EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – Unfair Dismissal Claim – whether applicant required to provide undertaking not to pursue in future an application for reinstatement under Workers Compensation legislation – whether refusal by applicant to provide undertaking deprives Commission of jurisdiction.
Renae Kumar represented the Respondent.
Reasons for the decision can be found here.
From the Federal Court of Australia:
INDUSTRIAL LAW – coercion – taking of action against another person – intent to coerce – need for an intent to negate choice – need for a high degree of compulsion
INDUSTRIAL LAW – intention – onus to establish affirmatively that action was not actuated by the reason alleged
INDUSTRIAL LAW – the taking of industrial action
INDUSTRIAL LAW – breach of enterprise agreement
INDUSTRIAL LAW – accessorial liability – knowledge of essential matters which make up offence
INDUSTRIAL LAW – breach of civil penalty provisions
PRACTICE AND PROCEDURE – stay of proceeding pending resolution of criminal proceedings – stay refused – alleged contraventions “not substantially the same”
PRACTICE AND PROCEDURE – Briginshaw standard – need to consider gravity of matters alleged
PRACTICE AND PROCEDURE – withdrawal of an admission in defence – leave granted
Matthew White SC appeared with Michael Rennie for the Applicant.
INDUSTRIAL LAW – quantification of penalties – moral responsibility of a number of respondents – the need for both specific and general deterrence
INDUSTRIAL LAW – detailed co-operation in respect to facts – admission of liability – withholding of any details as to financial circumstances
INDUSTRIAL LAW – an order requiring an audit to be undertaken
Michael Seck appeared for Office of the Fair Work Ombudsman
EMPLOYMENT - Application for an order relating to instruments covering new employer and transferring employees – transferrable instrument – application that transferable instrument will not cover transferring employees – Fair Work Act 2009, ss.311, 312, 317, 318.
Lisa Doust appeared for the Maritime Union of Australia
INDUSTRIAL LAW – Redundancy – Agreement clause requiring recourse to “redeployment and voluntary redundancy” – Whether employer obliged to offer redundancy separation to employees whose positions continued to exist – Agreement clause requiring investigation of “all avenues to avoid forced redundancies, including the reduction of contractors” – Whether confined to contractors engaged on fulltime, permanent, basis – Whether employer had undertaken investigation.
INDUSTRIAL LAW – Obligation to consult where introduction of “change” being considered – Whether change was “major” – Whether introduction of change being “considered” – Potential impact of change on dayworkers – Whether employed on day shift – Whether “a change to the numbers of employees per shift.”
INDUSTRIAL LAW – Adverse action – Dismissed of employee – Whether done because of employee’s position as officer of trade union or his having engaged in industrial activity – Reasons of decisionmaker – Onus of proof – Credibility of witness.
EVIDENCE – Credibility of witnesses – Witnesses’ evidence rejected for reasons which included their failure to refer, in their affidavits, to documents and facts which were unhelpful to their case – Whether they testified that their affidavits were comprehensive – Whether they were given sufficient warning that their omissions might result in the rejection of their evidence.
INDUSTRIAL LAW – Remedies – Reinstatement – Whether available where position previously occupied no longer existed.
Lisa Doust appeared for the Construction, Forestry, Mining and Energy Union
INDUSTRIAL LAW - Termination of protected industrial action notified by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) - order under under s.424 of the Fair Work Act 2009
Lisa Doust appeared for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
INDUSTRIAL LAW - appeal against an interim decision of Commissioner on application by Inco for the approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services (Agreement) pursuant to s.185 of the Fair Work Act 2009
Lisa Doust appeared for the Maritime Union of Australia.
INDUSTRIAL - application under s.512 of the Fair Work Act 2009 (FW Act) - right of entry permit.
Lisa Doust appeared for the Australian Manufacturing Workers’ Union.
INDUSTRIAL - Fair Work Act 2009 s.739 - Application to deal with a dispute - Alleged dispute concerning the placement of employees into a meaningful work placement under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy.
Lisa Doust appeared for the Australian Municipal, Administrative, Clerical and Services Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
INDUSTRIAL - Fair Work Act 2009 s.739 - Application to deal with a dispute - Dispute settlement procedure - interpretation of terms of enterprise agreement and related Award - disputed terms dealing with payment of accrued personal leave when employees made redundant - further contest about redundancy payments in respect of periods of casual employment - whether terms of relevant Award and enterprise agreement obliged payment - surrounding circumstances - no ambiguity found - application granted in part - Parties to consult as to any Order.
Lisa Doust appeared for the Maritime Union of Australia.
INDUSTRIAL - Application for a scope order - application for approval of an enterprise agreement - application for scope order dismissed - challenge to application for approval of enterprise agreement upon grounds of group not fairly chosen and agreement not genuinely agreed - enterprise agreement approved.
Lisa Doust appeared for the Australian Maritime Officers' Union.
INDUSTRIAL LAW – Breach of industrial agreement – Principles regarding construction of industrial agreement – Meaning of consultation in industrial agreements Breach of consultation obligation in industrial agreement – When obligation to consult arises Whether consultation was genuine – Whether consultation was timely – Whether employees given meaningful opportunity to affect a decision – Whether relevant information to enable consultation was required to be provided Breach of obligation to use redeployment and voluntary redundancy before implementing compulsory redundancy – Breach of obligation to investigate all avenues to avoid compulsory redundancy – Breach of obligation to investigate reducing contractors Employment Whether employer took adverse action against employee for a prohibited reason – Sections 340 and 346 of the Fair Work Act 2009 (Cth) – Onus of proof upon an employer in a claim of adverse action – Evidence necessary to discharge the onus under s 361 of the Fair Work Act 2009 (Cth) – Accessorial liability in a claim of adverse action.
INDUSTRIAL LAW – Application pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether applicant has a meritorious case if extension granted – whether applicant has reasonable explanation for delay – whether otherwise appropriate to grant extension – extension granted.
INDUSTRIAL LAW – Underpayments of employees over three legislative regimes, the Workplace Relations Act 1996, the Fair Work Act 2009 (“FW Act”) and the FW Act bridging period from 1 July 2009 to 31 December 2009 – pecuniary penalties – relevant considerations – appropriate approach to quantification of penalty when there is a course of conduct over three legislative regimes – grouping principle.
Scotto v Scala Bros Pty Ltd & Anor (No.2) [2015] FCCA 2167 (13 August 2015)
INDUSTRIAL LAW – Whether failure to give work to casual employee amounted to dismissal from employment.
INDUSTRIAL ACTION - Application for an order that industrial action by employees or employers that is happening, threatened, impending, probable or being organised is to stop, not occur or not be organised - Fair Work Act 2009 s.418.
Patrick Stevedores Holdings Pty Ltd v Maritime Union of Australia [2015] FWC 3587
INDUSTRIAL LAW – Contravention of section 50 of Fair Work Act by an employer – alleged contravention concerns breach of enterprise agreement in respect of compulsory taking annual leave in the form of single days and periods less than a week in duration – alleged contravention also concerns whether settlement procedures arising under the agreement are properly invoked – original decision of this court subject to appeal – application of judgment of the Full Court – matters to be considered.
INDUSTRIAL LAW - Appeal - interpretation of the coverage provisions in two enterprise agreements.
Liability limited by a scheme approved under Professional Standards Legislation.