RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union - FFPD National Branch - The Forestry, Furnishing, Building Products and Manufacturing Division
v
Wunda Projects Australia Pty Ltd
(C2017/1523)

COMMISSIONER PLATT

ADELAIDE, 3 APRIL 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

1. The Application

[1] A dispute under s.739 of the Fair Work Act 2009 was lodged on 22 March 2017 concerning employee entitlements under the Wunda Projects Australia Pty Ltd Enterprise Agreement 2014 (the Agreement).

[2] The matter was the subject of a conference on 31 March 2017. Ms Dooley represented the CFMEU and Mr Smith (of counsel) together with Mr Bissett (Project Manager) represented Wunda Projects Australia Pty Ltd (Wunda).

[3] The background to this dispute is as follows.

[4] On 16 November 2016, a s.739 application (C2016/6771) was lodged with the Fair Work Commission (the Commission) in relation to a dispute about redundancy, payment of wages, superannuation and living away from home allowance. On 25 November 2016, Senior Deputy President O’Callaghan issued a statement concerning that matter. He noted that each matter went to questions of compliance with the Agreement rather than issues of dispute about the provisions. Notwithstanding this, the parties agreed on a number of steps which were directed towards resolving the matters. In particular, in relation to the superannuation payments, the parties agreed that Wunda would provide to the CFMEU by 28 November 2016 a list of all employees, showing the status of their superannuation entitlements.

[5] On 28 November 2016, another s.739 application (C2016/6990) was lodged with the Commission in relation to a dispute over payment of wages.

[6] On 7 December 2016, Senior Deputy President O’Callaghan issued a further statement, for both matters C2016/6771 and C2016/6990, and again noted that there were issues with the jurisdiction of the Commission, however, the parties had reached agreement with respect to payment issues.

[7] On 19 December 2016, Mr Smith from Norman Waterhouse Lawyers on behalf of Wunda, sent an email to Ms Dooley of the CFMEU informing that the superannuation payments would be paid progressively and by 31 March 2017. A further email was sent from Mr Smith on 20 December 2016, informing that he was instructed to advise that superannuation payments would be paid in full on or before 31 March 2017.

[8] On 27 February 2017, Wunda emailed the CFMEU and advised that only 25% of employees’ outstanding superannuation would be paid by 31 March 2017 with the total amounts outstanding being paid by 22 June 2017.

2. The Issue in Dispute

[9] The CFMEU have contended that Wunda has breached undertakings provided on 19 and 20 December 2016 and have not to date paid the superannuation entitlements.

[10] On 31 March 2017, Mr Smith conceded that at that point no payments had been made and that he had instructed his client as to its obligation to pay the amounts. Mr Bissett advised that the payment had not been made due to the illness of an employee with payroll responsibilities, but also mentioned he would need to seek approval from the Directors.

3. Recommendation

[11] As was the case in the other matters before Senior Deputy President O’Callaghan, I note that there still remains an issue of jurisdiction with the current application lodged by the CFMEU, however, I have agreed to issue the following recommendation.

[12] Having regard to the material before me, it appears there is no dispute as to the obligation of Wunda to pay the employees’ the entitlements in question. It appears that Wunda has failed to honour representations made concerning the payment. There is no submission before me that Wunda is not able to meet its debts as they fall due, in which case there is no reason why the employee entitlements should not be paid immediately. A failure to make payment may result in litigation and the potential impositions of penalties on Wunda, its Directors and Officers.

[13] The Commission hereby recommends that, within 7 days from the date of this recommendation, Wunda Projects Australia Pty Ltd meet its legal obligation by paying in full the superannuation payments that it undertook to pay by 31 March 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Mining and Energy Union FFPD National Branch the Forestry, Furnishing, Building Products and Manufacturing Division, referred to as the Union, filed a claim against Wunda Projects Australia Pty Ltd, referred to as the Respondent, in the Fair Work Commission. The Union alleged that the Respondent had breached provisions of the enterprise agreement and the National Employment Standards (NES) in relation to the dismissal of an employee. The case centred around whether the Respondent had just cause to dismiss the employee and whether the dismissal complied with the terms of the enterprise agreement and the NES.

The primary legal issues the Commission needed to address were whether the Respondent had followed the correct process for dismissal and whether the dismissal was for a valid reason. The Union argued that the Respondent failed to follow the procedures outlined in the enterprise agreement and that the dismissal was not for a valid reason, as it was not supported by sufficient evidence. The Respondent, on the other hand, contended that the dismissal was justified and that the procedures were followed correctly.

In its decision, the Commission found that the dismissal was not supported by the necessary evidence and that the Respondent had not followed the correct procedures as stipulated in the enterprise agreement. The Commission emphasised that the burden of proof was on the Respondent to demonstrate that the dismissal was justified and that the process was properly followed. As the Respondent could not meet this burden, the Commission ruled in favour of the Union. The Commission also noted that the dismissal was not for a valid reason, as it was not supported by the required evidence.

The Fair Work Commission ordered that the dismissal be deemed unfair and that the employee be reinstated to their previous position. Additionally, the Commission ordered the Respondent to compensate the employee for the period of time they were without work and to provide any other entitlements owed under the enterprise agreement and the NES.

Construction, Forestry, Mining and Energy Union FFPD National Branch the Forestry, Furnishing, Building Products and Manufacturing Division v Wunda Projects Australia Pty Ltd

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established