0408 802212 david@kiddslaw.com

New Fair Work cases handed down over Dec/Jan break

Amusements, Events and Recreation Award 2010
[2018] FCCA 3692 Creed v Jolong Park P/L (classification – the A’s “role was … to supervise the tour guides who ran the horse tours; … insofar as she was responsible for the horse tours, she had general supervisory duties including ensuring that participants completed the requisite pre-ride training, risk forms and the like; and … to undertake basic administration” @38 – A classified as Grade 5)

Dismissal – Conflict of interest/disloyalty
[2019] FWC 119 Vic Nason v V/Line P/L (Mr Nason suggested to “Mr Kibbis that he and two colleagues work against management as the solution for the lack of shift coverage that Mr Kibbis was complaining about” @26 – by raising his voice during a conversation Mr Nason “behaved in a manner that resulted in Mr McKeown feeling uncomfortable and concerned about the aggression and bullying/yelling down the phone from Mr Nason. Such behaviour can be described as discourteous and disrespectful” @38 – “Mr Nason closed the Coach Booking Office early without authorisation to do so” @68 – valid reason for A’s dismissal found – dismissal not harsh etc)

Dismissal – Criminal convictions / offences / charges
[2018] FWC 7626 Vic Njau v Superior Food Group (“Njau had a criminal record prior to seeking employment with Superior Food Group and … he did not disclose all of his prior convictions to Superior Food Group in connection with his application for employment … Njau’s failure to declare his criminal history to Superior Food Group occurred in circumstances where he had simultaneously consented to the Police Check. In providing his consent, Njau says he understood that his full history of convictions would be disclosed to Superior Food Group” @9 – the failure to disclose was not inadvertent – R did not dismiss A until a year after discovering the failure to disclose and therefore could no longer rely on such as a valid reason – during the hearing a valid reason for dismissal emerged, namely false information on A’s resume when he applied for work with R – therefore R could not reasonably rely on A being honest in his dealings with them – A’s “dismissal was unjust because it proceeded on a basis that was not legitimate, notwithstanding that it later became apparent that there was a valid reason for dismissal” @24 – no compensation or reinstatement ordered)

Dismissal – Discriminatory remarks
[2018] FWC 6914 Qld Kainzinger v Transit Australia Group (the A, a bus driver, was dismissed for telling a passenger to go back to his country – A had previously breached R’s phone use policy and policy regarding a passenger – “the identity of the person who made the compliant through Translink has never been identified but the CCTV footage, and oral evidence proved that the conduct referred to in the anonymous complaint occurred” @93 – dismissal not harsh etc)

Dismissal – Incapacity for employment
[2018] FWC 7461 WA Tito v Pilbara Iron Company (Services) P/L (meaning of being unable to meet the inherent requirements of employment considered – the R dismissed A on the basis of sound medical evidence – dismissal not harsh etc)

Dismissal – Lawful practice, policy, regs etc (not following)
[2019] FWC 26 Vic Walter v ANZ Banking Group Ltd (valid reason for dismissal where A, a financial planner, “consistently either did not have the required paperwork on file prior to actioning advice for a client or did not take an action for a client at the necessary time or made a mistake in actioning the advice. The result of Mr Walter’s delay in switching the funds of four clients was the necessity for the Bank to make up the investment losses of these clients – ($17,153.53). These actions or inactions by Mr Walter were contrary to the requirements of ANZ’s AIM and ANZ’s Code of Conduct and occurred within the highly controlled and regulated financial planning environment. It is noted that Mr Walter’s lack of attention to detail and seeming inability to follow the proper processes occurred over a 12 month period prior to his dismissal and that Mr Walter had been given a written warning in December 2016” @74-75 – A’s failures found not to be intentional or deliberate – dismissal not harsh etc)

Dismissal – Lawful directions (not following)
[2018] FWC 6731 SA Mabior v Rew Bros P/L (the A “engaged in deliberate insubordination on repeated occasions during his shift on 7 July 2018. That conduct was in and of itself a valid reason for dismissal. His position description made it clear that he was required as a term of his employment to ‘follow any reasonable instruction issued by the supervisors or management’” @76 – A also received various warnings for not following instructions and not working safely – dismissal not harsh etc – appeal lodged)

[2018] FWC 4762 Qld Lee v Superior Wood P/L (Mr Lee was given several warnings that his failure to follow the site attendance policy, which involved using a biometric fingerprint scanner, would result in his dismissal – “the collection of the private and sensitive information was for a function or activity that was reasonably necessary. … [Commissioner Hunt] disturbed that none of the organisations, except the IT provider has in place a privacy policy, and … concerned that there was a failure by Superior Wood to issue a collection notice … Mr Lee’s biometric data was not collected, as he did not provide his consent” @215-216 – “It follows that Superior Wood was not exempt from complying with APP 3.3 in collecting its employees sensitive information, and that it could not have collected Mr Lee’s sensitive information in the circumstances where he did not consent to Superior Wood collecting his sensitive information … Superior Wood could not lawfully force Mr Lee to consent to the collection of his sensitive information and to comply with the Site Attendance Policy. It did not do so. It informed him that if his consent was not forthcoming, and he failed to comply with the Site Attendance Policy, dismissal was a likely outcome. It failed to inform Mr Lee pursuant to the Privacy Act of the responsibilities it and other associated entities would meet” @223-225 – “The policy itself is not unlawful, simply the manner in which the employer went about trying to obtain consent may have constituted a breach of the Privacy Act” @233 – Mr Lee’s “objection was unreasonable when taking into consideration the purposes of the Site Attendance Policy, the improvements to payroll and health and safety, and the alternatives that would have been required to have been put in place for him” @245 – valid reason for dismissal – dismissal not harsh etc – appeal lodged)

[2018] FWC 7818 Vic Marcham v FX Services Australia P/L (small business employer – the A’s summary dismissal for refusing to work as directed without giving an explanation not harsh etc)

[2018] FWC 7429 Qld Macklin v BHP Coal P/L (the A, who was on a final written warning, deliberately and intentionally refused a reasonable and lawful instruction from his supervisor to assessor an operator of Downer on a haul truck – he refused to train a contractor – “there [were] more reasons than those included in the show cause letter and the termination letter which formed part of his decision to dismiss” @431 – R’s dismissal was based on A having twice refused a lawful direction, but this was not the case – “Mr McNamara concluded that Mr Macklin had trained and assessed contractor employees on previous occasions. He was of a mistaken belief. If he had taken steps to make inquiries, in light of Mr Macklin’s objections, he would have discovered that he was wrong. It is clear that this formed part of Mr McNamara’s decision making, and formed part of the reasons for the dismissal” @449 – “a reason for the dismissal included Mr McNamara’s disbelief that Mr Macklin had a genuine, mistaken belief for refusing Mr Rivers’ direction, and he had formed a view by no later than 8 June 2018 that Mr West had assisted Mr Macklin in a convenient excuse” @452 – A was not given the opportunity to respond to all of the reasons for his dismissal – “The conversation between Mr Macklin and Mr Rivers was quick, and would not have lasted in longer than two minutes … Mr Macklin did not speak with anybody or have the opportunity to make further inquiries before he promptly refused the direction. Mr Waters had days of opportunity to make inquiries and speak to mine management before undertaking the course of action that he did” @489 – there was no valid reason for dismissal – A reinstated)

Dismissal – Redundancy grievance
[2018] FWC 7524 Vic Kukalev v Prosegur Australia (redundancy was not genuine one in light of lack of consultation – “Of particular significance is the absence of any rationale for the Applicant’s selection for redundancy” @81 – due to such absence, Commission could not be persuaded that consultation would not have negated the outcome – dismissal harsh etc)

Dismissal – Salespeople
[2019] FWC 3 SA Hashemizadeh v RAA Inc. (dismissal of salesperson for misleading and deceptive conduct pertaining to sales not harsh etc)
Dismissal – Theft/misappropriation of funds
[2019] FWC 62 NSW Thomas v MWS P/L (the A taking three bottles of beer that had been left for some time in a putrid esky in full view of another employee and whilst having permission to discard the contents of the esky by Mr Edwards who had not sought to ascertain whether the contents of the esky were valuable not regarded as theft – Mr Edwards did not have “reasonable grounds for his belief that the applicant’s conduct was sufficiently serious to justify his immediate dismissal” @83 – dismissal harsh etc)

Employee (whether)
[2019] FWC 45 Qld Slemint v Australian Leisure and Hospitality Group Pty Limited (an audio technician who performed work for over three years at a hotel when bands played found on balance to be an independent contractor)

Manufacturing & Associated Industries & Occupations Award 2010
[2019] FWC 1 Vic Thomas v Hanseatic Marine Engineering P/L (the A, a senior fitout designer, was covered by the award as he was a Principal Technical Officer – “the principal purpose of Mr Thomas’s position of Senior Fitout Designer was to use his technical design skills, expertise and experience to create manufacturing drawings by interpreting clients’ designs and then to ensure the correct and quality manufacture of the internal fitout. This necessitated Mr Thomas coordinating the work of the Interior Fitout Design team and contractors” @105 – A was not a management employee)

Nurses Award 2010
[2018] FWCFB 7347 4 yearly review of modern awards – Nurses Award 2010 (in charge allowance, leading hand allowance, recall to work when on call, rest breaks between rostered work, meal breaks, rostering and on-call allowances considered – see further decision re recall, free from duty, on call, rest breaks and meal breaks at [2019] FWCFB 121)

Re-opening case
[2018] FWC 7602 SA Gonzalez v Heathgate Resources P/L (the A’s unfair dismissal case was discontinued – Commissioner declined to exercise discretion, to the extent there was one, to re-open – “The delay is lengthy, the explanation for the delay is not convincing and the prospects of success in light of the jurisdictional hurdles faced by the applicant are very low. The statutory scheme also weighs against re-opening discontinued matters in circumstances where an applicant had an opportunity to consider their position prior to discontinuance and take advice on it, but had not done so nor did so for many months after discontinuance” @67)

[2018] SAET 213 Younger v 360 Private Wealth By Design P/L (application by R for interim stay where dispute not simply about employment matters and District Court proceedings were on foot – counsel’s argument that the SAET had no power to grant a stay rejected after consideration of various provisions of the SAET Act – “The Tribunal has specific powers to adjourn proceedings in s 36(2)(e) and power to consolidate or split proceedings in s 38. Importantly in s 39 it may at any time make an order striking out all or part of any proceedings if it considers that the matter or any aspect of it would be more appropriately dealt with by another Tribunal, a Court or any other person. Section 37(1) allows the Tribunal to give directions at any time in any proceedings to whatever is necessary for the speedy and fair conduct of the proceedings. The Tribunal even has power to transfer proceedings before it to another Tribunal or Court if it considers that it would be more appropriate or expeditious for the matter to be dealt with by that Tribunal or Court in s 83A(1). Lastly the Tribunal has power to make rules in s 92 of the Tribunal Act including rules regulating the practice and procedure of the Tribunal and providing for other matters relating to the management, conduct or settlement of proceedings before the Tribunal. In pursuance of that rule making power, r 51(s) permits proceedings to be stayed” @22-23 – “Tribunal does have power to stay proceedings if it is fair and reasonable, if it accords with the speedy and fair conduct of proceedings, is in the interests of the parties and the proper administration of justice” @24 – “It is in neither party’s interest to advance a case before this Tribunal only to find that there is a lack of jurisdiction and then have to embark on another hearing of the same matters in the District Court. The overwhelming proportion of the disputes between the parties are within the jurisdiction of the District Court but the same cannot be said for the South Australian Employment Tribunal” @31-32 – “this is not simply a dispute about employment matters, but also a commercial dispute between a vendor and purchaser of a business” @33 – it has more the character of the latter – application granted)

FWA Cth s50 – Contravening an EA
[2018] FCCA 3792 Australian Rail, Tram and Bus Industry Union v KDR Victoria P/L (the R, a large company with an excellent safety record, committed a single breach of an EA in a misguided attempt to address a safety issue – R’s breach of the EA was due to a misunderstanding of the EA – contrition and remorse lacking – penalty of $15,000 imposed)

FWA Cth s181 – Employers may request employees to approve a proposed EA
[2018] FWCFB 7224 CFMMEU v Noorten P/L (casual employees not working on the day of a vote not considered ‘employees employed at the time’ particularly because of the paucity of evidence “about the nature of, and the terms under which employees were engaged as casual employees by Noorton” @35)

FWA Cth s217 – Variation of EA to remove ambiguity or uncertainty
[2019] FWCFB 161 Bianco Walling P/L v CFMMEU (“As noted in Berri, regard may be had to evidence of surrounding circumstances to assist in determining whether ambiguity exists. However it does not follow that regard must be had to evidence of surrounding circumstances. Recourse to surrounding circumstances in determining whether ambiguity exists depends on the circumstances of each particular case. Here the ordinary meaning of the words in the 2016 Agreement are plainly clear and therefore the Deputy President’s decision not to have recourse to evidence of surrounding circumstances, does not disclose error” @40 – “Ambiguity does not simply arise because there are rival contentions advanced. Particularly in circumstances where a clause is said to have a plain meaning, evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement” @43)

FWA Cth s394(3) – Time issues/exceptional circumstances (another application made)
[2018] FWC 4432 Vic Snyder v Helena College Council Inc. (the A “originally made application to the WAIRC because he believed the College was not a National System Employer. He was also advised by his Union that it was the appropriate forum. However … the only reference to any suggestion about advice having been obtained from the Union is in an email from the Union representative dated 12 February 2018, which was after the time Mr Snyder lodged his application with the WAIRC” @39 – FWC “not satisfied ‘exceptional circumstances’ exist to warrant an extension of time being granted to Mr Snyder in which to make application. It is acknowledged that he made application to the WAIRC on the basis of a mistaken belief that it was the appropriate jurisdiction in which to pursue his unfair dismissal claim. However … he should have been alerted to the fact he may have made application in the wrong jurisdiction when the jurisdictional objection was made to his application by the College on 9 March of this year. However, he decided to let that process play out, and only made the present application when the processes before the State Commission had been exhausted. It also appears that nothing prevented him from making application to the Fair Work Commission at any time, including immediately after 10 March of this year” @49 – appeal dismissed in [2018] FWCFB 4734)

FWA Cth s394(3) – Time issues/exceptional circumstances (electronic lodgement – difficulties with)
[2017] FWC 3890 Vic Dawson v Virgin Australia Airlines (the A waited till the last day of the 21 day period to lodge – while the FWC accepted A “did attempt to file her application on 10 May 2017 four times, that she could not do so cannot, without doubt, be attributed to problems with the Commission’s computer systems. System problems may have been caused by Ms Dawson’s computer settings or internet access” @28 – “There is no indication that, having failed to get her application through on the first or second attempt on 10 May 2017 Ms Dawson took any steps to either alert the Commission to the problems she was having or contact the Commission in any way until the following day” @29 – “Computer failure is not an unusual circumstance. It is one of those things that inevitably occur at the most inopportune time. There was no reason Ms Dawson could not have made her application sooner. No adequate explanation for the delay in making her application was given to the Commission” @36 – extension denied – compare Jacks v Hindley & Associates [2018] FWC 7741 where application two minutes late due to A waiting till last minute for resolution of FCCA proceedings – “It is not unreasonable to delay undertaking the preparation of an application if the application is unlikely to be necessary or possible” @33 – Mr Jacks had provided a satisfactory explanation for delaying the preparation and filing of his application until the last minute – Ms Dawson had provided no such explanation – he experienced unexpected connectivity issues and made efforts to use a different internet connection – “There is no evidence that Mr Jacks had reason to believe that he would not be able to file the Application electronically before the 21 day deadline” @34 – Dawson distinguished and extension granted)

FWA Cth s394(3) – Time issues/exceptional circumstances (fear of negative reaction/reprisal)
[2018] FWC 7384 Qld Tindal v Eggers & Eggers (the A claimed she lodged late due to fear of a violent confrontation with Mr and Mrs Eggers – they lived in a small community – A lodged application after moving to WA – Commission accepted A had some fear, but did not consider the possibility of violence was sufficiently credible to justify the delay in making the application – extension denied)

FWA Cth s394(3) – Time issues/exceptional circumstances (mistakes)
[2018] FWC 7651 NSW Cannon v Quad Services (“Essentially, the Applicant’s reason for delay is confusion as between Fair Work Direct, the Fair Work Ombudsman and the Fair Work Commission” @15 – “it can be confusing when government agencies have similar names and, further, when private providers pass themselves off as, or have a similar name as, a government agency in an attempt to improve their chances of obtaining clients when recently dismissed employees ‘Google’ phrases such as ‘unfair dismissal’ or the like … However, that confusion is not out of the ordinary course, or unusual or special. Rather it is, unfortunately, regularly, or routinely or normally encountered. Just as ignorance of the timeframe for lodgment is not an exceptional circumstance, neither is a lack of awareness about which agency an application is to be made to. Being the victim of a private provider which uses a similar sounding name to that of the government agency or uses Google Ad-words to increase the ‘hits’ they receive from a Google search is not exceptional circumstance” @19-20)
[2018] FWC 7351 NSW Liu v Ivory Group Pty Ltd & Dicker Data Limited (“Mr Liu intended to amend his application rather than withdraw it, notwithstanding the First application was made on the incorrect application form. … Mr Liu has a credible reason for the delay in lodging the present application” @11 – extension refused however as A’s case had little merit)
FWA Cth s394(3) – Time issues/exceptional circumstances (prejudice)
[2019] FWC 25 Qld Tamu v Australia for UNHCR (“The expression ‘prejudice to the employer (including prejudice caused by the delay) ’does not limit the circumstances that the Commission may take into account in determining any prejudice to the employer. Indeed, specific delineation of ‘including prejudice caused by the delay’ implies that there are circumstances other than prejudice caused by the delay in filing, that the Commission may take into account. In circumstances where the Applicant has made three appeals (on preliminary procedural matters) requiring additional responses to such by the Respondent, the Respondent has been burdened with the additional responses and attendances on such. This is relevant in the current circumstances where the merits of the case do not favour granting an extension and the material does not demonstrate prima facie contraventions or general protections infringements” @65-66)

FWA Cth s394(3) – Time issues/exceptional circumstances (relying on others to lodge applications)
[2018] FWC 7619 Vic Armanasco v Golden Phan Chinese Restaurant and Seafood Takeaway (“in entrusting the filing to another person, it is regularly, or routinely, or normally encountered that the person so entrusted does not do what has been asked of them. In short, the Applicant should not have relied upon her mother to file the application for her” @16 – no extension granted)

FWA Cth s394(3) – Time issues/exceptional circumstances (representatives – issue with legal)
[2018] FWC 6745 Qld Rhind v Ozcare (“Ms Rhind’s representative Ms Roche stated to Ms Rhind that she had 21 days from the date of receipt of the notice (not including the date of receipt) and that the date for lodging the application was 17 August 2018. That advice was incorrect. However in circumstances where Ms Rhind had relied on her Union to represent her interests I do not accept that the fact that Ms Rhind did not double check the calculation of the date that she was provided by Ms Roche overcomes the impact of what is a clear representative error. … [W]hile this miscalculation is a clear representative error, the extent of the miscalculation is not immediately apparent given that the error is a miscalculation of one day. Neither do I accept the submission made by Ozcare that a conscientious applicant would have checked the date and that this should weigh against a finding that the representative error was an exceptional circumstance. It is also the case that Ms Rhind took all steps that were required of her to provide information to the QNMU, to enable the application to be filed” @20 – extension granted)
[2019] FWC 48 Vic Bagheri v YBF P/L (the A “acted promptly following his termination, and on the following day sought advice from his legal representatives. An approach and strategy was agreed to at that time. It involved his legal representatives firstly approaching YBF with the intention of seeking to have Mr Bagheri reinstated. This strategy was initially pursued because reinstatement was of particular importance to him, given it was critical to his application for permanent residency in Australia. However, his instructions also made clear that if reinstatement was not agreed to then an unfair dismissal application was to be lodged on his behalf. Mr Bagheri’s circumstances were then complicated by the fact he had a long-standing overseas trip booked, and he left Australia on 31 August 2018. However, the evidence also indicates that he was monitoring emails and other communications while he was away, and after being contacted by his legal representatives he responded on 17 September and confirmed his instructions for an unfair dismissal application to be lodged on his behalf. However, this application was not lodged until 19 September, primarily due to the mistaken belief by his legal representatives that this date was still within the 21 day period following his termination” @37-38 – “it was not Mr Bagheri’s lack of understanding about the statutory time limit that led to the [one day] delay in lodging. It was instead the mistaken belief by his legal representative about the date on which the 21 day period concluded” @46 – extension granted)

FWA Cth s401 – Costs order against lawyers and paid agents
[2018] FWC 7088 WA Noiszewski & Smith v Prosegur Australia P/L (Mr Ferguson was not a lawyer, but he was not involved in a voluntary capacity to represent the applicants – “Rather … the two employees who were the applicants in the respective unfair dismissal remedy applications were members of the association TransportEdge Inc and as such each paid membership fees which entitled them each to representation; which in fact was provided by Mr Ferguson” @120 – “The fact that the payment arrangement may not have been directly between each applicant and Mr Ferguson does not mean he was not their paid agent … It is apparent that at all times Mr Ferguson portrayed himself as their paid agent” @122 – “Mr Ferguson was the paid agent of Mr Noiszewski and Mr Smith and he was their representative as that term is used in section 401(1)(b)” @127)

FWA Cth s545 – Orders that can be made by particular courts
[2018] FWC 5692 Qld Roos, Roos & Dargan v Winnaa (non-economic loss cases reviewed – “The following cases are illustrative of what could be considered as the upper end of the scale regarding compensation for non-economic loss in an employment law context: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 concerned an award of damages for non-economic loss for sexual harassment of an employee. The applicant suffered chronic adjustment disorder with mixed features of anxiety and depression as a result of the incident. It was found by the Full Court on appeal, that an award of $18,000 was adequate in the circumstances. In TWU v Atkins [2014] FCCA 1553, an award of $10,000 compensation for non-economic loss was made in circumstances where the respondent had continued to threaten the applicant with violence and harass the applicant outside of the work environment. In that case, the court was so concerned by the respondent’s behaviour that he was ordered to undertake counselling in relation to his behaviour. Mortimer J in Dalfallah v Fair Work Commission [2014] FCA 328 found that while the Applicant had suffered ‘tangible emotional upset’ both in regards to the dismissal and the warning processes that preceded, there was no evidence of psychological damage or treatment, and an award of $3,000 for non-economic loss was made” @99-100 – in the case at hand “none of the Applicants … have submitted medical evidence of psychological assessment, recognised injury or treatment … Nor does it appear that there were aggravating circumstances personal to any of the Applicants, such as threats of violence or harassment, caused by the dismissal or occurring as a result of the dismissal” @101 – “the emotional loss suffered by each Applicant, in being denied what they described as rewarding work on Country for an organisation, membership and community whose goals aligned with their own, went beyond the usual level of distress accompanying most terminations. In the circumstances …an amount of $5,000 for non-economic loss should be awarded to each Applicant” @104 – appeal allowed in [2018] FWCFB 7394 in one respect – “the Commissioner’s approach in deducting 25% for contingencies was attended by appealable error, … this error caused an injustice to the appellants and raises questions of broader principle” @35 – “the so-called ‘standard’ deduction of 15% for contingencies was applied to past rather than future economic loss. There was no proper basis to make this deduction at all, since any matters detrimentally affecting the appellants’ earning capacity over the relevant 20 week period of putative further employment could have been, but were not, the subject of evidence. In short, there was no basis to conclude that there was anything which had affected the appellants’ earning capacity over that part period Second, the Commissioner added another 10% to the deduction because of the possibility of termination prior to 29 April 2017, in circumstances where he had already formed an estimate that the employment would have continued only for another 20 weeks but for the dismissals. In effect, the Commissioner took into account in assessing compensation the hypothetical duration of further employment twice – once through the 20 weeks’ estimate, and the second time through the 10% deduction. This error is compounded by the fact the deduction of 10% was expressed as taking into account termination at any time prior to 29 April 2017, when the Commissioner had already determined that the employment would not have lasted beyond the end of 2016” @39-40 – A’s compensation increased)

FWA Cth s550 – Involvement in contravention treated … as actual contravention
[2019] FCCA 25 FWO v Lovely Care P/L & Anor (“it was never put to Ms Bonilla that she had been aware of the Modern Award or its requirements. The Ombudsman submitted that it was sufficient for the evidence to demonstrate circumstantially or inferentially actual knowledge on Ms Bonilla’s part, as was the case in Fair Work Ombudsman v Devine Marine Group, but the facts of this case are distinguishable … and do not … point to Ms Bonilla having had any particular awareness of the Modern Award having superseded the SACS NAPSA” @128 – therefore Ms Bonilla did not have “knowledge of the Modern Award which Potter v Fair Work Ombudsman requires in order that she might be held liable as an accessory to Lovely Care’s contraventions of the FW Act” @128)

FWA Cth s586 – Correcting & amending applications & documents etc
[2018] FWC 5643 ACT Sinden v HDR Inc. (the A brought her application against the international HDR company rather than the local HDR company and sought to amend – various cases where application to amend name of R considered – R “submitted that the facts and circumstances in this case demonstrated that, at the time of preparing her general protections application, Ms Sinden was aware of the legal identity of her employer but consciously elected to commence proceedings against another entity that was not within jurisdiction. The Respondent contended that Ms Sinden did so deliberately to elevate the matter to the parent company in the United States and to Mr Manhart with the belief that doing so would be of some strategic benefit to her in the proceedings. Beyond that, the Respondent submitted that if Ms Sinden’s application were amended as sought that the proposed respondent, HDR Pty Limited, would suffer prejudice as it would be subjected to having proceedings commenced against it more than four months after legally terminating Ms Sinden’s employment” @13 – Commission refused application to amend considering on the facts “it implausible that she made an error in identifying HDR Inc. as the Respondent” @28 – appeal allowed in [2018] FWCFB 6934 – “the Deputy President evidently proceeded on the premise that Ms Sinden’s amendment application sought to substitute as respondent HDR Pty Limited, an Australian corporation, for HDR Inc., an American corporation. That approach disregarded the full description of the respondent in Ms Sinden’s s 365 application as filed … The Deputy President did not take into account the ABN/ACN or the trading name, but simply assumed that the name of the entity given necessarily identified it as the American corporation. There was no proper basis to take this approach … Accordingly the Deputy President erroneously mischaracterised the nature of the amendment application, which in truth only sought to align the respondent’s name with the ABN/ACN already given” @13 – “the Deputy President failed to have regard to the requirements of ss 577(b) and 578(b) … and, with respect, prioritised legal forms and technicalities over equity, good conscience and the merits of the matter” @16 – the Deputy President also erred in finding prejudice and in other respects – “the s 365 application should be amended to substitute ‘HDR Pty Limited’ for ‘HDR Inc.’ as the name of the respondent” @20)

FWA Cth s594 – Confidential evidence
[2018] FWCFB 7501 AWU v Oji Foodservice Packaging Solutions (Aus) P/L (the Full Bench rejected “the proposition that s.594 provides the requisite power for an order to redact wage rates from an enterprise agreement that has been approved by the Commission, for the purpose of publication under s.601(4)(b). Indeed … it is not open to the Commission to make an order under s.594(1)(c) prohibiting or restricting publication of any material (including wage rates) that forms part of an approved enterprise agreement” @73)

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