Dispute settlement, warnings and more – considered by FWC

Cases

Dispute settlement, warnings and more – considered by FWC

Many issues relating to agreements come before the Fair Work Commission. Some recently litigated matters to come before the commission related to: dispute settlement provisions; justified warnings, whether employees have been fairly chosen for agreement coverage; medical appointments organised by the employer; and the meaning of “day” and “shift”.

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Many issues relating to agreements come before the Fair Work Commission. Some recently litigated matters related to: dispute settlement provisions; justified warnings; whether employees have been fairly chosen for agreement coverage;  medical appointments organised by the employer; and the meaning of “day” and “shift”.

Dispute settlement clause – a matter for agreement


An objection by an employer about the exercise of commission power in relation to workload issues was resolved in favour of the employer.

The agreement-provided commission arbitration related to workload management issues may only occur by agreement of all parties. The employer did not agree or consent to arbitration.

The FWC (Booth DP) ruled that it was patently clear from the wording that the agreement did not provide for the commission to arbitrate in relation to dispute about workloads other than with the consent of both parties.

The tribunal voted that an enterprise agreement must contain a procedure for settling disputes but the terms of the procedure are defined by the agreement – see Woolworths.

G v United Protestant Association of NSW Ltd t/a UPA [2014] FWC 5634 (20 August 2014) 


Warning over discarding lit cigarette justified


A written warning was issued to a driver for discarding a lit cigarette from his truck while driving. The tribunal noted that the discarding of the cigarette created a fire hazard and was a breach of law.

The union challenged the warning on the basis that the alleged conduct did not occur, but the commission was not persuaded. The commission (Hatcher VP) reached the conclusion that the conduct occurred was sufficient to justify the issue of a warning letter.

Transport Workers' Union of Australia v Linfox Australia P/L [2014] FWC 5656 (22 August 2014) 


“Fairly chosen” for agreement coverage should be explained


There was no geographic connection and it was unclear as to why sites were treated differently. The employer did not explain how agreement was operationally distinct. After consideration of all the relevant circumstances the commission (Ryan C) was not satisfied that employees were fairly chosen.

OneSteel Recycling P/L t/a OneSteel Recycling [2014] FWC 5783 (21 August 2014) 


Employer can choose doctor and require medical appointments


The employee in issue suffered from asthma – and had previously arranged for the Asthma Foundation to attend the workplace to give a presentation and deliver training regarding the issues and triggers related to asthma in the workplace. Despite the presentation and training, the employee continued to suffer health issues as a result of triggers in the workplace.

The employer asked the employee to obtain further information from her treating physician. The employee provided the requested information and was allowed to return to work.

The employer and employee agreed that the employee would advise the employer of any hazards or potential hazards by formal incident reports. A number of hazard reports relating to perfume were made by the employee.

The respondent’s union sought a meeting with the applicant to discuss the hazards – further medical evidence from physician and respiratory specialist was sought to complete the investigations about available options for respondent.

A direction to attend medical appointments was made by the employer and the employer gave an undertaking to meet the costs of assessments.

The commission (Williams C) noted that the employer was entitled to choose the medical professional in these circumstances – and that the employer’s directions to the respondent to attend medical appointments were reasonable.

Electricity Retail Corporation t/a Synergy v M [2014] FWC 2873 (8 May 2014) 


A “day” and a “shift”


Shift work can create issues for employers and employees. Employers can argue that employees are working shifts and so are not entitled to overtime or certain allowances. This was essentially what happened in W v Nowra Coaches Pty Ltd [2014] FCCA 1916 (29 August 2014).

In this case, the Federal Circuit Court awarded a long-distance bus driver $13,000 because he had not been paid a living-away-from-home allowance, after rejecting his employer's argument that he was employed to work shifts rather than calendar days and, therefore, was not entitled to a living-away-from-home allowance.

Justice Whelan found that the term “day “ meant a calendar day of 24 hours and not a single shift. This meant that the driver was entitled to 5.15 hours ordinary pay on Mondays and Thursdays when he could not conveniently return home.

W v Nowra Coaches Pty Ltd [2014] FCCA 1916 (29 August 2014)

The bottom line: Not every possibility can be foreseen when agreements are drafted; so, when, circumstances arise that leave open a number of interpretations the assistance of the Fair Work Commission can be called on.

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