Fair Work Commission

Matter reviewed: [2014] FWCFB 2418

Summary

Hatcher VP, Drake SDP and Cargill C

ENTERPRISE BARGAINING – majority support determination – ss.236, 604 Fair Work Act 2009 – Appeal – Full Bench – employer appealed decision that employee organisation was not restricted to proposing an agreement to cover only employees it represents – found at first instance that AMWU did not have to be bargaining agent for every employee covered by proposed agreement to seek majority support determination – Full Bench found that on ordinary meaning of legislation, AMWU entitled to seek majority support determination if it was bargaining representative for an employee covered by proposed agreement – no requirement to represent all employees covered by proposed agreement

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD492/2015] filed 4 May 2015 to appeal the single Judge decision in [NSD511/2014].

Status

This matter was listed for hearing before a Full Court of the Federal Court on 26 November 2015. Judgment was handed down on 23 December 2015 by a Full Court consisting of Tracey, Jessup and Reeves JJ. The Court ordered that the application is dismissed.

Matter reviewed: [2015] FWCFB 87

Summary

O'Callaghan SDP, Gooley DP and Blair C

CONDITIONS OF EMPLOYMENT – redundancy – ss. 120, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decisions and order of Commission which reduced redundancy entitlement of one respondent to 33% (Powell) and dismissed the application to reduce the redundancy entitlement of another (Togia) – Australian Commercial Catering P/L appealed on the basis that s. 120 of the Fair Work Act 2009 had been misapplied and that the circumstances of the two respondents were virtually identical – majority of Full Bench upheld the decision at first instance that the application regarding Togia be dismissed, as the position offered to that respondent was not acceptable employment and public interest not enlivened – appeal regarding Powell granted, as circumstances were not sufficiently different to those of Togia to justify a different outcome – majority of Full Bench concluded that the position offered to Powell was not acceptable alternative employment – Order quashed – initial application to reduce redundancy entitlement for Powell dismissed – dissenting Member of Full Bench concluded that the redundancy payments to both respondents should be reduced to 33%.

Court Summary

Civil Division of Federal Court of Australia.

Application [VID230/2015] filed 1 May 2015.

Status

In summary, on 30 July 2015 Tracey J ordered that:

• The application be listed for hearing before a Full Court in Melbourne on a date during the sitting period between 2 to 27 November 2015,
• The parties file and serve submissions in accordance with Practice Note APP2, and
• The parties file and serve a list of authorities and legislation in accordance with Practice Note CM 2.

This matter was heard before a Full Court on 19 November 2015. Judgment for this matter was handed down on 22 December 2015 by a Full Court of the Federal Court consisting of Tracey, Barker and Katzmann JJ. Briefly, the Court held that:

• A writ of certiorari be issued to the Commission quashing the Full Bench decision made on 6 March 2015, the order made on the same day and the order made on 10 April 2014
• A writ of mandamus be issued to compel the Commission to exercise its jurisdiction to hear and determine according to law the applicant’s appeal.

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

Application [QUD429/2014] pursuant to section 39B of the Judiciary Act 1903 (Cth), sections 21, 22, 23 and 32 of the Federal Court of Australia Act 1976 (Cth) and sections 562, 563 and 739(5) of the Fair Work Act 2009 (Cth) filed 11 August 2014.

Status

An interlocutory application was filed with the Court on 12 March 2015 which sought to join the CFMEU as an applicant to the proceedings. Justice Collier dismissed the application on 10 April 2015.

The matter was set down for hearing before a single Judge on 10 July 2015.

In summary, on 10 July 2015 Collier J ordered that both the applicant and respondent file and serve further submissions by the 15 and 24 of July respectively.

The judgment of Collier J was handed down for this matter on 4 December 2015. The Court ordered that:

• Leave be granted to further amend the amended originating application filed by the applicant on 27 March 2015, and
• The further amended originating application be dismissed.

Matter reviewed:  [2014] FWCFB 6394

Summary

Hatcher VP, Hamberger SDP and Johns C

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.120, 709 Workplace Relations Act 1996 – appeal against decision – dispute related to decision to discipline appellant by way of demotion and requiring him to be counselled – application first made in January 2008 – previously rejected by Full Bench – appealed to Federal Court where an error was found and matter remitted back to Commission for determination of the question of whether the demotion was reasonable in the circumstances – at first instance Commission held demotion reasonable and proportionate to misconduct of appellant – appeal under s.120(1)(f) must involve jurisdictional error – Linfox considered – Full Bench held that Commission balanced seriousness of misconduct against the consequences of demotion – consideration consistent with decision in Byrne – no jurisdictional error identified – public interest grounds not satisfied – leave to appeal refused.

Court summary

Application [S310/2014] under s 398 of the Judiciary Act filed 18 December 2014 in the High Court of Australia.

Application [NSD184/2015] filed 18 February 2015 in the Federal Court of Australia (referred from the High Court).

Status

On 18 February 2015 Justice Gageler of the High Court ordered:

• Time for filing of the application for an order to show cause be enlarged to 18 December 2014
• The matter be remitted to the NSW Registry of the Federal Court, and
• The matter continue in the Federal Court as if the steps already taken in the matter in the High Court had been taken in that court.

This matter was listed for hearing before a Full Federal Court on 4 August 2015.

On 20 July 2015 Buchanan J ordered that the hearing date listed above be vacated. This matter was withdrawn on 17 November 2015.

Matter reviewed:  [2014] FWCFB 1313

Summary

Justice Ross, Deputy President Gooley, Commissioner Johns

ENTERPRISE AGREEMENTS – approval – ss.181, 604 Fair Work Act 2009 – appeal – Full Bench – union appealed Deputy President’s decision to approve the Teys Australia Beenleigh P/L Production Departments Enterprise Agreement 2013 – argued that 21 employees not covered by agreement – no entitlement to vote on approval – Deputy President erred in interpretation of expression ‘will be covered’ by agreement in s.181 – permission to appeal granted – appeal upheld – decision quashed – matter remitted to Deputy President pursuant to s.607(3)(c).

Court summary

Application [B9/2015] filed 31 March 2015 in the High Court of Australia for special leave to appeal the decision of the Full Court of the Federal Court in [QUD224/2014].

Status

This matter was discontinued on 15 September 2015.

Matter reviewed: [2015] FWCFB 2835 and [2015] FWCFB 644

Summary

Boulton J, Kovacic DP & Bull C

[2015] FWCFB 2835

MODERN AWARDS – 4 yearly review – ss.156, 602 Fair Work Act 2009 – Full Bench – 4 yearly review of modern awards – common issue – transitional provisions – decision not to grant ACTU application to delete sunset provisions in relation to accident pay and district allowance transitional provisions in previous decision – removal of sunset provisions in relation to Broken Hill allowance in previous decision – whether there is an obvious error within meaning of s.602 of FW Act – Full Bench held it had not been demonstrated that any error exists in relation to previous decisions.

Court summary

Fair Work Division of Federal Court of Australia

Originating application [NSD569/2015] seeking relief under s.39B of the Judiciary Act 1903 filed in the Federal Court on 19 May 2015.

Status

This matter was listed for an interlocutory hearing on 9 June 2015 before a single Judge.

On 9 June 2015 Perram J ordered that the application be expedited for a hearing before a Full Court on a date to be fixed during the Full Court and Appellate Sitting period 3 to 25 August 2015.

This matter was heard before a Full Court on 21 August 2015. Judgment for this matter was handed down on 14 September 2015. The Full Court, consisting of North, Buchanan and Flick JJ, held that the application be dismissed.

Matter reviewed: [2015] FWCFB 540

Summary

Watson VP, Gostencnik DP and Spencer C

ENTERPRISE AGREEMENTS - termination of agreement - s.225 Fair Work Act 2009 - Full Bench - application for termination of enterprise agreements - only 12 pressed at hearing - whether agreements with 31 December 2012 nominal expiry date should be terminated - whether termination contrary to public interest - whether appropriate to terminate agreements - Full Bench had regard to change in market position of applicant - agreements imposed considerable restriction, inefficiencies and costs on applicant - considered legacy of provisions and changes sought by applicant and impact on employees - considered current bargaining for new agreements - notion that it will generally be inappropriate to terminate when negotiations on going rejected - applicant gave undertakings regarding conditions of employment - no reason to doubt undertakings genuinely given - not contrary to public interest to terminate the 12 agreements - parties should focus their attention of bargaining for new terms and conditions appropriate for 2015 - agreements terminated as of 18 May 2015.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD246/2015] for relief under s.39B of the Judiciary Act 1903 and s.23 of the Federal Court of Australia Act 1976 filed 28 April 2015. The applicant also claims interlocutory relief that the hearing of this matter be expedited.

Status

This matter was listed for hearing before a Full Court, consisting of Jessup, Tracey and Reeves JJ, of the Federal Court on 21 May 2015. Judgment was handed down on 3 September 2015.

The Court ordered that the application be dismissed.

Matter reviewed: [2014] FWCFB 3491

Summary

Watson VP, Boulton J, Lewin C

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision that Alcoa site did not fall within meaning of the term ‘the employee’s company base’ for purposes of travel allowance clause – Full Bench considered there was sufficient doubt in decision to warrant its reconsideration – permission to appeal granted – clause intended to compensate employees disadvantaged by departure from normal position of travelling to usual place of work – evidence established most of the work by employees was performed at Alcoa premises – clause implied that employee’s company base will be their usual place of work if it can be described as a company base – appeal allowed – findings at first instance substituted with finding at appeal.

Court summary

Application [WAD219/2014] pursuant to section 39B of the Judiciary Act filed 16 July 2014. The applicant is also seeking interlocutory relief.

Status

The matter was listed before a Full Court on 11 November 2014. Judgment was handed down on 28 August 2015.

In summary, the Court ordered that:

• The application be dismissed; and
• Any application for costs be filed and served within 14 days.

Matter reviewed: [2013] FWCFB 1846

Summary

Watson SDP, Hamberger SDP and Cargill C

CASE PROCEDURES – appeals  – ss.604, 611 Fair Work Act 2009  – Full Bench  – costs  – decision concerned application for costs in respect of appeal filed against decision of Commissioner in respect of an unfair dismissal application – Commissioner found no valid reason for dismissal and that it was harsh, unjust and unreasonable ordering reinstatement – decision appealed – Full Bench decided Commissioner was in error failing to find there was a valid reason for dismissal – despite finding error there were no others established by grounds of appeal – applications seeking costs in relation to both proceedings at first instance before Commissioner and in respect of appeal before Full Bench – dismissed for making changes to flight bookings in manner considered to be unauthorized and in breach of fare rules – no evidence that acted in fraudulent or dishonest way in making numerous changes to bookings nor obtained any benefits for providing upgrades to passengers – Commissioner was not satisfied grounds in s.611 were established warranting exercising discretion to award costs – not satisfied any adequate basis had been made out for finding appeal was made either vexatiously or without reasonable cause – not persuaded on objective basis it should have been reasonably apparent that at time appeal was made there were no reasonable prospects of success – not persuaded there was any objective evidence to support submission appeal was strategy to destroy and “bleed him financially and emotionally” – application for costs dismissed.

Court summary

Application [S60/2015] filed 31 March 2015 in the High Court of Australia, seeking special leave to appeal the Full Court of the Federal Court decision in [NSD507/2014].

Status

This matter was listed before a Full Court on 7 August 2015.

Judgment for this matter was handed down in transcript on 7 August 2015. The application was refused with costs.

Matters reviewed:  [2014] FWCFB 5643 and [2014] FWCFB 8589

Summary

Acton SDP, Richards SDP and Simpson C

ENTERPRISE AGREEMENTS – genuinely agree – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – decision in first instance approved the Teys Australia Beenleigh P/L Production Departments Enterprise Agreement 2013 after consideration of whether agreement was genuinely agreed to by the employees covered by it – appellant contends Commission erred by concluding employees fell within coverage of agreement at time of vote and that there was genuine agreement – 21 employees whose substantive roles were covered by the agreement were engaged in various trainee roles and therefore not entitled to vote – outcome may have been different given margin of approval vote – majority of Full Bench determined initial reasoning affected by appealable error – expression 'will be covered' considered [Cimeco] – Full Bench determined work of trainee supervisors not covered by classifications contained in agreement [Brand] – Commission could not have been satisfied the agreement was made in accordance with s.182(1) or that there was genuine agreement – respondent given opportunity to provide undertaking or application will be dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD688/2014] under s. 39B Judiciary Act filed 24 December 2014 seeking relief under s.39B of the Judiciary Act 1903.

Status

On 20 February 2015 Justice Buchanan ordered that the operation of the order made by the Full Bench on 18 September 2014 is stayed until the final hearing and determination by the Court of the application.

The matter was heard by a Full Court, consisting of Jessup, Tracey and Katzmann JJ, on 6 May 2015.

Judgment was handed down on 31 July 2015. The Court ordered that:

• The originating application filed 24 December 2014 and amended 19 February 2015 be dismissed; and
• There be no order as to costs.

Matter reviewed: [2015] FWC 4007

Summary

CASE PROCEDURES – apprehension of bias – ss.137A, 158(1) Fair Work (Registered Organisations) Act 2009 – application by ResMed for recusal of member from Full Bench allocated to hear AMWU rules application and ResMed representation application (applications) on grounds of apprehended bias – ResMed submitted that lay observer might reasonably apprehend that Commission member might not be inclined to depart from views expressed in [2014] FWCFB 3501 (the Decision) regarding the issue of AMWU's existing coverage of ResMed employees when considering that issue in applications – Commission held not sufficient simply that tribunal member may be called on to determine an issue about which an opinion already expressed [Centro Properties Limited (No 2)] – further element must exist, namely that in considering the issue there is a real possibility member will merely adhere to the earlier expression of opinion – Commission not persuaded that specific issues of coverage were live and significant issues, or issues that required determination, in relation to AWU rules application – logical connection not established between the identified opinion expressed in the Decision and the fear that Member might not apply proper merits-based decision-making process [Ebner] – mere expression of an opinion on a question of law will almost never give rise to reasonable apprehension of bias [Helljay Investments P/L] – recusal application rejected in relation to the AMWU rules application – in relation to ResMed representation application, Commission accepted that the extent of the AMWU's existing coverage of ResMed employees likely to be a relevant issue – connection between Decision and ResMed representation application not sufficient to firmly establish a reasonable apprehension of bias – recusal application in relation to ResMed representation application rejected.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD822/2015] filed 16 July 2015 seeking relief under section 39B Judiciary Act 1903, sections 21, 22 and 23 of the Federal Court of Australia Act and sections 562 and 563 of the Fair Work Act.

This proceedings relates to two applications currently awaiting determination in the Commission, D2014/70 and C2015/1008.

Federal Court matter [NSD846/2014], to which this matter also relates, is currently awaiting the determination of the above named matters in the Commission.

Status

This matter was heard before a Full Court of the Federal Court, consisting of Jessup, Buchanan and Wigney JJ, on 12 August 2015.

The Court ordered that the application be dismissed.

Matter reviewed: C2014/1266 [matter stayed pending outcome]

Summary

ENTERPRISE AGREEMENTS - dispute about matter arising under agreement - s.739 Fair Work Act 2009.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD258/2015] which was filed 19 March 2015.

Status

Application C2014/1266, which was lodged with the Commission on 7 July 2014, was stayed pending the outcome of this matter.

The matter was heard before a single Justice on 9 February 2014. The judgment of Justice Buchanan was handed down on 27 February 2015. Centennial Northern Mining Services have now filed a notice of appeal seeking to appeal that decision.

The matter was listed for hearing before a Full Court on 1 June 2015. Judgment for this matter was handed down on 23 July 2015. The Court ordered that the appeal be dismissed.

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

Fair Work Division of Federal Court of Australia

Application [ACD43/2014] under s 39B of the Judiciary Act filed 24 June 2014.

Status

The matter was listed for hearing before a single Judge on 2 July 2015. Judgment was handed down on 21 August 2015.

The Court ordered that the application be dismissed.

Application [ACD81/2015] was filed with the Federal Court seeking to appeal this decision to the Full Court on 4 August 2015.

Matter reviewed:  [2014] FWCFB 9023

Summary

Catanzariti VP, Watson VP, Gostencnik DP and Lee C

ENTERPRISE AGREEMENTS - approval - s.185 Fair Work Act 2009 - application for approval of enterprise agreement - whether agreement was genuinely approved by employees - whether certain 'sessional' employees employed at the time and are to be covered by agreement - whether inclusion of persons who were sessional employees in previous academic year in request to approve agreement results in an agreement not being genuinely agreed to by employees - likely that some sessional employees requested to vote on agreement were not eligible - not fatal - no evidence to establish any persons identified as not eligible to vote actually voted - agreement approved.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID103/2015] under s. 562 of the Fair Work Act and s. 23 of the Federal Court of Australia Act filed 11 March 2015.

Status

Orders were made by Justice Kenny on 28 April 2015 that the hearing of the application be expedited. This matter was heard by a Full Court of the Federal Court, consisting of Jessup, Pagone and White JJ, on 19 May 2015.

Judgment was handed down on 17 July 2015. The Court ordered that:

• A writ of certiorari issue directed to the Commission quashing its approval of the Swinburne University of Technology Academic and General Staff Enterprise Agreement 2014 on 16 December 2014, and
• A writ of mandamus issue directed to the Commission requiring it to determine the first respondent’s application for approval of the Agreement.

Matter reviewed:  [2014] FWCFB 7351

Summary

Acton SDP, Hamilton DP and Lee C

AWARDS – modern awards – Sch. 6, Item 4 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – application to make a modern award to replace an enterprise instrument – the applicant submitted that but for the coverage of the enterprise instrument, 641 of the employees of CSR would be covered by five modern awards, and that 835 employees would not be covered by any modern award – the applicant submitted that some provisions under the modern awards were more beneficial and some were less beneficial – if the Commission did not make an enterprise award CSR would have upfront costs of $300,000-$400,000 and ongoing annual costs of $550,000 – the Commission found these to be short run costs – the Commission was not persuaded to make a modern enterprise award – there would be some short run changes but found that there would quickly be collective bargaining for the making of an enterprise agreement – no detrimental impact on the ongoing viability or competitiveness of the enterprise – no modern enterprise award made – award terminated.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD1374/2014] under s 562 of the Fair Work Act and s 23 of the Federal Court of Australia Act filed 23 December 2014.

Status

The matter was heard before a Full Court, consisting of Jessup, Bromberg and Katzmann JJ, on 8 May 2015. The Court has advised that it has sought the assistance from the NSW Bar Association, which has found counsel to intervene as an amicus curiae in the absence of a contradictor.

On 1 July 2015 the Full Court handed down judgment for this matter. The Court has ordered that:

• A writ of certiorari issue directed to the Commission quashing its decision made on 15 December 2014, and
• A writ of mandamus issue directed to the Commission requiring it to determine the application to make a modern enterprise award.

Matter reviewed: [2014] FWCFB 6737

Summary

Watson SDP, Gostencnik DP and Cribb C

CONDITIONS OF EMPLOYMENT – redundancy – ss.120, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision and orders to reduce redundancy payments on the basis that the employer obtained other acceptable employment – FBIS lost contract for provision of security services – employees subject to the orders were offered and accepted employment with new contractor – grounds of appeal that whether FBIS obtained employment with new contractor, and whether the employment was acceptable – Full Bench found the limited actions of FBIS, which did no more than establish contact between its employees and the new contractor, fell well short of action which ‘causes acceptable alternative employment to become available to the redundant employee’ – the decision at first instance was incorrect and was not open on the evidence given the limited actions of FBIS which reflects a significant error of fact – permission to appeal granted – appeal upheld – decision and orders at first instance quashed.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID691/2014] under s. 562 of the Fair Work Act 2009 and s. 23 of the Federal Court Act 1978 filed 18 November 2014.

Status

This matter was heard before a Full Court, consisting of Jessup, Bromberg and Rangiah JJ, on 10 February 2015.

On 26 June 2015 the Full Court handed down judgment for this matter. The Court ordered that the application is 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

Applications for leave to appeal [NSD671/2015] and [NSD672/2015] filed 10 June 2015, seeking to appeal the interlocutory judgment of Perry J in NSD846/2014 on 29 May 2015.

On 19 June 2015 Jessup J ordered that the applications for leave to appeal are dismissed.

Matter reviewed:  [2014] FWCFB 1973

Summary

Gostencnik DP, Wells DP and Blair C

RIGHT OF ENTRY – application for permit – fit and proper person – ss.512, 513, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision refusing application for entry permit for official – discretionary decision – appellant required to demonstrate appealable error of kind identified in House v The King – appellant also alleged failure to provide adequate reasons – Full Bench satisfied Patrick Stevedores had sufficient interest in matters subject to appeal beyond that of ordinary member of public – granted permission to make submission – issue at heart of appeal concerns correct approach to interpretation and application of permit qualification matters in s.513(1) when read with discretionary power in s.512 to issue permit in light of context in which those provisions appear, Part 3-4 FW Act – starting point is to construe words of statute according to ordinary meaning having regard to context and legislative purpose – words being construed should be read by reference to language of statute as a whole – agreed with and applied principles in JJ Richards decisions to construing provisions at issue – relevant question in determining whether Commission permitted to exercise discretion to issue entry permit is whether official ‘is a fit and proper person to hold an entry permit’ – description ‘fit and proper person’ not defined – taking into account context, seems clear description is to be applied by reference to suitability of the official ‘to hold the entry permit’ – determination of whether official is fit and proper person to hold entry permit involves assessment of effect that existence of any s.513 ‘permit qualification matters’ has on suitability of official to hold entry permit, with all of its attendant rights, conditions, limitations and responsibilities – Delegate correctly set out relevant issue he must determine – correctly identified that in deciding that issue he must take into account s.513 permit qualification matters – Delegate thereafter permitted to assess weight that should attach to such matters but not disregard them – no appealable error in construction and application of s.513 – legal presumption that official was fit and proper person to hold entry permit from time of grating last entry permit displaced because something new has occurred since last assessment was made – no appealable error identified in this regard – having concluded official was not a fit and proper person to hold permit, question of whether to impose conditions on permit did not arise – no appealable error discerned in this regard – Delegate was not asked to consider imposition of condition by appellant – Delegate did not err in not considering imposition of condition – principles governing duty to give adequate reasons summarised in Barach – little foundation in criticisms of Delegate’s reasons – Delegate was entitled to give consideration to official’s position – extent to which that issue ultimately moved Delegate to reach his conclusion a question of weight – proceedings concerning conduct that gave rise to imposition of penalties did not commence until 19 April 2011 – conduct could not have been taken into account in determining whether official should be issued entry permit in December 2010 – no appealable error identified in Delegate’s decision – much of appellant’s criticism really directed to weight given by Delegate to various matters Delegate was required to take into account – Delegate correctly applied relevant provisions – took into account required and relevant matters – conclusion reached open to Delegate on material before him – that Full Bench may have come to different conclusion an insufficient basis to uphold appeal – appeal raised important questions about correct approach to construction and application of ss.512 and 513 FW Act – permission to appeal granted – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID270/2014] under s562 of the Fair Work Act 2009 and s23 of the Federal Court of Australia Act 1976 filed 14 May 2014.

Status

The matter was listed before a Full Court on 2 March 2015. Judgment was handed down by the Full Court of the Federal Court, consisting of North, Flick and Bromberg JJ, on 29 April 2015.

The Court held that the Originating Application filed on 13 May 2014 is dismissed.

Matter reviewed:  [2014] FWCFB 5947

Summary

Hatcher VP, Sams DP and Booth C

RIGHT OF ENTRY – application for permit – ss.512, 513, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against two Delegate decisions to issue permit – grounds for appeal same in both matters – first ground for appeal that Delegate erred in law by not taking into account, under s.513(g) of the FW Act, the history of contraventions of industrial legislation by the CFMEU – second ground for appeal that Delegate erred in law by not imposing a term that the permit holder undertake FWC approved training – Director submitted Delegate should have taken into account the record and reputation of the employer of the proposed permit holder and the capacity or otherwise of the employee to refuse to participate in unlawful conduct – Director submitted that failure to do so caused the exercise of the discretion of the Delegate to miscarry – Director submitted this failure meant a further error in the determination of the conditions to be imposed upon the permit – permission to appeal granted – matter gives rise to important and/or novel legal issues – in public interest that such matters be resolved authoritatively – regard to The Maritime Union of Australia – 'fit and proper person test' necessarily concerned with personal characteristics of person for whom issue of permit is sought – position not altered by fact of organisation applying for person to be issued with permit rather than official personally – matter only required to be taken into account under s.513(g) of the FW Act if Commission considers it relevant – discretionary decision – no error demonstrated in process by which Delegate determined CFMEU's history of contraventions was not relevant to determination – not to say past contraventions by an organisation can never be relevant – however in this case not apparent that CFMEU's contraventions said anything about official's personal conduct – The FW Act provides other remedies for organisation-wide misuse of rights of entry (s.508) – first ground of appeal rejected – power to impose conditions upon permits is discretionary – Delegate took into account s.513(1)(a) by requiring official to undertake new appropriate training – open to Delegate to reject Director's submission that further training extending to other parts of the FW Act be required – no error demonstrated – ss.512-515 of the FW Act not to be used as a blunt instrument to achieve greater compliance with industrial laws generally – second ground of appeal rejected – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD663/2014] under s. 562 of the Fair Work Act, s. 23 of the Federal Court of Australia Act and s. 39B of the Judiciary Act filed 8 December 2014.

Status

A Notice of Discontinuance was filed on 4 May 2015.

Matter reviewed:  [2014] FWCFB 2418

Summary

Hatcher VP, Drake SDP and Cargill C

ENTERPRISE BARGAINING – majority support determination – ss.236, 604 Fair Work Act 2009 – Appeal – Full Bench – employer appealed decision that employee organisation was not restricted to proposing an agreement to cover only employees it represents – found at first instance that AMWU did not have to be bargaining agent for every employee covered by proposed agreement to seek majority support determination – Full Bench found that on ordinary meaning of legislation, AMWU entitled to seek majority support determination if it was bargaining representative for an employee covered by proposed agreement – no requirement to represent all employees covered by proposed agreement

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD511/2014] under 39B of the Judiciary Act filed 23 May 2014.

Status

The matter was heard before a single Judge on 5 August 2014. The judgment of the honourable Justice Perry was handed down on 20 April 2015.

The Court held that:

• The application is dismissed, and
• The question of costs is reserved.

Matter reviewed: [2012] FWAFB 7866

Summary

Boulton SDP, Hamilton DP and Cloghan C

ENTERPRISE AGREEMENTS – fairly chosen – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve single enterprise agreement –agreement covered three employees – coverage of agreement – scope of agreement – operation of exclusion provision – whether group of employees to be covered by agreement was fairly chosen – geographically, operationally and organisationally distinct – whether genuinely agreed to by employees – alleged agreement did not pass better off overall test – not satisfied group of employees was fairly chosen – agreement potentially has application to many employees on many sites – not geographically, operationally and organisationally distinct – undermines collective bargaining – contrary to purpose and policy of the Act – Deputy President fell into error – permission to appeal granted – decision at first instance quashed.

Court summary

Application [P12/2015] for Special Leave to Appeal in the High Court of Australia was filed 20 March 2015. The application seeks to appeal the Full Court of the Federal Court decision in application [WAD81/2014]  and single Judge decision in [WAD411/2012].

Status

The CFMEU filed a notice of discontinuation on 2 April 2015.

Matter reviewed: [2014] FWCFB 714

Summary

Ross J, Booth DP and Bissett C

TERMINATION OF EMPLOYMENT – genuine redundancy – reinstatement – ss.389, 390, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision that employee was unfairly dismissed and orders on remedy – test under s.400 FW Act ‘a stringent one’ [Coal & Allied] – task of assessing whether public interest test is met considered in Makin – Full Bench satisfied it is in public interest to grant permission to appeal – appeal raises novel questions about proper construction of s.389(2) FW Act and whether reinstatement order must specify position to which employee is to be appointed – central issue in contention is whether there must be an identified ‘job’ or ‘position’ to which applicant could have been redeployed in order to enliven s.389(2) – ascertaining meaning of section necessarily begins with ordinary and grammatical meaning of words used – words must be read in context by reference to language of FW Act and legislative purpose – use of past tense directs attention to circumstances which pertained at time person was dismissed – ‘redeployed’ should be given ordinary and natural meaning – meaning of s.389(2) considered extensively in Honeysett – Commission must find, on balance of probabilities, that there was a job or position or other work within employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy dismissed employee – must be an appropriate evidentiary basis for such finding – such interpretation consistent with ordinary and natural meaning of words, Explanatory Memorandum and Full Bench authority – Full Bench identified matters as to which it would ordinarily be expected employer wishing to rely on ‘genuine redundancy’ exclusion to adduce evidence – found Commissioner erroneously focussed on inadequacy of appellant’s redeployment policy – failed to make finding that there was a job, position or other work to which employee could have been redeployed – such finding a necessary step – failure to make finding an error which warrants correction on appeal – Full Bench accepted Commission’s power to order reinstatement is found in s.390(1) FW Act – s.391(1) a limitation upon that power rather than an independent source of power – nature and scope of reinstatement order considered in Sinclair – not persuaded of any relevant distinction between s.170EE IR Act and ss.390 and 391 FW Act – Sinclair remains apposite – Blackadder does not assist appellant – open to Commissioner not to specify particular position and leave it to employer to choose position to comply with order – Full Bench found Commissioner did not make finding that there was no position to which employee could have been redeployed nor was such finding implicit – permission to appeal granted – appeal upheld – decision and orders quashed – matter remitted to McKenna C to determine in accordance with Full Bench decision.

On 16 June 2014 Commissioner McKenna made orders for the reinstatement of Ms Pykett, within 21 days, on terms and conditions no less favourable than those on which she was employed immediately before her dismissal, orders for continuity of employment and compensation for lost remuneration.

Court summary

Application [NSD654/2014] pursuant to section 39B of the Judiciary Act filed 30 June 2014. The applicant is also seeking a stay of the orders of Commissioner McKenna until further order of the Court.

Status

Judgment in relation to the application for a stay was handed down by Perram J on 4 July 2014. The application was dismissed.

The matter was heard before a Full Court, consisting of Buchanan, Perram and Griffiths JJ, on 23 February 2015. Judgment was handed down on 23 March 2015.

On 23 February 2015 the Full Court Ordered that:

• The application stand dismissed,
• Any application for costs be made within 7 days,
• Any response to any application for costs be provided within a further 7 days, and
• Unless the Court requires further assistance, any application for costs be dealt with on the papers.

The Judgment handed down on 23 March 2015 dismissed the first respondent's application for costs.

Matter reviewed:  [2014] FWCFB 6249

Summary

Drake SDP, Hamberger SDP and Johns C

TERMINATION OF EMPLOYMENT – misconduct – ss.394, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against order and decision that termination was harsh, unjust or unreasonable, notwithstanding there was a valid reason for termination – applicant dismissed for breach of the Drugs and Alcohol Policy and Code of Conduct – applicant caused a ferry accident whilst under the influence of marijuana, which had been used for pain relief – Commission found there was a valid reason for termination but that there were mitigating factors, granted the application and ordered reinstatement – Full Bench found that the core issue was the applicant’s deliberate disobedience, as a senior employee, of a significant policy – a lack of impairment, the absence of a link between the drug use and the accident and the absence of substantial damage to the ferry were not relevant to the applicant’s non-compliance with the policy – Full Bench found that the Commission did not address the applicant’s failure to comply with the policy, and that the only mitigating factor relevant to that issue was the reason for the use of the illicit substance – appeal granted – termination not harsh, unjust or unreasonable – decision at first instance quashed.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD1003/2014] under s 39B of the Judiciary Act, ss 562 and 563 of the Fair Work Act 2009 and ss. 21, 22 and 23 of the Federal Court Act 1978 filed 25 August 2014.

Status

This matter was listed for Full Court hearing on 26 February 2015.

Judgment was handed down by Allsop CJ, Siopis and Buchanan JJ on 16 March 2015.

The Court ordered that the application be dismissed.

Matter reviewed :  [2013] FWCFB 1846

Summary

Watson SDP, Hamberger SDP and Cargill C

CASE PROCEDURES – appeals  – ss.604, 611 Fair Work Act 2009  – Full Bench  – costs  – decision concerned application for costs in respect of appeal filed against decision of Commissioner in respect of an unfair dismissal application – Commissioner found no valid reason for dismissal and that it was harsh, unjust and unreasonable ordering reinstatement – decision appealed – Full Bench decided Commissioner was in error failing to find there was a valid reason for dismissal – despite finding error there were no others established by grounds of appeal – applications seeking costs in relation to both proceedings at first instance before Commissioner and in respect of appeal before Full Bench – dismissed for making changes to flight bookings in manner considered to be unauthorized and in breach of fare rules – no evidence that acted in fraudulent or dishonest way in making numerous changes to bookings nor obtained any benefits for providing upgrades to passengers – Commissioner was not satisfied grounds in s.611 were established warranting exercising discretion to award costs – not satisfied any adequate basis had been made out for finding appeal was made either vexatiously or without reasonable cause – not persuaded on objective basis it should have been reasonably apparent that at time appeal was made there were no reasonable prospects of success – not persuaded there was any objective evidence to support submission appeal was strategy to destroy and “bleed him financially and emotionally” – application for costs dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD507/2014] filed 22 May 2014. This matter is an appeal of the single Judge of the Federal Court decision [2014] FCA 428  application [NSD1301/2013].

Status

A Full Court of the Federal Court consisting of Greenwood, Buchanan and Jagot JJ handed down judgment on 5 March 2015. The Court ordered that:

• The appeal be upheld, and
• The orders of the single Judge of the Federal Court be set aside and in lieu thereof it be ordered that:
• The application filed in the Federal Court by the applicants on 8 July 2013 be dismissed.

Matter reviewed: C2014/1266 [matter stayed pending outcome]

Summary

ENTERPRISE AGREEMENTS - dispute about matter arising under agreement - s.739 Fair Work Act 2009.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD870/2014] under s 39B of the Judiciary Act, ss 562 and 563 of the Fair Work Act 2009 and ss 21, 22 and 23 of the Federal Court Act 1978 filed 19 September 2014.

Status

Application C2014/1266, which was lodged with the Commission on 7 July 2014, was stayed pending the outcome of this matter.

The matter was heard before a single Justice on 9 February 2014. The judgment of Justice Buchanan was handed down on 27 February 2015.

The Court ordered that the application be dismissed.

Matter reviewed: [2013] FWCFB 2142

Summary

Harrison SDP, Smith DP and Roberts C

ENTERPRISE AGREEMENTS – Appeal against decision [2012] FWA 9503 of Deputy President McCarthy at Perth on 6 November 2012 in matter number AG2012/1272 – application and coverage clause of enterprise agreement inconsistent with the Fair Work Act 2009 – group of employees not fairly chosen.

Court summary

Fair Work Division of Federal Court of Australia

Application [WAD199/2013] under section 562 and 563 of the FW Act and section 39B of the Judiciary Act filed 19 June 2013.

Listed for a directions hearing on 11 July 2013.

Listed for Directions and Interlocutory Hearing on 16 August 2013

Application for stay order refused 18 September 2013 [2013] FCA 944

Status

Judgment handed down by the Full Court of the Federal Court, Besanko, Buchanan and Barker JJ, on 24 February 2015.

The Court ordered that:

The application be allowed.

• A writ in the nature of certiorari be issued quashing the 11 April 2013 Full Bench decision in the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others v MI&E Holdings Pty Ltd [2013] FWCFB 2142.
• A writ in the nature of mandamus be issued directing the Commission to hear and determine the appeal filed by the respondents on 23 November 2012.

Matter reviewed:  [2014] FWCFB 1313

Summary

Ross J, Gooley DP and Johns C

ENTERPRISE AGREEMENTS – approval – ss.181, 604 Fair Work Act 2009 – appeal – Full Bench – union appealed Deputy President’s decision to approve the Teys Australia Beenleigh P/L Production Departments Enterprise Agreement 2013 – argued that 21 employees not covered by agreement – no entitlement to vote on approval – Deputy President erred in interpretation of expression ‘will be covered’ by agreement in s.181 – permission to appeal granted – appeal upheld – decision quashed – matter remitted to Deputy President pursuant to s.607(3)(c).

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD224/2014] under s39B Judiciary Act 1903 filed 22 May 2014. Cross application [QUD326/2014] filed 23 June 2014.

Status

Judgment was handed down by the Full Court of the Federal Court, Buchanan, Logal and Katzman JJ, on 12 February 2015.

In the matter of [QUD224/2014], the Full Court ordered that the application be dismissed.

In the matter of [QUD326/2014], the Full Court declared that:

• The consequence of the order by Deputy President Gooley on 25 March 2014 is that the Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013 is taken not to have been approved on 27 September 2013 and did not commence operation on 4 October 2013; and
• The Teys Bro (Beenleigh) Pty Ltd/AMIEU Production Departments Enterprise Agreement 2010 did not cease to operate on 4 October 2013.

An application for special leave to appeal was lodged in the High Court on 12 March 2015 by Teys Australia Beenleigh. 

Matter reviewed: [2012] FWAFB 7866

Summary

Boulton SDP, Hamilton DP and Cloghan C

ENTERPRISE AGREEMENTS – fairly chosen – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve single enterprise agreement –agreement covered three employees – coverage of agreement – scope of agreement – operation of exclusion provision – whether group of employees to be covered by agreement was fairly chosen – geographically, operationally and organisationally distinct – whether genuinely agreed to by employees – alleged agreement did not pass better off overall test – not satisfied group of employees was fairly chosen – agreement potentially has application to many employees on many sites – not geographically, operationally and organisationally distinct – undermines collective bargaining – contrary to purpose and policy of the Act – Deputy President fell into error – permission to appeal granted – decision at first instance quashed.

Court summary

Application [WAD411/2012] under section 562 of the FW Act and section 39B of the Judiciary Act filed 19 October 2012.

Listed for directions on 11 February and 25 March 2013.

Status

Judgment handed down on 27 March 2014 by Siopis J. The Court ordered that the decision of the Full Bench dated 13 September 2013 setting aside the decision of a Deputy President of the Commision be quashed.

CFMEU lodged an appeal against the decision of Siopis J [WAD81/2014].  Application [WAD81/2014] was dismissed by a Full Court of the Federal Court, Besanko, Buchanan and Barker JJ, on 24 February 2015.

Matter reviewed: [2014] FWC 7616

Summary

Watson VP

RIGHT OF ENTRY – revocation of permit  – s.512 Fair Work Act 2009  – application to revoke right of entry permit – matter referred to Commission after request from Delegate due to Inquiry on own motion – jurisdictional objection on ground no power under FW Act for Commission in circumstances of Inquiry to decide to revoke permits – Commission power to revoke permits under s.603 FW Act and implied into s.512 FW Act by s.33(3) of Acts Interpretation Act 1901 applied to Inquiry – jurisdiction objection dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID634/2014] under s 39B of the Judiciary Act filed 28 October 2014.

Status

Judgment handed down on 29 January 2015 by Beach J. Beach J dismissed the applicant's originating application and held that the Commission has jurisdiction to proceed with the inquiry into the Victoria No 1 Branch of the Health Services Union's activities.