Fair Work Commission

Matter reviewed: [2013] FWCFB 453

Summary

Watson VP, Watson SDP and Gooley C

INDUSTRIAL ACTION – order against industrial action – procedural fairness – ss.418, 604 Fair Work Act 2009 – appeal – Full Bench – applications for permission to appeal by unions – appealing decision and orders for cessation of industrial action occurring on site at Queensland Children's Hospital Project (QCH Project) – QCH Project had significant disruptions from industrial action – tribunal ordered that industrial action on the site stop – subsequent disputes arose – tribunal arbitrated and subsequently issued stop orders – appeal lodged by unions alleging lack of procedural fairness, inter alia – grounds of appeal included duty to observe natural justice, admission of hearsay evidence, lack of jurisdiction to make order, uncertainty of order and wording of order – permission to appeal granted – Full Bench found tribunal did not deny unions procedural fairness – hearsay evidence given limited weight in circumstances – matter of contention whether non-attendance was due to health and safety concerns or industrial action – despite doubt over action of members and eligible members there was evidence that unions were involved in industrial action – conduct fell within description of organising industrial action – wording of order unexceptional – unions did not have standing to challenge wording on behalf of non-members – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD87/2013] under section 562 of the FW Act and section 39B of the Judiciary Act filed 15 February 2013.

Listed for directions on 27 March 2013. Callover 17 April 2013.

Listed for hearing by Full Federal Court on 19 August 2013.

Status

Buchanan, Katzman and Rangiah JJ handed down their judgment on 6 December 2013. The Full Court ordered that:

• A writ of certiorari issue to the Fair Work Commission removing into this Court the order made at Brisbane on 5 September 2012 in C2012/5149 recorded in PR528753 and quashing orders 3.2, 3.4 and 6.1 insofar as they apply to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union ("CEPU") and order 6.2.
• A writ of certiorari issue to the Fair Work Commission removing into this Court the order made at Sydney on 25 January 2013 in decision [2013] FWCFB 453 insofar as it dismisses the CEPU's appeal and quashing that order.
• A writ of prohibition issue to the Fair Work Commissioner prohibiting it from proceeding further on the decision and order made at Brisbane on 5 September 2012 in C2012/5149 insofar as it relates to the CEPU, its officers and members.

Matter reviewed: [2012] FWAFB 7097

Summary

Boulton J, Harrison SDP and Deegan C

TERMINATION OF EMPLOYMENT – misconduct – conduct outside working hours – social media – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – decision held applicant not guilty of serious misconduct arising from comments made on Facebook – consequent finding termination of applicant was harsh, unjust and unreasonable – whether Tribunal relied on irrelevant considerations as mitigating applicant’s culpability – whether insufficient consideration given to relevant facts – whether undue emphasis placed on purported right to free speech – conclusion reached at first instance was reasonably open – no error of House v King variety – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD1623/2012] under section 562 of the FW Act and section 39B of the Judiciary Act filed 19 October 2012.

Listed for hearing on 13 November 2012.

Listed for directions hearing on 6 February 2013. Listed for hearing on 6th and 7th May 2013.

Status

Judgment handed down on 13 December 2013 by Dowsett, Flick and Griffiths JJ. The Full Court found no error by the Fair Work Commission.

Admin File Number: ADM/12/630

Matter reviewed: [2012] FWAFB 8958

Summary

Drake SDP, Harrison DP, Gooley C

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – wages – allowances – ss.604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision pursuant to dispute resolution procedure – decision concerned correct rate of pay during overtime meal breaks – satisfied original decision in error – satisfied original decision failed to give sufficient consideration to text of agreement – satisfied proper construction of agreement required payment at overtime rates – appeal allowed – original decision quashed.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD/1918/2012] under section 562 of the FW Act and section 39B of the Judiciary Act filed 12 March 2013.

Listed for first directions on 8 February 2012

Listed for a directions hearing on 15 February 2013 before Rares J. Listed for hearing in Sydney on 21 June 2013.

Order handed down 21 June 2013 - Application dismissed

JURISDICTION – where enterprise agreement provided expressly for private arbitration and appeal – meaning of agreement that arbitrator's decision on appeal be "binding" – whether any right to judicial review of decision given by a Full Bench of Fair Work Commission as private arbitrator in an appeal – whether absence of "final and" allowed right of judicial review of private arbitration decision – whether Full Bench of Fair Work Commission had made a decision contrary to s 739(5) of the Fair Work Act 2009 (Cth) thereby giving the Federal Court jurisdiction to grant constitutional writ relief

Held: enterprise agreement expressly adopted dispute resolution mechanism of private arbitration with a specific right of appeal, the decision in which was to be final. Consequently, Full Bench, acting as a private arbitrator, had power to decide finally questions of fact and law.

Status

Closed.

Admin File Number: ADM/13/175

Matter reviewed: [2012] FWAFB 9830

Summary

Acton SDP, Hamberger SDP, Bissett C

TERMINATION OF EMPLOYMENT – extension of time – s.604 Fair Work Act 2009 – appeal – Full Bench – appealing decision in transcript refusing extension of time for making application for unfair dismissal remedy – appellant alleged there were differences in decision in transcript and subsequent order, appellant unaware of member who was hearing matter prior to day of hearing and Commissioner erred in finding about the merits of applicant and in failing to find reason for delay in making application was an exceptional circumstance – Full Bench found differences in wording of decision in transcript and later order reflect appropriate editing of ex tempore decision – do not constitute appealable error – transcript and order not materially different – appellant did not establish that content of notifications from FWA and being unaware of member hearing matter was a denial of procedural fairness or other appealable error – Commissioner failing to find reason for delay in making application constituted exceptional circumstances was not an error – not in the public interest to grant appeal – none of grounds raised for appeal establish appealable error – not persuaded to grant permission to appeal in matter – order issued.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID1081/2012] under section 562 of the FW Act and section 39B of the Judiciary Act filed 12 March 2013.

Listed for hearing 26 April 2013.

Judgement 3 May 2013 - application dismissed [2013] FCA 394

ADMINISTRATIVE LAW – Application for relief pursuant to s 39B of Judiciary Act 1903 (Cth) where challenge to certain orders and decisions of Fair Work Commission – consideration of grounds relied upon by applicant in respect of nominated decisions – whether proper basis established for an allegation of reviewable error.

Status

Closed.

Admin File Number: ADM/12/565

Matter reviewed: [2012] FWAFB 6511

Summary

Watson VP, Hamberger SDP and Simpson C

TERMINATION OF EMPLOYMENT – extension of time – appeal – Full Bench –s.604, 394 Fair Work Act 2009 – appeal against refusal to extend time – matter previously determined and appealed to Federal Court of Australia – remitted to new Full Bench by Court – first instance findings expressed in just two sentences – clearer findings could have been made – nonetheless, cannot conclude reasons were inadequate – though brief, reasons sufficient to disclose steps which led to result – publishing further reasons unlikely to lead to different result – finding of valid reason for termination applied correct test – submission that hearing not conducted in fair and just manner rejected – appellant assisted in conduct of his case and had material prepared by solicitor – no error established – permission to appeal refused – appeal dismissed.

Court summary

INDUSTRIAL LAW – dismissal of employee – remedy sought in respect to unfair dismissal - permission to be represented by a lawyer – no consideration as to whether permission should be granted – absence of a fair and just hearing.

PRACTICE AND PROCEDURE – identification of decision-maker – statutory authority – order for substitution

Judgment 4 April 2013 - orders made by Full Bench on 5 June 2012 should be quashed and matter should be reconsidered - applicant to bring proposed short minutes or ofers within 14 days.

Order amending name of First Respondent 10 April 2013.

Order 3 May 2013 quashing the orders and decision of Fair Work Australia made on 5 June 2012: [2013] FCA 402

Status

Closed.

Admin File Number: PF/12/2

Matter reviewed: [2012] FWAFB 207

Summary

Watson VP, Sams DP and Harrison C

ENTERPRISE AGREEMENTS – approval – ss.182, 185, 586, 604, 793, 794 Fair Work Act 2009 – appeal – Full Bench – whether agreements approved had been signed in accordance with rules of CFMEU and with Act – appellant contended signatory could not have been authorised to sign agreement because elemental precondition for authorisation not satisfied – agreement could not be made with one Division of the CFMEU due to prospect that members of other Division might be recruited to perform duties under agreement's classifications – appellant argued rules of CFMEU for reallocating members across Divisions not able to remedy defect and that authorisation had to be exercised on basis of membership at time of Agreement – thus contended no valid approval application – other parties argued signatory not relevant as CFEU had at all times intended to make and abide by agreement – decision at first instance found prospect of employment of other Division's members only hypothetical and CFMEU acted reasonably on face of information and materials before it – signatory properly authorised – appeal – rules must be given sensible and practical construction, not a narrow one – relevant rule is directed to enabling efficient approval of agreements – submission that relevant rules have no application to greenfields agreements or only where employees engaged under agreement overly narrow and rejected – clear from nature of project and scope of agreement that signatory's Divisional Branch was only appropriate Branch and thus signatory was authorised to sign agreement – s.793 of Act operates to validate acts if necessary – no basis established for granting permission to appeal – contentions of appeal are not matters of public interest – nor is appeal sufficiently arguable – agreements validly made by CFMEU and validly approved at first instance – permission to appeal denied – application dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD178/2012] under section 39B of the Judiciary Act 1903 and sections 21, 22 and 23 of the Federal Court Act 1976 and sections 562 and 563 of FW Act filed 9 March 2012.

Listed for directions 15 March 2012 and 22 March 2012; administrative hearing before Registrar Baldwin 18 April 2012; listed for Full Court hearing [Dousett, McKerracher & Katzmann, JJ] 9 August 2012; judgment reserved.

Application dismissed 29 January 2013.

Third, fourth and fifth respondents seeking costs. Application for costs dismissed 1 March 2013

Status

Closed.

Admin File Number:    ADM/12/470

Matter reviewed: [2012] FWAFB 6302

Summary

3 October 2012: Drake SDP, McCarthy DP and Roberts C

ENTERPRISE AGREEMENTS – greenfields agreement – pre–approval requirements – ss.172, 185, 604 Fair Work Act 2009 – appeal – Full Bench – greenfields agreement approved at first instance – appeal contends decision flawed due to absence of all relevant material – contended agreement did not meet necessary statutory criteria – compelling public interest issue in ensuring Tribunal has all relevant material before it – satisfied no overt conduct to exclude appellant – no positive obligation upon parties to greenfields application to bring matter to attention of appellant – question of whether the relevant enterprises were greenfields sites – satisfied on the evidence that requirements of statute met – leave to appeal granted – substantive appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application under section 562 of the FW Act and section 39B of the Judiciary Act filed 19 October 2012.

Listed for hearing on 30 November 2012. Listed for directions hearing 7 December 2012 - Listed for hearing on 4 February 2013 before Rares J.

Application dismissed.

Status

Closed.

Admin File Number:    ADM/12/239

Matter reviewed: [2012] FWAFB 4810

Summary

22 June 2012: Watson VP, Hamilton DP and Simpson C

TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – appeal against decision in unfair dismissal proceedings which ordered reinstatement after finding valid reason for the dismissal but nonetheless concluding that dismissal was harsh – applicant involved in physical altercation with another employee – altercation captured by CCTV cameras – both employees terminated for misconduct – Tribunal erred in failing to find that the gravity of the misconduct outweighed all other factors – insufficient weight given to seriousness of conduct – failed to take account of employer's need to establish and enforce policies about fighting – respondent's conduct high on scale of seriousness – history of conflict did not excuse conduct – discretion miscarried – appeal allowed – decision quashed.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD1109/2012] under section 39B of the Judiciary Act 1903 and sections 21, 22 and 23 of the Federal Court Act 1976 and sections 562 and 563 of the Fair Work Act filed 7 August 2012.

Listed for directions 20 August 2012.

Minutes of Order were issued by the Court which set down this matter for hearing on 3 December 2012.

Status

Judgment handed down by Katzmann J on 10 January 2013. The application was remitted to the Fair Work Commission to determine afresh.