Fair Work Commission

Matter: [2019] FWCFB 3864

Summary

Catanzariti VP, Hamberger SDP, Bissett C

TERMINATION OF EMPLOYMENT – unfair dismissal – s.394 Fair Work Act 2009.

Court summary

Fair Work Division of the Federal Court of Australia

Application WAD433/2019 filed 72 August 2019 seeking relief under s.39B of the Judiciary Act.

Status

This matter was heard on 11 October 2019.

The matter was discontinued.

Matter: [2019] FWCFB 1099

Summary

Gostencnik DP, Colman DP, Saunders DP

TERMINATION OF EMPLOYMENT – minimum employment period – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – decision at first instance dismissed appellant's jurisdictional objections – Full Bench found Commission erred in concluding appellant was not small business employer – found Commission erred in assuming s.23 FW Act concerned whether casual employee had reasonable expectation of continuing employment – found insufficient evidence to conclude casual employees employed on regular and systematic basis – Full Bench found Commission correct in determining respondent's casual service counted towards employment period – appeal upheld in parts – decision at first instance quashed, insofar as it determined that the appellant was not a small business employer and that the minimum employment period was six months – matter remitted to Wilson C for redetermination.

Court summary

Fair Work Division of the Federal Court of Australia

Application WAD162/2019 filed 27 March 2019 seeking relief under s.39B of the Judiciary Act.

Status

This matter was heard by a single Judge on 5 September 2019. Judgment was handed down on 16 October 2019 dismissing the application.

Matter: [2018] FWCFB 5967

Summary 

Catanzariti VP, Hamberger SDP, Simpson C

TERMINATION OF EMPLOYMENT – misconduct – ss. 387, 394, 396, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant dismissed on misconduct grounds following an incident of aggressive behaviour – Commission found at first instance that appellant breached employer's code of conduct – valid reason for dismissal – grounds for appeal included appellant's allegation that the originating decision was based on "fake" and "forged" documents and that respondent "lied" in first instance proceedings – appellant purported Commission erred in misunderstanding evidence – an appeal is "not the place to re-agitate the matters that have been considered at first instance" – no arguable case of error – Full bench not satisfied that it would be 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 NSD2357/2018 filed 18 December 2018 seeking relief under s.39B Judiciary Act 1903.

Status

This matter was heard by a single Judge on 15 August 2019.

The matter was dismissed on the 15 August 2019.

Matter: [2019] FWCFB 214

Summary

Hatcher VP, Anderson DP, Saunders DP

CASE PROCEDURES – apprehension of bias – ss.512, 604 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance dismissed appellant's application that the Commission Member recuse himself from an entry permit hearing on the ground of reasonable apprehension of bias – application founded on the fact that the Commisison Member 'retweeted' a politically contentious tweet on social media platform Twitter –  first instance application dismissed on the basis that the Commission Member had dealt with a large number of matters to which the CFMMEU was a party without complaint since the date of the 'retweet' – CFMMEU sought permission to appeal submitting it was denied procedural fairness as application for recusal was dismissed on sole basis that the Commission Member had dealt with a large number of matters which the CFMMEU was a party to since 'retweet' date –  Full Bench satisfied that appropriate in the circumstances to grant permission to appeal, uphold the appeal and quash the Decision – Ebner considered – Full Bench not satisfied that a fair minded lay observer would reasonably apprehend bias on the basis of the Commission Member's 'retweet' – application for recusal dismissed – Commission Member may continue to hear and determine s.512 applications for entry permits.

Court Summary

Fair Work Division of the Federal Court of Australia

Application QUD100/2019 filed 8 February 2019 seeking relief under s.39B Judiciary Act 1903.

Status

Matter was discontinued 31 May 2019.

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

This matter was dismissed by consent with no order as to costs on 30 May 2019.

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 – appelant 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 ti 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 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 ss.562, 563 of the FW Act, s.39B of the Judiciary Act 1903, and ss.21, 22 of the Federal Court of Australia Act 1976.

Status

This matter was heard before a Full Court on 13 February 2019.

On 2 May 2018 the Court made declarations in favour of those sought by the applicant.

Matter: [2018] FWCFB 5996 

Summary

Kovacic DP, Bull DP, Bisset C

MODERN AWARDS – 4 yearly review –  s.156 Fair Work Act 2009 –  Full Bench –  application by the Coal Mining Industry Employer Group (CMIEG) to vary accident pay provisions in the Black Coal Mining Industry Award 2010 (BCMI Award) –  CMIEG sought a reduction of accident pay under the BCMI Award from 78 weeks to 52 weeks, contending that the accident pay provision in the BCMI Award did not meet the modern awards objective as defined in s.134 of the FW Act – CMIEG submitted inter alia, that existing accident pay provisions in the BCMI Award are more generous than those in any other Award – application supported by the Australian Industry Group (AiG) –  application opposed by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and the Australian Manufacturing Workers' Union (AMWU) – Full Bench found that CMIEG's proposed amendments to the BCMI Award would, together with the NES, provide a fair and relevant safety net of minimum terms and conditions – accident pay in the BCMI Award reduced to 52 weeks – accident pay at the employee's "classifcation rate" reduced from 39 weeks to 13 weeks. 

Court summary

Fair Work Division of the Federal Court of Australia

Application NSD2337/2018 filed 14 December 2018 seeking relief under s.39B Judiciary Act 1903.

Status

This matter was heard by a Full Court on 28 May 2019.

The matter was dismissed on 27 June 2019.

Matter: [2019] FWCFB 1150

Summary

Hatcher VP, Sams DP, Hampton C

ENTERPRISE BARGAINING – protected action ballot – extension of industrial action period – ss.437, 443, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission made protected action ballot orders in relation to certain employees of four related entities: DP World Brisbane P/L; DP World (Fremantle) Ltd; DP World Melbourne Ltd and DP World Sydney Ltd (collectively DP World) – DP World sought that an extended period of 5 days' notice be ordered pursuant to s.443(5) of the FW Act – the Commission determined that the required period of notice should be extended as sought by DP World, and the Orders reflect this – the grounds for appeal included that the Commission did not give active and genuine consideration to the three stage process identified in the Full Bench decision in NTEU, and the interests of third parties – the Full Bench granted permission to appeal, finding the appeal raised the question of whether and how the interests of third parties, in this case the shipping lines serviced by the stevedoring industry, should be taken into account when determining the existence or otherwise of 'exceptional circumstances' – Full Bench found that when the Decision was read as a whole and in context, it was clear that the Commission was alive to the necessary factors required to have regard to when weighing up all the relevant facts and circumstances – found no error of law or principle which warranted appellate intervention – appeal dismissed.

Court Summary

Fair Work Division of the Federal Court of Australia

Application NSD414/2019 filed 19 March 2019 seeking relief under s.39B Judiciary Act 1903.

Status

This matter was heard by a Full Court on 30 May 2019.

The application was dismissed on 20 June 2019. The application for costs was also dismissed.

Matter: [2016] FWCA 6128

Summary

O'callaghan SDP

ENTERPRISE AGREEMENTS - variations - s.210 Fair Work Act 2009

Court summary

Fair Work Division of the Federal Court of Australia

Application NSD1036/2018 filed 14 June 2018 seeking relief under s39B of the Judiciary Act.

Status

Matter discontinued on 14 June 2019.

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 hearing from 2-6 March 2020. The Commission is no longer a party to the matter.

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 was heard before the Full Court on 15 November 2018.

On 1 March 2019, the Court ordered that the application be dismissed.

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.

On 19 February 2019, the Full Court ordered that the application be dismissed.