Fair Work Commission

Matter: [2016] FWCFB 373

Summary

Hatcher VP, Hamberger SDP & Saunders C

CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – application for permission to appeal decision of Commission to refuse extension of time to lodge unfair dismissal application – notice of appeal under s.604 of FW Act must be filed within 21 calendar days of decision to be appealed – notice of appeal filed 775 days late – extension of time must be granted for appeal to be competent – considerations include whether there is a satisfactory reason for delay, length of delay, nature of grounds of appeal and any prejudice to respondent [Jobs Australia v Eland] – applicant submitted he was in Pakistan at time of decision and did not return to Australia until January 2015, at which time he saw decision for the first time – Full Bench not satisfied this was a reasonable explanation for the delay, and did not explain why notice of appeal not filed until December 2015 – delay can only be characterised as lengthy – unlikely that any grounds of appeal being pursued by applicant would be upheld – respondent likely to suffer prejudice if time extended, as employment with respondent ended almost three years ago – notice of appeal incompetent and dismissed.

Court summary

High Court of Australia.

Application [P59/2017] filed 9 October 2017, seeking special leave to appeal the decision and orders of the single Judge decision of the Federal Court in matter [WAD240/2016].

Status

Judgment for this matter was handed down on 14 December 2017. The High Court held that the applicant's application for an extension of time within which to file an application for special leave to appeal be dismissed. The Court further held that special leave should be refused.

Matter: [2017] FWCFB 132

Summary

Hatcher VP, Bull DP and Simpson C

ENTERPRISE AGREEMENTS – better off overall test – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appellant made application for the approval of the All Trades Queensland P/L Apprentice/Trainee Enterprise Agreement 2015 (2015 Agreement) – 2015 Agreement was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU), the Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and Australian Manufacturing Workers' Union (AMWU) (collectively, the Unions) – dispute in the proceedings as to what were the applicable comparator instruments for the purpose of the application of the 'better off overall test' (BOOT) – appellant's position was that the applicable comparator instruments were a number of Queensland State awards and orders preserved as 'notional agreements preserving State awards' (NAPSAs) – Unions' position was that the relevant instruments were the modern awards, and that the 2015 Agreement was incapable of passing the BOOT by reference to these instruments – at first instance the Commission determined the relevant modern awards were the comparator instruments – appellant contended that decision was in error and should be quashed – appellant supported by the Housing Industry Association (HIA), the Queensland Master Builders Association Industrial Organisation of Employers (QMBA), and the Group Training Association of Queensland and Northern Territory Limited trading as the Apprentice Employment Network (Apprentice Employment Network) – Full Bench considered permission to appeal should be granted – appeal raised issues which were novel, complex, and had broader implications for the pay rates and conditions of employment for trainees and apprentices in Queensland – appellant's submissions focused upon whether the relevant NAPSAs continued to apply to, or cover, it and its employees covered by the 2015 Agreement – Full Bench considered the critical question was whether the relevant modern awards relied upon by the Unions covered employees to whom the 2015 Agreement would apply if approved (regardless of whether the NAPSAs covered or applied to such employees) – s.48(1) of FW Act provides that a modern award covers an employee and an employer if it is expressed to cover them – Full Bench considered it was clear that the modern awards relied upon by the Unions were, at the 'test time' for the 2015 Agreement expressed to cover various categories of employees to whom the 2015 Agreement would apply if approved – question was then whether anything in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) altered that position – Full Bench held Item 16 of Schedule 5 of the Transitional Act, while it operates to continue the coverage of award-based transitional instruments (ABTIs) to which it applies, does not displace the coverage of any modern award to an employee – item 16(5), while it provides that a modern award shall not apply to an employee while an ABTI still covers the employee, does not provide that a modern award shall not continue to cover the employee – Full Bench found no inherent conflict in there being coverage of an employee by two different instruments, since coverage is only concerned with the potential and not the actual application of the instrument – held decision at first instance was correct – permission to appeal granted – appeal dismissed – application for approval of 2015 Agreement referred back to Spencer C for final determination in accordance with this decision.

Court summary

Federal Court of Australia

Application [QUD92/2017] filed 23 March 2017 seeking relief under section 39B Judiciary Act 1903, sections 562 and 563 of the Fair Work Act 2009 and sections 21, 22 and 23 of the Federal Court of Australia Act 1976.

Status

On 24 May 2017 the applicants in this matter filed application for leave to amend their originating application, seeking judicial review of the Full Bench decision in [2017] FWCFB 132.

An interlocutory hearing was held on 2 June 2017 and orders were issued by the Federal Court joining the Fair Work Commission as a fourth respondent to the matter.

This matter was heard before a Full Court on 21 August 2017. Judgment for this matter was handed down by a Full Court of the Federal Court on 27 November 2017. The Court held that the application was dismissed.

Matter: [2017] FWCFB 2907

Summary

Catanzarati VP, Clancy DP, and Johns C

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – dispute concerned whether the Glen Cameron Nominees P/L NSW EBA 2015-2019 (Agreement) meal break clause 18.1 or the relevant Road Transport and Distribution Award 2010 (Award) shift work clause 24.9 applied to shift workers – at first instance Commission found clause 24 of the Award in respect of meal breaks applied to employees who perform shift work and are covered by the Agreement – grounds of appeal included error in construction of clause 18.1 of the Agreement and clause 24.9 of the Award, failure to consider relevant evidence of parties' intentions when making the Agreement; failure to have regard to the parties 'common understanding' of the meaning of clause 18.1 of the Agreement and clause 25A of the former agreement – Commission also erred by not drawing adverse inference from respondent's failure to call witnesses present during negotiation of the Agreement and failure to consider negotiation meetings minutes for the Agreement – Full Bench found the Commission adopted an orthodox approach to interpreting the award and Agreement – as there was no issue of ambiguity, there was no requirement for the Commission to consider the common intention of the parties [Golden Cockerel] – also satisfied the Commission considered the context and purpose of the Agreement as a whole – not satisfied of an arguable error in relation to any other part of the decision nor that granting the appear would be in the public interest – permission to appeal refused.

Court summary

Federal Court of Australia

Application [NSD1340/2017] filed 8 August 2017 seeking relief under section 39B of the Judiciary Act, section 23 of the Federal Court Act and sections 562 and 563 of the Fair Work Act.

The application also sought interlocutory relief against the respondents restraining them from taking any further steps in proceeding C2017/1406 at the Commission.

Status

On 31 August 2017 Perram J dismissed the applicant's application for interlocutory relief.

On 14 December, Perram J ordered that the decision made by the Fair Work Comission on 8 June 2017 in proceeding C2017/1406 refusing permission to appeal is invalid, and otherwise dismissed the matter.

Matter: [2016] FWCFB 91

Summary

Watson VP, Kovacic DP and Wilson C

ENTERPRISE AGREEMENTS – approval – ss.172, 185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve ALDI Regency Park Agreement 2015 – scope of agreement covered employees in ALDI's Regency Park Region and any new stores which opened in that region – at the time agreement was voted on no stores in the region had commenced trading – employees who voted on agreement were employed by ALDI at other locations but had accepted a written offer of employment to work in the region when stores commenced operations – appellants advanced various grounds of appeal – first ground: agreement should have been made as a greenfields agreement because ALDI was establishing a new enterprise and had not employed any of the persons who would be necessary for the normal conduct of the enterprise – respondent submitted that conducting its traditional operations in a new geographical area is not a genuine new business, and employees had been employed in the enterprise covered by the agreement – Full Bench had to consider if employees were employed at the time the agreement was made and were covered by the agreement – both elements involved questions of fact – found employees who accepted on-going employment in the region were employed by ALDI at the time the agreement was made – further, as their employment comprehended work within the scope of the agreement they were covered by the agreement – second ground: employees who were selected to approve the agreement were not fairly chosen because a group of 17 employees were selected to make an agreement for a much larger group of employees – appellants also submitted employees were not appropriately representative because seven of the 17 selected employees who voted on the agreement were managers – Full Bench held the test to determine whether the group of employees was fairly chosen requires consideration of the employees covered by the agreement, not the employees who vote for the agreement at the time it is made – third ground: the better off overall test (BOOT) was not properly applied – Full Bench found BOOT had been properly considered in the first instance – permission to appeal granted given the important interpretation issues – no appealable error found – each ground of appeal dismissed – appeal dismissed.

Court summary

High Court of Australia.

Application [M173/2016] filed 16 December 2016, seeking special leave to appeal the decision and orders of the Full Court of the Federal Court in matter [VID349/2016].

Status

On 13 January 2017 Justice Jessup of the Federal Court issued an ex tempore decision granting ALDI a stay of enforcement of the Full Federal Court orders issued in VID349/2016, pending the resolution of the High Court special leave application.

This matter was listed for hearing before the High Court on 9 August 2017 and judgment was handed down by the High Court on 6 December. The High Court held at [104] that “[t]he appeal to this Court should be allowed in part. That part of the orders of the Full Court of the Federal Court of Australia dated 29 November 2016 relating to the decision of Bull DP under s 186 of the Fair Work Act 2009 (Cth) should be set aside. A writ of certiorari should be issued to quash the decision of the Full Bench of the Fair Work Commission, and a writ of mandamus should issue requiring the Full Bench of the Fair Work Commission to determine according to law whether the ALDI Regency Park Agreement 2015 passes the better off overall test set out in s 193 of the Fair Work Act 2009 (Cth). That part of the first respondent's originating application to the Full Court of the Federal Court of Australia for relief under s 39B of the Judiciary Act 1903 (Cth) concerned with the decision of Bull DP under s 186 of the Fair Work Act 2009 (Cth) should be dismissed”.

Matter: [2017] FWCFB 2459

Summary

Gostencnik DP, Clancy DP and Lee C

[2017] FWC 718

ENTERPRISE AGREEMENTS – genuinely agree – ss.604, 186(2)(a) Fair Work Act 2009 – appeal – Full Bench – Commissioner at first instance found employees who voted to approve the enterprise agreement were not covered by it – Full bench found Commissioner erred in concluding s.186(2)(a) had not been satisfied – employees engaged to perform work ‘in connection with’ a tender for work covered by the agreement – decision quashed – application remitted for determination by another Member.

Court summary

Federal Court of Australia

Application [NSD840/2017] filed 29 May 2017 seeking relief under section 39B Judiciary Act 1903, sections 562 and 563 of the Fair Work Act 2009 and sections 21, 22 and 23 of the Federal Court of Australia Act 1976.

Status

On 9 November, the Full Court ordered that:

• A writ in the nature of certiorari issue to remove into this Court so far as is necessary proceedings C2017/1073 in the Fair Work Commission for the purpose of quashing the Decision of the FWC made on 23 May 2017 (in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FWCFB 2459).
• A writ in the nature of mandamus issue to direct that a Full Bench of the FWC hear and determine the application in proceedings C2017/1073 according to law in respect of grounds 2-7 in the Notice of Appeal dated 27 February 2017 but having regard to these reasons.

Matter: [2016] FWCFB 7677

Summary

Drake SDP, Asbury DP and Saunders C

TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant sought permission to appeal against decision at first instance finding appellant breach of code of conduct was a valid reason for dismissal – detailed forensic examination of evidence conducted at first instance – Full Bench held relevant issues determined on evidence and sufficient reasons were provided in determination of matters – not satisfied in public interest to grant permission to appeal – found legal principles applied harmonious with those applied in other decisions – permission to appeal refused

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD2226/2016] filed 23 December 2016 seeking relief under s.39B Judiciary Act 1903.

Status

On 22 September, Justice Bromwich dismissed the amended originating application for judicial review with costs.

Matter: [2017] FWCFB 3334

Summary

Ross J, Catanzarati VP, Asbury DP, Hampton C and Lee C

MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – on 23 February 2017 the Commission issued a decision dealing with the weekend and public holiday penalty rates, and some related matters, in a number of awards in the Hospitality and Retail sectors (the Penalty Rates decision) [[2017] FWCFB 1001] – on 5 June 2017 the Commission issued the Penalty Rates – Transitional Arrangements decision [[2017] FWCFB 3001] which dealt with the implementation of the Penalty Rates decision including the determination of various transitional arrangements – draft variation determinations in respect of the Sunday penalty rate provisions in the Fast Food, Hospitality, Restaurant, Retail and Pharmacy Awards were published for comment on 7 June 2017 – submissions were received from the Australian Retailers Association, National Retail Association and Master Grocers Australia (the Retail Associations), Australian Industry Group (Ai Group), the Shop, Distributive and Allied Employees Association (SDA) and an organisation called WorkSight P/L – the expressions used in the draft determinations were consistent with the approach adopted by the Commission in the course of reviewing modern awards as part of the 4 yearly review (the Review) – the review of each modern award involves the publication of an exposure draft which reformats the award to make it simpler and easier to understand and incorporates consistent expressions – given the different stages of completion of the plain language re-drafting processes we have decided that the current form of the penalty rates provisions will be retained for the purpose of finalising these determinations – however, the drafting of these clauses will be revisited during the course of the Plain Language Project – one further matter in contention, is the application of the Penalty Rates decision to trainees employed under the terms of the Fast Food Award – employers are obliged to classify all employees covered by the award (including trainees) as either a level 1, level 2 or level 3 Fast Food Employee – Full Bench did not propose to vary the draft determination to make express reference to trainees – any interested party wishing to pursue this issue should file an application to vary the Fast Food Award so that the matter may be fully considered – there is a final matter, in relation to the Pharmacy Award – Sunday penalty rates under the Pharmacy Award are to be reduced for ordinary hours worked between 7.00 am and 9.00 pm on a Sunday – the Penalty Rates decision stated that penalty rates for work before 7.00 am and after 9.00 pm on a Sunday will be the subject of further proceedings and accordingly the existing rates remain in force for hours worked during those hours – final determinations to come into operation on 1 July 2017.

Court summary

Federal Court of Australia

Application [VID684/2017] filed 23 June 2017 seeking relief under sections 562 and 23 of the Federal Court of Australia Act 1976.

Status

A case management hearing was held for this matter and VID685/2017 jointly on 5 July 2017. Justice Bromberg made the following Orders:

• The applicants to file and serve any further affidavits and an outline of submissions by 14 July 2017,
• The respondents (not the Commission) are to file and serve any affidavits and outlines of submissions by 4 August 2017, and
• The applicants file any reply materials by 25 August 2017.

His Honour programed the matter to a 3 day final hearing before a Full Court on or after 18 September 2017.

On 11 October, the Full Court dismisesd the originating application.

Matter: [2017] FWCFB 3334

Summary

Ross J, Catanzarati VP, Asbury DP, Hampton C and Lee C

MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – on 23 February 2017 the Commission issued a decision dealing with the weekend and public holiday penalty rates, and some related matters, in a number of awards in the Hospitality and Retail sectors (the Penalty Rates decision) [[2017] FWCFB 1001] – on 5 June 2017 the Commission issued the Penalty Rates – Transitional Arrangements decision [[2017] FWCFB 3001] which dealt with the implementation of the Penalty Rates decision including the determination of various transitional arrangements – draft variation determinations in respect of the Sunday penalty rate provisions in the Fast Food, Hospitality, Restaurant, Retail and Pharmacy Awards were published for comment on 7 June 2017 – submissions were received from the Australian Retailers Association, National Retail Association and Master Grocers Australia (the Retail Associations), Australian Industry Group (Ai Group), the Shop, Distributive and Allied Employees Association (SDA) and an organisation called WorkSight P/L – the expressions used in the draft determinations were consistent with the approach adopted by the Commission in the course of reviewing modern awards as part of the 4 yearly review (the Review) – the review of each modern award involves the publication of an exposure draft which reformats the award to make it simpler and easier to understand and incorporates consistent expressions – given the different stages of completion of the plain language re-drafting processes we have decided that the current form of the penalty rates provisions will be retained for the purpose of finalising these determinations – however, the drafting of these clauses will be revisited during the course of the Plain Language Project – one further matter in contention, is the application of the Penalty Rates decision to trainees employed under the terms of the Fast Food Award – employers are obliged to classify all employees covered by the award (including trainees) as either a level 1, level 2 or level 3 Fast Food Employee – Full Bench did not propose to vary the draft determination to make express reference to trainees – any interested party wishing to pursue this issue should file an application to vary the Fast Food Award so that the matter may be fully considered – there is a final matter, in relation to the Pharmacy Award – Sunday penalty rates under the Pharmacy Award are to be reduced for ordinary hours worked between 7.00 am and 9.00 pm on a Sunday – the Penalty Rates decision stated that penalty rates for work before 7.00 am and after 9.00 pm on a Sunday will be the subject of further proceedings and accordingly the existing rates remain in force for hours worked during those hours – final determinations to come into operation on 1 July 2017.

Court summary

Federal Court of Australia

Application [VID685/2017] filed 23 June 2017 seeking relief under sections 562 and 23 of the Federal Court of Australia Act 1976.

Status

A case management hearing was held for this matter and VID684/2017 jointly on 5 July 2017. Justice Bromberg made the following Orders:

• The applicants to file and serve any further affidavits and an outline of submissions by 14 July 2017
• The respondents (not the Commission) are to file and serve any affidavits and outlines of submissions by 4 August 2017, and
• The applicants file any reply materials by 25 August 2017.

His Honour programed the matter to a 3 day final hearing before a Full Court on or after 18 September 2017.

On 11 October, the Full Court dismisesd the originating application.

Matter: [2016] FWCFB 288

Summary

Watson VP, Sams DP and Booth C

RIGHT OF ENTRY – dispute over right of entry – discussions – ss.492, 505, 604 Fair Work Act 2009 – appeal – Full Bench – appellant and CQS could not agree upon a room or area of the premises in which a permit holder was to conduct interviews or hold discussions with employees – appellant sought a declaration that crib rooms of Dragline 34 and Dragline 35 were rooms or areas in which discussions may be held under s.492(3) of FW Act where agreement on location cannot be reached – at first instance the Commission found that appellant was not entitled to hold discussions in Draglines – for permission to appeal and an appeal – grounds of appeal advanced were: that the Commission's interpretation of s.492(3)(b) contrary to grammatical meaning of the words, inconsistent and contrary to purpose of the provision and inconsistent with objects of FW Act; that the Commission was wrong in failing to interpret s.492(3)(b) as meaning that if the purpose of an area or room was considered appropriate for the purpose of taking meal or other breaks by an occupier, that area, so long as the persons to be interviewed or participate in discussions ordinarily took meal or other breaks in that room or area, was appropriate for them to be interviewed or hold discussions with a permit holder; and that the Commission was wrong in failing to find that the purpose of an area or room that was provided to employees which contained all the things that are associated with eating meals or taking other breaks that are usually found in such an area was provided by their employer so that they could take their meal and other breaks – appellant submitted it was in the public interest to grant permission to appeal because the matter concerned an important question concerning the rights of permit holders and the rights of employees to participate in discussions; the matter concerned an important question about the proper construction of s.492(3)(b); and the matter has significant consequences for permit holders, occupiers of premises and employees and employers generally, and for the mining industry specially – first time since the enactment of the current s.492 that a Full Bench has been called upon to interpret the section – Full Bench found it was in the public interest that permission to appeal be granted – Austral Bricks Case adopted – no dispute that there was no agreement between the parties on a room or area to conduct an interview or hold discussions – dispute centred on the arguments of the parties in relation to the requirements of s.492(3)(b) – held the broad language of the section must be given its ordinary and natural meaning – Full Bench did not consider that the use of an area for multiple purposes deprives it of the description in s.492(3)(b) – key consideration was the purpose or purposes of providing the area from the employer's perspective – as the area was provided, in part, for the taking of meal and other breaks it satisfies the description in s.492(3)(b) – Full Bench concluded that a permit holder may conduct an interview or hold discussions in the specified locations – appeal allowed – decision at first instance quashed.

Court summary

High Court of Australia

Application [B16/2017] filed 10 April 2017 for special leave to appeal the Full Court of the Federal Court in matter [QUD146/2016].

Status

On 15 August 2017 the High Court dismissed the applicant for special leave to appeal filed by Central Queensland/BM Alliance Coal.

Matter reviewed: [2017] FWCFB 584

Summary

Hatcher VP, Hamberger SDP and Gostencnik DP

MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – Clause 14 of the Black Coal Mining Industry Award 2010 makes provision for severance and retrenchment payments to be made to redundant employees – on 10 April 2015 a Full Bench of the Commission issued a decision [[2015] FWCFB 2192] and determination varying the Award by deleting clause 14.4(c) – as part of the 4-yearly review of awards, the Coal Mining Industry Employer Group subsequently proposed a variation to clause 14 to introduce a cap to the maximum entitlement payable – in conducting a 4-yearly review, the Commission takes into account the historical context applicable to each modern award and previous decisions relevant to any contested issue – severance pay was first introduced by a decision of the Coal Industry Tribunal (CIT) in 1973 – scheme further enhanced by CIT by the addition of the retrenchment pay scale in 1984 – Full Bench satisfied that it remains appropriate for the Award to continue to contain an industry-specific redundancy scheme broadly along the lines of that contained in clause 14 – largely because of the long history of the scheme, and its acceptance by employers and employees in the industry over many years – satisfied that there are certain distinctive features of the black coal mining industry that support the retention of the industry-specific redundancy scheme – given the abolition of the 60 years of age redundancy cap, the current entitlement is not the industry based scheme that previously existed – Full Bench held some amendment to clause 14 necessary – a cap, based on complete years of employment, should be applied to the retrenchment payment of two weeks for each completed year of employment in order to restore the industrial balance in the scheme in a non-discriminatory way – effective cap of 15 completed years of employment (or 30 weeks payment) should be applied to the retrenchment payment – a 'grandfathering clause' should be adopted to protect those employees who have already completed more than 15 years of employment – draft revised clause 14 of the Award attached – interested parties invited to file written submissions about the form of the proposed clause within 14 days of decision.

Court summary

Federal Court of Australia

Application [NSD352/2017] was filed on 14 March 2017, seeking relief under under section 39B of the Judiciary Act and section 23 of the Federal Court Act.

Status

This matter was heard before a Full Court of the Federal Court on 2 August 2017. On 17 August 2017 the Full Court held that the matter was dismissed.

Matter: [2016] FWCFB 8120

Summary

Watson VP, Dean DP and Harper-Greenwell C

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – issue determined by the Commission at first instance concerned the question of whether the MFB was restricted from implementing a decision to terminate the employment of Mr Duggan by the operation of the Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia, Operational Staff Agreement 2010 (the Agreement) – MFB sought to terminate the employment of Mr Duggan, a recruit firefighter, after learning of conduct which occurred prior to his employment – Commission ultimately determined that it could not – grounds of appeal – MFB alleged a number of errors in the Commission's consideration of the issue of whether the Commission could, via the dispute resolution procedure under the Agreement, prevent the MFB exercising its statutory powers of dismissal – grounds of cross-appeal included that the Commission erred in concluding that the MFB provides a 'health service' in Victoria and ordering that Mr Duggan's probationary period be extended notwithstanding s.25B(2) of the Metropolitan Fire Brigades Act 1958 (Vic) – role of the Commission in relation to disputes arising under a dispute settlement clause of an agreement clarified by the High Court in CFMEU v AIRC – clause 19.7 of the Agreement provides that a decision of the Commission may be appealed – Full Bench held the power to hear and determine an appeal under FW Act was not invoked by this appeal and there was no requirement to satisfy the Commission that permission to appeal should be granted – necessary for the Commission to ascertain the character of the dispute before it in order to determine whether the matter is a dispute over the application of the agreement, and, importantly, the character of the dispute is distinguishable from the order that may be made in settlement of the dispute [Maritime Union of Australia v Australian Plant Services P/L] – power conferred on Commission by the parties is a power with respect to the dispute in question – this requires a proper characterisation of the dispute and confining the arbitration power to that dispute – MFB contended that the Commission travelled beyond the dispute between the parties and ruled on matters that were not part of the dispute before the Commission – specifically, it contended that the dispute was confined to an allegation of a failure to consult over changes to the Police Check Policy and the Commission having concluded that there was not, that should have been the end of the dispute – Full Bench considered there was substance to this ground of appeal – dispute was over changes in policy related specifically to the Police Check Policy – UFU made no allegation about breach of any probation policy and the matter was not subject to evidence or submissions by the parties – unable to discern any basis in the material before the Commission to suggest that the dispute between the parties included a dispute about the extent of consultation over a change to a policy regarding probation and probationary employee – Full Bench held that in purporting to determine such a dispute the Commission ventured beyond the dispute between the parties, made findings on matters that the parties were not given an opportunity to address and exceeded the power of private arbitration conferred by the agreement – it followed from this conclusion that elements of the decision at first instance that relate to, or flow from, the consideration of the issue of an alleged failure to consult over a change of policy regarding probation cannot stand – issue remained as to whether the Commission could have dealt with other issues relating to the decision to terminate Mr Duggan's employment by reference to the matters raised by the UFU concerning the appropriateness of relying on the NCAT decision – it would appear that a decision to terminate employment of an employee is a matter pertaining to the employment relationship – permitting the dispute settlement clause to be a vehicle for determining the fairness of the decision to terminate Mr Duggan's employment within the six month qualifying period for an unfair dismissal remedy confers a remedy in relation to the termination of the employee's employment – such a use of the dispute settlement clause renders the term to be an unlawful term under s.194 of FW Act and of no effect to that extent – Full Bench held that general issues of fairness of the decision to terminate Mr Duggan's employment are not capable of agitation under the dispute settlement procedure – parties cannot confer a statutory power to make orders of a binding force on the Commission – found it was inappropriate for the Commission to purport to make orders in arbitrating the dispute and it was inappropriate that any of the orders survive this appeal – appeal allowed – decision and orders quashed.

Court summary

Fair Work Division of the Federal Court of Australia

Application [VID1455/2016] filed 19 December 2016 seeking relief under s. 39B Judiciary Act 1903.

Status

This matter was listed for hearing before a Full Court of the Federal Court on 3 April 2017.

On 3 August 2017 a Full Court consisting of Tracey, Wigney and O'Callaghan JJ ordered that the application be refused.

Matter: [2017] FWCFB 660

Summary

Hatcher VP, Gostencnik DP and Williams C

ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appellant applied for permission to appeal and appealed three decisions approving enterprise agreements made by three different employers and their employees – the decisions, and the enterprise agreements to which they relate, are: a decision issued on 8 August 2016 (MMAOL Decision), where Cloghan C approved the MMAOL P/L Enterprise Agreement 2016 (MMAOL Agreement); a decision issued on 1 August 2016 (DOF Decision), where Binet DP approved the DOF Management Australia P/L Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (DOF Agreement); and a decision issued on 2 August 2016 (Smit Lamnalco Decision), where Roe C approved the Smit Lamnalco Australia Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (Smit Lamnalco Agreement) – appellant applied for the appeals to be heard together on the basis that they involved common factual and legal issues – this was resisted by the respondents (MMA Offshore Logistics P/L (MMAOL), DOF Management Australia P/L (DOF) and Smit Lamnalco Australia P/L (Smit Lamnalco)) – appeals heard sequentially – at the outset of hearing of first appeal, a member of the Full Bench raised with the parties an issue potentially affecting whether the DOF Agreement and the Smit Lamnalco Agreement were capable of approval under FW Act – issue had not been raised by appellant – issue was whether in each case a Notice of Employee Representational Rights (NERR) had been provided to employees who would be covered by the relevant agreement in accordance with requirement contained in s.174(1A) of FW Act – appellant sought leave to amend its notices of appeal with respect to the DOF Decision and the Smit Lamnalco Decision – alleged defect in NERR in each case was that it had not complied with prescribed form in Schedule 2.1 of Fair Work Regulations 2009 (FW Regulations), in that the form required telephone number of the Fair Work Commission Infoline (1300 799 675) be inserted but that the NERR in each case inserted a different telephone number, being that of the Fair Work Ombudsman (13 13 94) – Full Bench received written submissions from the parties concerning whether appellant should be granted leave to amend its notices of appeals – after the Full Bench had received those submissions, a Full Court of the Federal Court delivered its decision in Aldi – Aldi was concerned in part with the effect of s.174(1A) and consequence of failure to issue an NERR in accordance with the prescribed form – parties requested and were provided with an opportunity to file further written submissions in light of this decision – NERR prescribed by Schedule 2.1 does not actually set out the telephone number of the Fair Work Commission Infoline, but requires that number to be inserted – convenient to note that Commission's website has at all relevant times contained a guide to completing and issuing the NERR, which identifies Fair Work Commission Infoline as being 1300 799 675 and contains a sample NERR which includes that telephone number – the matters agitated by appellant in the appeals may be placed in three categories – (1) a contention common to all three appeals, namely that that all three agreements had been made as a part of scheme amongst several industry employers to avoid bargaining with MUA and to thereby establish new industry standard of lesser employment conditions than that which currently exists (this issue was raised in grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal, and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal) – (2) matters specific to each appeal identified in the other grounds of the notices of appeal as they were at the time of the hearing (grounds 1-2 and 5-6 of the MMAOL Agreement notice of appeal, ground 1 of the DOF Agreement notice of appeal, and grounds 1-2 and 5-6 of the Smit Lamnalco Agreement notice of appeal) – (3) the NERR issue in relation to the DOF Agreement and the Smit Lamnalco Agreement – 'confidence in the agreement approval process' may be a significant matter weighing in favour of permission to appeal in respect of an appeal against a decision to approve an enterprise agreement, and that this may outweigh the fact that arguments proposed to be advanced in the appeal were not agitated at first instance [Hart] – in respect of the 'common issue' under appeal (grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal, and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal) the Full Bench considered that permission to appeal should be granted – further, the Full Bench admitted new evidence which appellant sought to adduce in support of these grounds of appeal – Full Bench also considered that permission to appeal should be granted in respect of grounds 1 and 2 of the MMAOL Agreement Decision appeal, ground 1 of the DOF Agreement Decision appeal and grounds 1 and 2 of the Smit Lamnalco Agreement Decision appeal – permission to appeal was refused in relation to grounds 5 and 6 of the MMAOL Agreement Decision appeal and grounds 5 and 6 of the Smit Lamnalco Agreement Decision appeal – in relation to the additional ground concerning the NERR issue sought to be raised in the DOF Agreement Decision appeal and the Smit Lamnalco Agreement Decision appeal, the Full Bench granted the appellant leave to amend its notice of appeal to add the additional ground in each case, and granted permission to appeal in respect of that ground – the common issue – necessary to make three significant observations about the statutory scheme for enterprise bargaining in FW Act – first was that there was nothing in the approval requirements for enterprise agreements in ss.186 and 187 of the FW Act which expressly prohibited the approval of enterprise agreements which had been established within a broader framework of industry bargaining or which reflected a standard established in an industry – second was that, subject to satisfaction of the BOOT requirement, the statutory scheme did not prohibit an employer from bargaining for wages and other conditions of employment which were inferior to those contained in an earlier enterprise agreement and/or those prevailing in an industry – third was that where an employee is not a member of an employee organisation, it is up to the employee to select who will represent him or her as a bargaining representative for a proposed enterprise agreement – appellant's contention was that the three agreements came about as a result of a scheme between employers orchestrated by Australian Mines and Metals Association (AMMA) to obtain template enterprise agreements in maritime offshore oil and gas industry which undercut industry standard terms and conditions of employment established in the 2010 industry bargaining round, and to achieve this result by avoiding bargaining with the appellant – none of the employees covered by the agreements were at any relevant time members of appellant, so appellant could not have been their default bargaining representative at any time – the employees nominated persons other than appellant to be their bargaining representatives, and accordingly there was no basis for appellant to be involved in the bargaining process – grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal were rejected – other MMAOL Agreement appeal grounds – first appeal ground in relation to MMAOL Decision concerned the 'genuinely agreed' approval requirement – at first instance the Commissioner did not analyse the 'genuinely agreed' requirement in any detail, but only recorded his satisfaction that the requirement had been satisfied – new evidence which was adduced did not provide a proper basis for concluding that the MMAOL Agreement was not genuinely agreed – Full Bench considered the Commissioner was entitled to reach a state of satisfaction concerning the 'genuinely agreed' requirement based on the material before him – second appeal ground concerned the 'fairly chosen' requirement – appellant submitted the Commissioner erred by applying the test by reference to the employees who voted on the agreement, and not in relation to the group of employees covered by it – Full Bench found that in MMAOL Decision, the Commissioner made it clear that he understood that the requirement was to be assessed by reference to the coverage of the agreement under consideration – rejected the contention that the Commissioner failed to apply the proper test – Full Bench found no appealable error in the Commissioner's findings concerning business rationale for choice of coverage of the MMAOL Agreement – other DOF Agreement appeal grounds – ground 1 of the appellant's notice of appeal against the DOF Decision is in the same terms as ground 1 of the MMAOL Decision appeal – appeal ground raised issues concerning the 'genuinely agreed' approval requirement – Full Bench considered the material that was before the Deputy President was sufficient to enable her to reach a state of satisfaction concerning the 'genuinely agreed' requirement – appeal ground rejected – other Smit Lamnalco appeal grounds – ground 1 of Smit Lamnalco Decision appeal also concerned the 'genuinely agreed' approval requirement – Full Bench considered the Commissioner took into account the various factual considerations weighing for and against the conclusion that the agreement of the employees was genuine – appeal ground rejected – other appeal grounds also rejected – the NERR issue – no capacity to depart from the template in FW Regulations [Peabody] – consequence of failing to give a valid NERR is that the Commission cannot approve any subsequent enterprise agreement that is made [Peabody] – in Aldi, the Federal Court Full Court considered a challenge to the validity of the approval by the Commission of a particular enterprise agreement on a number of grounds including that the NERR issued by the employer did not conform to the form of the NERR in Schedule 2.1 – no member of the Full Court expressed the view that Peabody was incorrect – in light of Aldi, the Full Bench considered that the proper course was to follow Peabody and approach the NERR issue on the basis that a purported NERR which did not strictly comply with the prescribed form in Schedule 2.1 was invalid, and that an enterprise agreement which proceeded on the basis of an invalid NERR was incapable of approval – KCL considered – even if requirement for strict compliance still allowed some capacity for errors of an entirely trivial nature to be overlooked (the possibility of which was adverted to by Jessup J in Aldi at [49] and by the Full Bench in KCL at [17]), the Full Bench did not consider that the defect in the NERRs could be characterised as trivial – Full Bench concluded that the DOF Agreement and the Smit Lamnalco Agreement could not have validly been approved because the NERRs which the employer issued in each case were invalid – accordingly the DOF Decision and the Smit Lamnalco Decision must be quashed, and the applications for approval of the DOF Agreement and the Smit Lamnalco Agreement must be dismissed.

Court summary

Fair Work Division of the Federal Court of Australia

Application [WAD38/2017] filed 9 February 2017 seeking relief under s.39B Judiciary Act 1903.

Status

On 17 February 2017 Justice McKerracher granted DOF Management a stay of the Full Bench's decision of 1 February 2017, pending the hearing and determination by the Federal Court of the substantive proceeding.

This matter was listed for hearing before a Full Court of the Federal Court on 22 August 2017. On 16 June 2017 the signed consent orders for the discontinuation of the above matter were filed in the Court.

Matter reviewed:  [2014] FWCFB 3530

Summary

Drake SDP, Sams DP and McKenna C

TERMINATION OF EMPLOYMENT – extension of time – ss.394, 604 Fair Work Act 2009 – appeal – Full Bench – Commissioner refused grant of extension of time for lodgement of application for unfair dismissal remedy – objection to Presiding Member of Full Bench on basis of gender dismissed – applicant submitted multiple grounds of appeal – Full Bench not satisfied any errors identified by applicant are relevant or significant when taken individually or cumulatively – no public interest – appeal dismissed.

Court summary

High Court of Australia.

Application [C4/2017] was filed on 28 February 2017, seeking special leave to appeal from Federal Court.

Status

This application sought special leave to appeal from the Full Court of the Federal Court decision in matter [ACD81/2015], in which the appellant's appeal application against a single Judge of the Federal Court was dismissed.

This matter was determined on the papers and judgment was handed down on 3 May 2017. Justice Gordon found that the appeal would enjoy no prospect of success and the application was dismissed.

Matter reviewed: [2014] FWCFB 3027

Summary

Richards SDP, Asbury DP, Booth C

TERMINATION OF EMPLOYMENT – valid reason – ss.394, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss application for unfair dismissal remedy – appellant informed respondent he was fit to return to work following extended sick leave and shoulder surgery – appellant provided generalised medical certificates to that effect – respondent directed appellant to attend medical appointment with company-nominated doctor to determine fitness for work – appellant refused to attend – appellant dismissed – whether direction was lawful and reasonable – respondent claimed it was acting under Coal Mining Health and Safety Act 1999 (Qld) (CMHS Act) – Full Bench adopted appeal principles set out in Bluescope Steel – Commissioner properly construed power available under CMHS Act for respondent to direct appellant on reasonable grounds to attend functional assessment – in any event, respondent able to direct appellant to do such things that are not unlawful, and which are reasonable and properly an incident of employment relationship, or within scope of contract for service – respondent’s direction to appellant can be so characterised – Commissioner did not err in conclusion that there was a valid reason for dismissal – satisfied Commissioner’s inference that appellant had wilfully elected not to attend medical appointments open to her given the evidence – Full Bench did not seek to displace Commissioner’s reasoning as based on the evidence before her – findings open to Commissioner – Commissioner apportioned relative weight to matters under consideration – no error in Commissioner’s approach in this regard – considered several other appeal grounds – no errors of law or significant errors of fact identified – application raises issues of general application for employees in coal mines in coalmining operations in Queensland and who are subject to CMHS Act and Regulations – bears on proper interpretation of how health assessments are authorised – there were also claims that decision was not harmonious with decision of Queensland Court of Appeal – public interest justifies granting permission to appeal – Commissioner’s decision upheld – appeal dismissed.

Court summary

Fair Work Division of the Federal Court.

Application [QUD1162/2015] filed on 23 December 2015.

Status

This matter is on appeal from the single Judge decision of Collier J, which was handed down on 4 December 2015.

This matter was listed for hearing before a Full Federal Court on 2 August 2016. On 10 March 2017 the Full Court of the Federal Court, consisting of Dowsett, Barker and Rangiah JJ, held that the appeal against the single Judge in [QUD429/2014] be dismissed.

Matter: [2016] FWCFB 288

Summary

Watson VP, Sams DP and Booth C

RIGHT OF ENTRY – dispute over right of entry – discussions – ss.492, 505, 604 Fair Work Act 2009 – appeal – Full Bench – appellant and CQS could not agree upon a room or area of the premises in which a permit holder was to conduct interviews or hold discussions with employees – appellant sought a declaration that crib rooms of Dragline 34 and Dragline 35 were rooms or areas in which discussions may be held under s.492(3) of FW Act where agreement on location cannot be reached – at first instance the Commission found that appellant was not entitled to hold discussions in Draglines – for permission to appeal and an appeal – grounds of appeal advanced were: that the Commission's interpretation of s.492(3)(b) contrary to grammatical meaning of the words, inconsistent and contrary to purpose of the provision and inconsistent with objects of FW Act; that the Commission was wrong in failing to interpret s.492(3)(b) as meaning that if the purpose of an area or room was considered appropriate for the purpose of taking meal or other breaks by an occupier, that area, so long as the persons to be interviewed or participate in discussions ordinarily took meal or other breaks in that room or area, was appropriate for them to be interviewed or hold discussions with a permit holder; and that the Commission was wrong in failing to find that the purpose of an area or room that was provided to employees which contained all the things that are associated with eating meals or taking other breaks that are usually found in such an area was provided by their employer so that they could take their meal and other breaks – appellant submitted it was in the public interest to grant permission to appeal because the matter concerned an important question concerning the rights of permit holders and the rights of employees to participate in discussions; the matter concerned an important question about the proper construction of s.492(3)(b); and the matter has significant consequences for permit holders, occupiers of premises and employees and employers generally, and for the mining industry specially – first time since the enactment of the current s.492 that a Full Bench has been called upon to interpret the section – Full Bench found it was in the public interest that permission to appeal be granted – Austral Bricks Case adopted – no dispute that there was no agreement between the parties on a room or area to conduct an interview or hold discussions – dispute centred on the arguments of the parties in relation to the requirements of s.492(3)(b) – held the broad language of the section must be given its ordinary and natural meaning – Full Bench did not consider that the use of an area for multiple purposes deprives it of the description in s.492(3)(b) – key consideration was the purpose or purposes of providing the area from the employer's perspective – as the area was provided, in part, for the taking of meal and other breaks it satisfies the description in s.492(3)(b) – Full Bench concluded that a permit holder may conduct an interview or hold discussions in the specified locations – appeal allowed – decision at first instance quashed.

Court summary

Fair Work Division of the Federal Court

Application [QUD194/2016] filed 10 March 2016 seeking relief under section 39B of the 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 directions hearing before Justice Rangiah on 22 June 2016.

The applicant sought interlocutory relief to have this matter heard with matter QUD146/2016. On 22 June 2016 Rangiah J ordered that the two matters be heard together, or immediately before or after one another.

This matter was listed for hearing on 16 November 2016. Judgment of the Full Court of the Federal Court, consisting of Jessup, Tracey and Reeves JJ, was handed down on 10 March 2017. The Court ordered that this application along with [QUD146/2016] be dismissed.

Matter: [2016] FWCFB 288

Summary

Watson VP, Sams DP and Booth C

RIGHT OF ENTRY – dispute over right of entry – discussions – ss.492, 505, 604 Fair Work Act 2009 – appeal – Full Bench – appellant and CQS could not agree upon a room or area of the premises in which a permit holder was to conduct interviews or hold discussions with employees – appellant sought a declaration that crib rooms of Dragline 34 and Dragline 35 were rooms or areas in which discussions may be held under s.492(3) of FW Act where agreement on location cannot be reached – at first instance the Commission found that appellant was not entitled to hold discussions in Draglines – for permission to appeal and an appeal – grounds of appeal advanced were: that the Commission's interpretation of s.492(3)(b) contrary to grammatical meaning of the words, inconsistent and contrary to purpose of the provision and inconsistent with objects of FW Act; that the Commission was wrong in failing to interpret s.492(3)(b) as meaning that if the purpose of an area or room was considered appropriate for the purpose of taking meal or other breaks by an occupier, that area, so long as the persons to be interviewed or participate in discussions ordinarily took meal or other breaks in that room or area, was appropriate for them to be interviewed or hold discussions with a permit holder; and that the Commission was wrong in failing to find that the purpose of an area or room that was provided to employees which contained all the things that are associated with eating meals or taking other breaks that are usually found in such an area was provided by their employer so that they could take their meal and other breaks – appellant submitted it was in the public interest to grant permission to appeal because the matter concerned an important question concerning the rights of permit holders and the rights of employees to participate in discussions; the matter concerned an important question about the proper construction of s.492(3)(b); and the matter has significant consequences for permit holders, occupiers of premises and employees and employers generally, and for the mining industry specially – first time since the enactment of the current s.492 that a Full Bench has been called upon to interpret the section – Full Bench found it was in the public interest that permission to appeal be granted – Austral Bricks Case adopted – no dispute that there was no agreement between the parties on a room or area to conduct an interview or hold discussions – dispute centred on the arguments of the parties in relation to the requirements of s.492(3)(b) – held the broad language of the section must be given its ordinary and natural meaning – Full Bench did not consider that the use of an area for multiple purposes deprives it of the description in s.492(3)(b) – key consideration was the purpose or purposes of providing the area from the employer's perspective – as the area was provided, in part, for the taking of meal and other breaks it satisfies the description in s.492(3)(b) – Full Bench concluded that a permit holder may conduct an interview or hold discussions in the specified locations – appeal allowed – decision at first instance quashed.

Court summary

Fair Work Division of the Federal Court

Application [QUD146/2016] filed 19 February 2016 seeking relief under section 39B of the 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 directions hearing before Justice Rangiah on 22 June 2016.

The applicant in matter QUD194/2016 sought interlocutory relief to have that matter heard with this matter. On 22 June 2016 Rangiah J ordered that the two matters be heard together, or immediately before or after one another.

The matter was listed for hearing on 16 November 2016. Judgment of the Full Court of the Federal Court, consisting of Jessup, Tracey and Reeves JJ, was handed down on 10 March 2017. The Court ordered that this application along with [QUD194/2016] be dismissed.

Matter reviewed: [2014 FWCFB 3501]

Summary

Hatcher VP, Drake SDP and Cargill C

ENTERPRISE BARGAINING – majority support determination – ss.236, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision that AMWU not entitled to represent the industrial interests of certain ResMed employees – AMWU entitled to represent the industrial interests of an employee if it may 'enrol the employee as a member in accordance with its eligibility rules' – proceedings at first instance and in this appeal relate to sub-rule 1A of the AMWU’s eligibility rules – general principles applicable to the interpretation of union eligibility rules considered – proper construction of AMWU’s Rule 1A(a) [Federated Tobacco Workers Union] – interpretation of the terms 'machinist', 'assembler', and 'engineering. and kindred trades' critical – history of eligibility rules considered – permission to appeal granted – Full Bench found the AMWU did have the capacity under its rules to enrol as members and to represent the industrial interests of the following categories of ResMed employees at its Bella Vista site: mask assemblers in the Patient Interface work group, employees in the Ventilation work group and employees in the Machines work group – in respect of employees in the Accessories and Spares work group, matter referred for reconsideration to a single member of the Commission.

Court summary

Fair Work Division of Federal Court of Australia.

Application [NSD846/2014] under s 39B of the Judiciary Act filed 14 August 2014.

Status

Listed for directions on 26 November 2014. On 22 April 2015 the honourable Justice Perry ordered that:

• The amended originating application for relief filed by the applicant on 15 September 2014 be dismissed in so far as it seeks the orders set out in paragraphs 2 and 3 of that application, and
• The question of costs of and incidential to the interloctory application filed 8 October 2014 and amended on 10 December 2014 is reserved.

The matter was set down for an interlocutory hearing on 14 May 2015.

On 29 May 2015 Justice Perry handed down an interlocutory judgment in matters NSD846/2014 and NSD915/2014 (to which the FWC is not a party). The Court ordered that:

• The proceedings be stayed until matters D2014/70 and C2015/1008 are heard and determined by the Fair Work Commission,
• The parties notify the Court within 2 working days of the applications referred to in order 1 above being determined by the Commission, and
• The question of costs is reserved.

ResMed filed two applications [NSD671/2015] and [NSD672/2015] for leave to appeal the interlocutory judgment of Perry J on 10 June 2015. On the 19 June 2015 Jessup J ordered that the two applications for leave to appeal are dismissed.

The application was dismissed by consent on 29 May 2015.

This matter remained open on a question of costs along with NSD915/2014 and NSD127/2016 until 3 March 2017, when consent orders were issued that there be no order as to costs in these matters.

Matter reviewed: [2016] FWCFB 22

Summary

Hatcher VP, Lawrence DP and Johns C

REGISTERED ORGANISATIONS – alteration of eligibility rules – ss.137A, 158(1) Fair Work (Registered Organisations) Act 2009 – Full Bench – applications for consent to alteration of eligibility rules and an order about representation rights of an organisation of employees – two applications relating to the industrial representation of employees of ResMed – in the first application the AMWU sought Commission consent under s.158 of the RO Act to the addition of a new sub-rule to rule 1, Name Objects and Constitution of the AMWU's Rules which specifically named employees employed by ResMed as eligible for membership – in the second application ResMed sought an order under s.137A(1)(b) that the AMWU was not to have the right to represent the industrial interests employees employed by ResMed – Full Bench held the appropriate course was to first determine the AMWU rules application and then, by reference to the extent of the AMWU coverage which results from that determination, to determine the ResMed representation application – ResMed's business activities are the research, design and manufacture of medical devices for the treatment of sleep disordered breathing and cardio-respiratory disorders – AMWU has had members employed by ResMed since at least 1996 – at the time of the hearing it had 132 members, overwhelmingly Production and Warehouse employees or Manufacturing Equipment and Tooling Support (METS) employees in the Manufacturing Centre – no evidence the AMWU has or has had any members in the Innovation Centre or Gate House – extensive litigation between parties since late 2009 – from late 2014 ResMed has refused to recognise the AMWU as a representative of any of its employees (with the possible exception of METS employees) – ResMed contended that the AMWU had engaged in certain conduct which should disqualify it from having the right to represent ResMed employees – primary contention was that the AMWU had distributed eight leaflets which contained 'information that is incorrect' and had 'caused or potentially caused unnecessary confusion, concern and angst for ResMed employees' – Full Bench considered that most of the criticism of these leaflets was unfounded – AMWU rules application – current coverage: employees who may be characterised as employed in or in connection with the engineering and kindred trades are eligible to be members of the AMWU – no dispute that the AMWU has coverage of METS employees however, outside of Production and Warehouse employees and METS employees, it is difficult to make definitive conclusions – ResMed employs a range of engineers in various business units in both the Manufacturing Centre and the Innovation Centre – many if not all of ResMed's engineers would be eligible to join the AMWU under rule 1C(a)(ii) of the AMWU's Rules – likely there are other Professional and Administrative employees in the Manufacturing Centre and Innovation Centre who would be eligible to join the AMWU because of its coverage of draughtspersons of various types (rule 1C(a)(iv)); Testers of Engineering Materials, Production Planners, Planners of Engineering Production, Manufacturing Processes (rule 1C(a)(vi)); and Foremen and Supervisors of Engineering Production or Manufacturing Process in the Engineering industry (rule 1C(a)(vii)) – in relation to the Innovation Centre and the Gate House, the evidence is not such as to allow a finding that the AMWU currently has coverage of any other employees – general principles applicable to the interpretation and application of s.158 of the RO Act to applications for consent to alterations of eligibility rules in Re Australian Licenced Aircraft Engineers Association adopted – Full Bench not satisfied there was any discretionary basis to entirely refuse consent to the rule alteration however there were a number of discretionary considerations which militate against granting consent to the AMWU's rule alteration in whole – not considered appropriate to consent to the rule alteration to the extent it would extend the AMWU's coverage to those parts of the business in the Innovation Centre, the Gate House or the Sleep Centre/Service Centre – consent granted to the rule alteration in part only, being employees engaged in that component of the ResMed business currently conducted in the Manufacturing Centre who are not managers – ResMed representation application – a jurisdictional prerequisite for the making of an order under s.137A that there be an actual, threatened, impending or probable dispute about the entitlement of an organisation of employees to represent, under the RO Act or the FW Act, the industrial interests of employees – a 'strong case' would be needed to justify the making of an order under s.137A to deprive an employee of the right to be represented by an organisation which he or she is eligible to join – the AMWU has been the only union which has endeavoured to provide employees with industrial representation if they desire it – Full Bench do not consider there was any proper discretionary basis for the grant of the s.137A order sought by ResMed – ResMed representation application dismissed.

Court summary

Fair Work Division of the Federal Court.

Application [NSD127/2016] filed 27 January 2016, seeking relief under section 39B of the Judiciary Act.

Status

On 24 February 2017 a Full Court of the Federal Court handed down judgment in this matter. The Court held that the application be dismissed.

Matter: [2016] FWCFB 5270

Summary

Drake SDP, Asbury DP and Bissett C

TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant's employment as Registered Nurse terminated for failure to meet professional standards – respondent raised multiple allegations of poor performance – investigation conducted – applicant submitted she was not afforded procedural fairness in investigation – Commission found respondent should have assisted applicant more during investigation process – applicant afforded opportunity to respond to allegations but spent more time raising procedural arguments – Commission held applicant's performance and reluctance to engage in investigation constituted valid reasons for dismissal – respondent entitled to have lost trust and confidence in applicant – dismissal not harsh, unjust or unreasonable – application dismissed.

Court summary

Federal Circuit Court of Australia, transferred to the Federal Court of Australia on 21 November 2016.

Application [BRG804/2016] and [QUD875/2016] filed 30 August 2016 seeking relief under s. 39B Judiciary Act 1903.

Status

This matter was discontinued on 22 February 2017.

Matter: [2016] FWCFB 5243

Summary

O'Callaghan SDP, Binet DP and Hampton C

TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – application for unfair dismissal remedy dismissed at first instance – appellant employed by respondent labour hire company to work at BHP Billiton Petroleum Inc (BHPB) site – dismissed after BHPB exercised contractual right to direct respondent to remove appellant from site – Commission held dismissal not harsh, unjust or unreasonable – appeal on grounds that Commission erred in finding question of valid reason did not arise on facts – Full Bench granted permission to appeal as appeal raised broader question regarding obligations of labour hire employer – Full Bench found BHPB's instruction that appellant not permitted to work on site represented matter going to employee's capacity to work – required consideration under s.378(a) of FW Act to determine whether valid reason for dismissal – Commission to consider and reach conclusions about each factor specified in s.387 [Mulhall] – held Commission erred in finding circumstances of dismissal did not give rise to consideration of valid reason – appeal upheld – matter redetermined – to be valid reason, must be defensible or justifiable on objective analysis of facts – Full Bench satisfied employer had valid reason relating to employee's capacity and only exercised reason because genuinely unable to find suitable alternate employment – Adecco distinguished – having considered s.387 factors, Full Bench held dismissal not harsh, unjust or unreasonable – Commission order dismissing unfair dismissal application confirmed.

Court summary

Fair Work Division of the Federal Court of Australia

Application [NSD1697/2016] filed 30 September 2016 seeking relief under s. 39B Judiciary Act 1903.

Status

This applicant discontinued the matter on 14 February 2017.