Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38

(#P30_1308) Decision at [4]

(#P31_1564) Ibid. There may be some doubt as to the correctness of that acceptance. There is an enterprise agreement titled Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2014 - Osborne Park Manufacturing which commenced operation on 14 September 2015 and has a nominal expiry date of 30 June 2017 ([2015] FWCA 6143). That agreement is expressed to cover all employees employed within the manufacturing division of Iplex located at 25 King Edward Road Osborne Park WA (clause 2.3) but excludes any employees engaged as a salaried employee (clause 2.3) or salaried staff employed on individual contracts (clause 1.1). The agreement contains a classification titled "Team Leader" (clause 4 of Attachment A). Evidence as to Mr Bienias' status as a salaried employee or salaried staff employed on an individual contract appears at AB183 - AB 184 [15] with a copy of that which is described as Mr Bienias' employment contract found at AB 198 - AB 211. That document carries a notation that it was issued on 7 October 2015 (AB 198) and that the commencement date is 1 October 2015 (AB 198). Both these dates postdate the date on which the agreement commenced to operate. Furthermore the employment contract appears on a Fletcher Building letterhead and provides that the document outlines "your individual terms of employment which are specific to you" and that these "are to be read in conjunction with the Fletcher Building Standard Terms and Conditions of Employment" (AB 198). The employment contract specifies the place of work as Osborne Park and the classification as Team Leader (AB 198). The employment contract does not appear to make any reference to Iplex but makes continual reference to Fletcher Building and relevantly makes reference to an acknowledgement by Mr Bienias that he has "not deliberately failed to disclose any material which may have materially influenced Fletcher Building Limited's decision to employ me" (AB 200). Fletcher Building Limited appears to be the parent company of Iplex. However as there is no evidence of the internal arrangements concerning employment as between these related entities and since neither party quarrelled either at first instance or during the appeal about the status of Iplex as Mr Bienias' employer or about the Award's coverage and application to that employment at all relevant times we will proceed to determine the appeal on that basis.

(#P34_4223) Decision at [5]

(#P35_4604) Decision at [9]

(#P38_5126) Decision at [10]

(#P41_5416) Ibid

(#P44_5680) Decision at [11]

(#P47_5998) Decision at [12]

(#P50_6200) Decision at [13]

(#P53_6667) Decision at [14]

(#P54_6997) Ibid

(#P55_7182) Ibid

(#P58_7385) Decision at [15]

(#P59_7684) Ibid

(#P62_7991) Decision at [16]

(#P65_8187) Decision at [17]

(#P66_8348) Ibid

(#P67_8626) Ibid

(#P70_8861) Decision at [18]

(#P87_10186) Decision at [57]

(#P116_16346) Decision at [72] - [77]

(#P119_16593) Decision at [78]

(#P120_16724) Ibid

(#P121_17040) Ibid

(#P148_21204) This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

(#P157_22267) [2011] FCAFC 54; (2011) 192 FCR 78 at [43]

(#P158_22414) O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] -[46]

(#P161_23315) [2010] FWAFB 5343, 197 IR 266 at [27]

(#P164_23560) Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

(#P165_23743) GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

(#P168_24469) Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

(#P171_24729) [1936] HCA 40; (1936) 55 CLR 499

(#P186_28360) [2016] FCAFC 160

(#P187_28960) See also O'Connell v Catholic Education Office, Archdiocese of Sydney [2016] FWCFB 1752

(#P192_29943) (1995) 62 IR 200

(#P195_30488) Ibid at 205 - 206

(#P202_31539) AB 426

(#P241_34008) Appeal Transcript PN73- PN76

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