1.  Latest decisions

Disciplinary meeting attendance a must

The Federal Court of Australia has held that failure to attend a disciplinary meeting amounted to repudiation of a dentist’s employment contract. The contract contained a clause to “obey the reasonable directions” of the employer. The disciplinary meeting sought to address staff concerns that the dentist’s e-mail communications and in-person behaviour were aggressive, erratic and “pugnacious”.

After failing to attend the disciplinary meeting, the dentist also redirected mail away from the employer’s office. Justice Lee held that the mail redirection and the failure to comply with reasonable direction amounted to serious misconduct.

The dentist filed an interlocutory order restraining the employer from taking steps to terminate his employment in March 2017. His adverse action claim, alleging the employer would not have terminated his employment but for his filing of the restraining order, failed.

To read the full decision click here.

Refusal to rescind nurse’s resignation held procedurally unfair – nurse reinstated

The Fair Work Commission (FWC) has ordered that a nurse at an aged care facility be reinstated after footage was taken of the nurse laughing at resident deaths, ignoring resident calls for help on her buzzer and teasing a resident.

The employer used the footage as a basis for holding a disciplinary meeting but refused to show the footage to the nurse as it had been taken covertly by a co-worker.  The nurse tendered a letter of resignation and offered four weeks’ notice. The general manager insisted the resignation would be effective immediately.  The nurse subsequently sought to rescind her resignation and the employer refused.

The FWC held the refusal to rescind the nurse’s resignation amounted to a ‘harsh and unfair’ constructive dismissal. Refusal by the employer to show the nurse the video footage amounted to procedural unfairness as employees have the right to know the specific allegations being made against them.

To read the decision click here.

High Court reserves judgment on Aldi enterprise coverage

The High Court of Australia has reserved judgment in the appeal between ALDI and the Shop Distributive and Allied Employees Association (SDA) regarding the status of ALDI’s enterprise agreement with workers. 

To see further details about this appeal, click here.

ALDI expanded their operations to include a new distribution centre in South Australia and signed an agreement with 17 potential employees.  The question to be determined by the Court was whether those potential employees were covered by the enterprise agreement although they were not current employees.

The Federal Court of Australia had previously ruled against the Full Bench of the FWC and overturned the enterprise agreement , finding that as none of the 17 employees was working in their positions at the time of the vote, they were not ‘covered’ as required by section 186 of the Fair Work Act.

The SDA also submitted that it should have been involved in the employment negotiations as ALDI’s distribution centre was a ‘greenfields’ operation.

The full transcript can be read here.

Underpaying employer receives record $644,000 fine

A Melbourne fruit market owner and his company were fined for exploiting an Afghan refugee worker.  The refugee was paid $10 an hour to move and stack produce, working up to 12 hours a day.  The General Retail Industry Award required payment between $17 and $43 an hour. In total, the refugee was underpaid $25,588 over 2 eight week periods of employment. 

The owner had previously ignored the Fair Work Ombudsman’s warnings about underpaying the vulnerable refugee. The owner was fined $16,020 and his company $644,000, which is the highest recorded fine resulting from Fair Work Ombudsman litigation.

The record penalty highlights how seriously the Courts view exploitation of vulnerable workers and reinforces the importance of paying minimum wages and entitlements.

2.  Recent news

United Voice and NUW confirm merger

United Voice and the National Union of Workers (NUW) have confirmed recent merger rumours with a joint statement saying that their national executives had signed an MOU to explore a ‘new union model’.

United Voice represents workers in hospitality, childcare, health, manufacturing and community services. NUW members work in warehousing, distribution, food manufacturing, dairy, cold storage and other food and production industries. If amalgamated, the new organisation would have over 170,000 members.

NUW and UV will meet at the end of this year to discuss how a merger between the two would take shape.

Potential new laws to deregister unions

The Turnbull Government has introduced legislation that makes it easier to deregister unions that show a disregard for civil and workplace laws.

The Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill was introduced to the House of Representatives on 16 August 2017.  It includes a public interest test on union mergers, a fit and proper person test for union officials and allows the Federal Court to cancel the registration of a union for corrupt conduct and other grounds, which include ‘repeated breaches’ of industrial laws and the taking of ‘obstructive unprotected industrial action by a substantial number of members’.

The Bill comes out of a number of recommendations of the Heydon Royal Commission.

Further information about the Bill can be found on the Parliament of Australia website.

Many thanks to clerk Hana Lee for her assistance in preparing this blog.