WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action.
Lisa Doust appeared for the appellants.
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
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.
PRACTICE AND PROCEDURE – summons to produce documents – whether legitimate forensic purpose for summonsing handwritten notes made by a member of the Vocational Training Review Panel during a hearing of a complaint – nature of an external appeal
LEGISLATION: Apprenticeship and Traineeship Act 2001 (NSW), ss 39, 44 , 46, 47, 51(1)(c), 53, 55; Civil and Administrative Tribunal Act 2013 (NSW), ss 29(2)(a), 38, 48, 79
Lisa Doust appeared for the applicants.
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.
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.
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
COSTS – where plaintiff sought prerogative relief with respect to proceedings in NCAT – where proceedings in this Court not pursued – where costs of proceedings to be determined by reference to issues that remain undecided in NCAT– whether plaintiff in this Court would have succeeded in NCAT – where costs should be paid by the defendant whose proceedings in NCAT were likely to fail
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.
CHILD PROTECTION – working with children check clearance – application for administrative review - Children's Guardian decision set aside – working with children check clearance granted
EMPLOYMENT - Appeal against decision  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.
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