Employment

Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

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

Smit Lamnalco Towage (Australia) Pty Ltd [2016] FWC 5630

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 2009ss.311312317318.

Lisa Doust appeared for the Maritime Union of Australia

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99

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

McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032

POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant’s unfair dismissal claim – application dismissed

Michael Seck appeared for the Commissioner of Police

Transport Industry General Carriers Contract Determination [2016] NSWIRComm 3

CONTRACT DETERMINATION – application to vary – principles to be applied – relevance of wage fixation principles – fair and reasonable conditions – relevance of consent or non-opposition of respondents – consent to division of proceedings into two stages – first stage to deal with non-rates issues – whether coverage of determination should be extended – whether rescission of another determination should be ordered – whether second determination of continuing practical effect – whether “purpose” clause should be included – whether principal contractors should provide a copy of the determination to each contract carrier engaged – whether a cartage rate schedule should be provided before work commences - whether compensation should be paid for time lost during repainting of vehicle – whether work time should include mandatory short fatigue breaks and time lost due to accident or breakdown – whether principal contractors should be obliged to develop drug and alcohol policies or programs –records to be maintained by principal contractors – whether a deeming clause should be included if records are not kept.

Michael Seck appeared for Mainfreight Distribution Pty Limited

Klazidis v Commissioner of Police [2016] NSWIRComm 1014

UNFAIR DISMISSAL – charge of affray – applicant pleads guilty – sentenced to eighteen months imprisonment with nine months non­parole period – on appeal custodial sentence set aside – bond imposed and no conviction recorded – disciplinary process – allegations of serious misconduct – NSW Police Force Code of Conduct and Ethics – NSW Police Force Statement of Values – four allegations of misconduct found proven – decision to terminate applicant's employment – character evidence – seriousness of the misconduct – factors of aggravation and mitigation – considerations of fairness, reasonableness and harshness – fresh and independent review of the decision – cowardly attack by applicant on victim – applicant walked away as victim lay unconscious on roadway

Michael Seck appeared for the Commissioner of Police.

CPSU, the Community and Public Sector Union [2016] FWC 985

FAIR WORK - Application for consent to alteration of eligibility rules – Fair Work (Registered Organisations) Act 2009 s.158(1)  - Application for alteration of eligibility rulesprivatisation of Home Care Service of NSW – transfer of employees to Australian Unity Home Care Service Pty Ltd – application to continue to cover transferring employees who were previously covered – application granted.

Lisa Doust appeared for the Australian Municipal, Administrative, Clerical and Services Union.

Helensburgh Property Management Pty Ltd v Brady [2016] NSWSC 253

DAMAGES – where the defendant in breach of contract in poaching clients during and after employment with plaintiff – whether plaintiff entitled to damages assessed on basis of diminution in value of rent roll – whether clients would have left the plaintiff irrespective of defendant’s breach – assessment on basis of lost commissions

Richard Parsons appeared for the defendant.

Bridges v Norling trading as Itravel Forster [2016] FCCA 212

COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – collateral attack of administrative act - whether in a general protections court application made pursuant to s.370 of the Fair Work Act 2009 (Cth) (FW Act) the Federal Circuit Court of Australia has jurisdiction to determine whether a certificate issued by the Fair Work Commission (FWC) purportedly pursuant to s.368(3)(a) of the FW Act is valid.

JUDICIAL REVIEW – Whether certificate issued by FWC purportedly pursuant to s.368(3)(a) of the FW Act was validly issued – whether validity of certificate issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the person who claims to have been dismissed applying to the FWC under s.365 of the FW Act within 21 days after the dismissal took effect as required by s.366(1)(a) of the FW Act – whether the applicant was dismissed from her employment – whether such dismissal took effect more than 21 days before the applicant applied to the FWC.

INDUSTRIAL LAW – Contract of employment – whether employer repudiated contract of employment – whether employee accepted the repudiation.

Michael Seck appeared for the successful respondent.

CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 49

EMPLOYMENT LAW - urgent interlocutory relief to address conduct of members of crew of MV “CSL Melbourne” refusing to leave that vessel - employees ordered to immediately and peacefully disembark the CSL Melbourne at the Port of Newcastle

LEGISLATION -  Coastal Trading (Revitalising Australian Shipping) Act 2012(Cth), Fair Work Act 2009 (Cth), ss 19417418421421(2)(b),  Navigation Act 2012 (Cth), s 122, Workplace Relations Act 1996 (Cth), V.Ships Australia Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 MV CSL Melbourne, cl 3.2.4

Michael Seck appeared for the successful applicant.

Australian Municipal, Administrative, Clerical and Services Union v Essential Energy [2015] FWC 8971

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

Helensburgh Property Management Pty Ltd v Brady [2015] NSWSC 1861

CONTRACT – where defendant employed as property manager in real estate agency – where employment agreement included obligations in respect of confidential information – whether defendant in breach in poaching clients, setting up business in competition and misusing confidential information whilst still employed with plaintiff. 
  
RECTIFICATION – where post-employment restraint in original contract of 6 months and 15 kilometres from office – where new contract included different restraint – 12 months in area not including the relevant office - whether mistake – whether agreement should be rectified.

Richard Parsons appeared

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

EMPLOYMENT LAW – termination of employment – summary dismissal – whether employee exhibited signs of intoxication at work training course – whether employee intoxicated in a public place – whether employee intoxicated at a work-related social function – whether intoxication warranted summary dismissal for serious misconduct in serious circumstances

DAMAGES – termination of employment – whether, if summary dismissal not available, employee would have been terminated on notice

Maritime Union of Australia v Skilled Group Limited [2015] FWC 8312

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.

The Australian Maritime Officers' Union [2015] FWC 8003

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.

Parker v Secretary Department of Education and Communities [2015] NSWIRComm 1020

UNFAIR DISMISSAL – Jurisdiction – dismissal – when resignation can be regarded as dismissal for purposes of Act – constructive dismissal – determination of whether a termination was in fact a constructive dismissal to be arrived at by a transactional analysis – ultimatum provided - no negotiations after ultimatum provided – dismissal – jurisdiction lies.

Nixon v Cal Dive International (Australia) Pty Ltd [2015] FCCA 2614

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.

CFMEU v v Port Kembla Coal Terminal Limited [2015] FWCFB 4075

EMPLOYMENT - Appeal against decision  [2015] FWC 2384 - workplace drug testing comprising urine and oral fluid random testing - whether either method of testing establishes impairment - whether implementation unjust or unreasonable - error by Commissioner established - permission to appeal granted - appeal upheld - on reconsideration of dispute implementation of preferred method of random drug testing in circumstances of the employer not unjust or unreasonable.

CFMEU v v Port Kembla Coal Terminal Limited [2015] FWCFB 4075 (19 August 2015)