Lutheran Church of Australia, South Australia and Northern Territory District Inc T/A Lutheran Community Care, SA and NT has had its Lutheran Community Care Enterprise Agreement 2017 application granted.
September 22, 2017
A s.210 (Enterprise agreement) variation application by Lendlease Building Pty Ltd T/A Lendlease Building for its Lendlease/CFMEU (New South Wales, Australian Capital Territory, Victoria and Tasmania) Agreement 2016 has been approved by Deputy President Gostencnik in Melbourne on 21 September 2017.
September 22, 2017
A s.185 (Enterprise agreement) application by Lifeline Darling Downs and South West Queensland Ltd for its Lifeline Darling Downs & South West Queensland Limited Enterprise Bargaining Agreement 2017 has been granted by Commissioner Saunders in Melbourne on 21 September 2017.
September 22, 2017
ANTI-BULLYING – reasonable management action – repeated behaviour – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant employed by SA Mushrooms for approximately six years as mushroom grower – alleged he had been subject of bullying conduct since November 2016 by General Manager, Mr Brian Tipper, and Managing Director and Chief Executive Officer, Mr Nick Fernia – Commission noted this was second application by applicant with first application made in November 2016, which was discontinued following parties accepting recommendations of Commission – current application pursued, in part, on basis of alleged failure by employer parties to appropriately implement agreement to Commission’s recommendations – applicant claimed he had been bullied by way of both exclusionary conduct and unreasonable disciplinary action by management including being removed from out of hours contact list, being denied remote computer access, being denied mobile phone use whilst at work, being denied first aid certificate training, having work duties altered to his detriment, being offered part time work when he wished to remain full time, and being subjected to an unfair disciplinary process – Commission found claims in relation to exclusionary conduct unfounded – applicant claimed that warnings given in relation to alleged failure to protect casing structure which enclosed soil and growing mushrooms unfairly administered – Commission satisfied that warnings were issued based on genuine belief that they were justified – found that events on 24 May where Mr Fernia used loud and insulting language, whilst in the heat of the moment, was likely to offend long-serving employee and make him feel anxious and insecure about job security – regardless, found that warnings and Performance Improvement Programme was reasonable management action taken in reasonable manner – Commission found one instance of unreasonable management action taking place following application being lodged – incident involved letter issued by SA Mushrooms on 10 August in relation to applicant’s late attendance back at work following Commission conference – Commission not satisfied that criticism of applicant’s lateness could be sustained and considered it unreasonable management action – however, conduct not repeated – reaffirmed Recommendations made on 20 July that applicant be provided access to first aid training, that SA Mushrooms review operation of its ‘no mobile phones whilst working’ policy and that applicant be provided with opportunity to have support person at any further formal disciplinary meetings – further recommended letter of 10 August 2017 be withdrawn – application dismissed. Mr Stefan
September 22, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for misconduct – left a telephone message for respondent advising had overindulged and was not fit to work – parties exchanged correspondence where allegations, preliminary decision and findings were raised and addressed – difference between manner in which applicant responded to allegations and what was put forward in hearing – Commission found not dissimilar to an employee ‘taking a sicky’ without being ill – unclear why applicant did nothing to ensure she would be fit for next work day – found valid reason for dismissal but termination was harsh – conduct that led to first warning which related to language should not have been taken into account – dismissal incident was the first time applicant had conducted herself in such a manner – Commission agreed with respondent that applicant’s lack of awareness and commitment demonstrated trust and confidence required for an employment relationship had been destroyed – Commission found reinstatement inappropriate – took all circumstances into account including reduction for misconduct – ordered compensation of $8,229.00. Chapman v Tassal Group Limited t/a Tassal Operations P/L
September 22, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – application by the Shop, Distributive and Allied Employees Association (SDA) to insert provisions relating to blood donor leave into several modern awards – proposed two ordinary hours’ paid blood donor leave up to four occasions per year for permanent employees – submitted that provisions were necessary to achieve modern award objective having regard to the relatively lower pay of employees in the associated industries – submitted that there is a high social utility in donating blood that supports making the variation – Commission considered whether inclusion of terms about blood donor leave was necessary for the modern award objective to be met – considered National Retail Association v Fair Work Commission and CFMEU v Anglo American Metallurgical Coal P/L – not satisfied that blood donor leave needed to be part of a fair and relevant safety net of terms and conditions – found it remained possible and practicable for employees to donate blood outside of working hours – found provision was of little relevance to level of employees’ remuneration, working hours or conditions of work – found imposed some level of cost on employers due to short term absence of employees taking blood donor leave – found none of the considerations set by modern award objectives under the FW Act supported blood donor leave being a necessary part of the minimum safety net – application dismissed. 4 yearly review of modern awards – Blood donor leave
September 22, 2017
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – Full Bench – application for termination of agreement after nominal expiry date – applicant sought further extension of time to file evidence, together with direction that parties’ experts confer prior to hearing – Coles, SDA and AWU resisted potential delay – extension of time not granted – no proper explanation for non-compliance with directions, extension had already been granted and application had been repeatedly delayed largely due to applicant’s interlocutory applications – practicable to vary directions and hearing dates to allow hearing to finish in 2017 – applicant granted liberty to apply for direction that experts confer once Coles’ expert evidence filed – Coles sought confidentiality orders – appropriate to make such orders in relation to some documents, and material or submissions referring to them – unnecessary to grant Coles’ request that anyone who is not a party apply for leave when seeking access – access to files will ordinarily be granted to public in interests of open justice – amended directions issued. Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011
September 22, 2017
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant terminated for unsatisfactory performance – application for relief from unfair dismissal dismissed at first instance – appellant submitted decision at first instance affected by appealable error – appellant submitted Commission erred in failing to properly interpret relevant enterprise agreement and erred in his decision to dismiss the application for relief from unfair dismissal – Full Bench’s powers on appeal only exercisable if there was error on the part of Commission – permission to appeal can only be granted if public interest was enlivened – appellant submitted that relevant enterprise agreement required respondent to provide informal performance counselling prior to termination – appellant submitted Commission erred in not finding this was required – Full Bench not persuaded that appellant’s grounds of appeal raised arguable case of error – Full Bench satisfied Commission took correct approach – public interest not enlivened – permission to appeal refused. Appeal by Dewan against decision of Kovacic DP of 23 June 2017 [[2017] FWC 3383] Re: University of Canberra
