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These are EMA’s pick of the most interesting and relevant cases reported in the last month. Please note that these are summaries only, and should not be relied upon in place of the full judgment. If you would like clarification on any of the judgments, or wish to know how a particular case may apply to a matter you currently have, please contact one of our consultants.

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Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2018] FWC 1453 (9 March 2018)

Industry: Coal mining

Type: Payment dispute

Summary: Coal mine worker employed to operate vehicles loses his driver’s licence. Company usually makes arrangements to workers so they can continue working in similar circumstances, but didn’t in this case. EA stated that employees must perform “such tasks as reasonably required by company”. Employee put on leave without pay.

Outcome: Not “reasonably required” for employer to require employee to operate vehicles without licence. Common law right to refuse part performance of work modified by specific EA words in these circumstances. Employee entitled to payment for full period.

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Surace v Peoplesmove Pty Ltd [2018] FCCA 601 (23 March 2018)

Industry: Car Rental and Transport Services

Type: Underpayment – dispute over the correct award coverage

Summary: Assistant Site Manager claimed that they were covered by the Clerks – Private Sector Award 2010 and underpaid. Employer claimed that they were covered under the Miscellaneous Award 2010 and overpaid, and sought an order for the repayment of moneys owed.

Outcome: Found during the hearing that the correct award coverage was in fact the General Retail Industry Award 2010. Alleged “overpayment” was found to be a contracted over award payment – no repayment ordered.
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Construction, Forestry, Mining and Energy Union v Shamrock Civil Pty Ltd [2018] FWCFB 1772 (26 March 2018)

Industry: Construction

Type: Approval of agreement (appeal)

Summary: Enterprise agreement approved after a series of undertakings. The employer’s form F17 stated that there were no terms more beneficial or less beneficial than the award.

Outcome: The form F17 was clearly wrong, because there were terms less beneficial than the award, and if Shamrock did not include the detrimental terms in the F17, the explanation provided to employees must have also been wrong.  The agreement was not approved.

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Sam Technology Engineers Pty Ltd v Bernadou [2018] FWCFB 1767 (27 March 2018)

Industry: Engineering

Type: Unfair dismissal (appeal)

Summary: Employer submitted that the employee earned more than the high income threshold, so had no jurisdiction for unfair dismissal.

Outcome: ‘Earnings’ in the high income threshold test include the percentage of personal use of an allowance (in this case a car allowance).

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