 December 2017. The held that the application be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

On 29 June 2018, the Court ordered that the Applicant pay the first respondent’s costs of and incidental to the proceedings, on an indemnity basis fixed in the sum of $71,000.00.