Welcome to the first edition of the Fair Work Commission’s new subscription service, the Quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
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This section provides summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act). In this first edition of the Quarterly practitioner update, we have featured 15 decisions issued between 2 October 2014 and 31 March 2015.
Future editions of the Quarterly practitioner update will feature key Commission decisions issued in the preceding quarter.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
In this matter, the appellant appealed against a first instance decision that she had lodged an unfair dismissal application outside of the 21 day time limit specified in s.394 of the Fair Work Act. The application was lodged on Monday, 6 October 2014. The termination of the appellant’s employment took effect on either Saturday 13 September or Sunday 14 September 2014; consequently, the 21st day after termination fell on either Saturday 4 October or Sunday 5 October 2014.
The appellant submitted that that the first instance decision was in error because the Fair Work Act should have been applied consistent with s.36 of the Acts Interpretation Act 1901 (Cth) (the AI Act). Section 36(2) of the AI Act provides that ‘If: (a) an Act requires or allows a thing to be done; and (b) the last day for doing the thing is a Saturday, a Sunday or a holiday; then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.’
The respondent in the matter did not dispute the appellant’s contention. Permission to appeal was granted. The first instance decision and order were quashed and the application was referred for conciliation.
The appellant sought permission to appeal a decision dismissing his unfair dismissal application. The appellant was employed to perform 'safety sensitive aviation activities' at Sydney airport and was dismissed following a positive result from a random workplace drug test. The appellant admitted cannabis use on the weekend prior to the test; while it was not disputed that the appellant did not appear impaired, the Commission found his attendance at work with a level of the drug over the permitted threshold in his system was found to constitute 'at work' conduct.
The Full Bench found that dismissal following a positive test, in the context of safety-critical work, may be judged to be lawful and reasonable, and that it was reasonably open to the Member at first instance to find a valid reason for the dismissal. While the appellant submitted that the conduct was not serious enough to warrant dismissal, the Full Bench found that the seriousness of the conduct was not relevant to the issue of whether there was a valid reason and, moreover, that the appellant was not summarily dismissed. The Full Bench ultimately found that the outcome was not manifestly unjust or counter-intuitive; the appellant was not denied procedural fairness; the appellant was notified of the reason and given an opportunity to respond prior to dismissal; and there was no error in the first instance decision. Permission to appeal was refused.
This appeal was against a decision that the applicant had lodged his unfair dismissal application two days late. The application listed the date of dismissal as taking effect on 9 May 2014; the application was lodged on 2 June 2014. On appeal it became apparent that the dismissal had taken effect one day later, on 10 May 2014; after taking account of the weekend, the application was lodged the next business day and therefore within time. The appeal was upheld and the decision and order were quashed. The application was referred for conciliation and/or arbitration.
This unfair dismissal case involved a threshold matter of whether a transmission of business had occurred and, subsequently, whether the minimum employment period required under s.382 of the Fair Work Act had been completed. The respondent had successfully tendered for the provision of security services at the place of employment. The applicant, a former employee of the previous security contractor, was engaged as a full-time security officer from 30 June 2014. The applicant’s employment was terminated after three months with the respondent; the respondent objected to the application on the basis that the employment period did not satisfy the minimum six months per employment period in s.383 of the Fair Work Act. The Commission found that there was no transmission of business between the applicant’s former employer and the respondent for the purpose of determining continuous service, and the application was dismissed.
At first instance the Commission made an order for reinstatement with an attached condition ‘...subject to a risk assessment to be conducted by Sportsmed’. Ms Cartisano appealed. The Full Bench considered the remedy provisions under Part 3-2 of the Fair Work Act, together with the power of reinstatement and held that the Commission does not have the power to grant conditional reinstatement. The appeal was upheld, the decision and order were set aside and Ms Cartisano was unconditionally reinstated.
The appellant appealed against the decision not to extend time to file a general protections dismissal application. In deciding not to grant the extension, the Commission found that an applicant must provide a credible reason for the whole of the period that an application is delayed and that impairment of the applicant leading to the miscalculation of time did not account for the full 21 day period available to lodge his application. On appeal the majority of the Full Bench was satisfied that no error was made at first instance and that the decision did not give rise to any public interest considerations to warrant granting permission to appeal. Permission to appeal was refused.
The Full Bench minority accepted the delay as being the period between the expiry of the statutory period and the filing of the application, but held that two errors arose in the original decision: first, that the applicant’s mental illness was incorrectly disregarded as an acceptable reason for the delay in filing his application; second, that mental illness was rejected as evidence of the reason the applicant miscalculated the 21 day time period. The minority would have upheld the appeal and quashed the original decision.
Applications were made by three employees of DP World for orders to stop bullying pursuant to s.789 of the Fair Work Act. The respondents sought to have certain allegations struck out on the basis that the alleged bullying did not occur ‘at work’ within the meaning of s.789FD. The Commission only has jurisdiction to make orders to stop bullying if, among other things, the Commission is satisfied that ‘the worker has been bullied at work’ (s.789FF(1)(b)(i)). In contention was the meaning of the expression ‘while the worker is at work’ and the concept of being ‘at work’. The Full Bench decided that being ‘at work’ ‘encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)’. The central findings of the Full Bench can be found at paragraphs -.
This decision deals with an application to make a modern enterprise award to replace an enterprise instrument (the APS Award). The parties to the proposed award were mostly in agreement on the terms of the proposed award, and the Full Bench considered that the current terms and conditions play an important role and must be given appropriate weight. They determined that the APS Award has had a long and distinct history, and that the content of various industry specific modern awards do not reflect the needs, or the terms and conditions in the APS.
The Full Bench was satisfied that there were enterprise specific terms and conditions in the APS, and noted APS wages have been fixed having regard to internal relativities rather than the external comparisons which can be seen in industry modern awards. They were further satisfied that the nature of the work which gives rise to the relativities is enterprise specific, and that all parties to the APS Award were supportive of making a modern enterprise award. The Full Bench made findings in relation to matters at issue, but determined that a strong case had been made out for creation of a modern enterprise award, and that an award be made in terms decided. The application was referred to Smith DP for settlement of orders, with recourse to the Full Bench if necessary.
 FWCFB 644: 4 Yearly Review of Modern Awards—transitional provisions
As part of the 4 yearly review of modern awards common issues stage, transitional provisions relating to accident pay, district allowances and redundancy were dealt with following applications for the removal of sunset provisions in these provisions. The Award Modernisation Full Bench [ AIRCFB 1000] determined that provisions containing State-based differences should be for limited periods only in accordance with s.154(2) of the Fair Work Act; the same Full Bench anticipated further developments and provided the parties with a five year transitional period to consider whether, and in what form, provisions relating to accident pay and district allowances should be included in modern awards as part of the safety net.
No variation applications in relation to these provisions were made until the commencement of the 4 yearly review, and the Full Bench found that no case for continuation of the accident pay transitional provisions was made out and that the transitional district allowance provisions in awards relating to Western Australia and the Northern Territory cannot be retained in awards consistent with ss.134, 138 and 154. However, it found that the maintenance of a Broken Hill allowance in some awards was appropriate. Furthermore, the accident pay provisions in the Black Coal Mining Industry Award 2010 provide a clear national standard for that industry. Orders were made to vary the Black Coal Mining Industry Award 2010 to remove the sunset provision, and to delete obsolete provisions from awards.
This decision refused an application for approval of an enterprise agreement, finding that it did not pass the better off overall test and that there were no exceptional circumstances to warrant a finding that not approving the agreement would be contrary to the public interest (see s.189 of the Fair Work Act). The Commission found that the employees covered by the agreement were all from non-English speaking backgrounds, predominantly Korean and Taiwanese, and were working on subclass 417 visas. There were no union representatives involved in the agreement’s negotiation, and it was not drafted in a manner that allowed for ease of understanding. The agreement contained a clause which allowed employees to agree to work additional hours at the ordinary rate of pay; rates that were identical to the rates of pay in the Meat Industry Award 2010. The Commission considered the decisions in the MSA Security and BUPA Care Services cases and found that the agreement did not meet the better off overall test, and there was nothing in the agreement that was more beneficial to the employees than the modern award. The application for approval of the agreement was refused.
SGS Australia P/L (SGS) applied for approval of a single-enterprise agreement. The Commission dismissed the application because the pre-approval processes for the agreement were not satisfied; consequently the agreement was not genuinely agreed to within the meaning of s.188 of the Fair Work Act. The agreement made it clear that employees were obliged to comply with the terms of the company policies mentioned, which were specified in certain clauses. A breach by an employee of any mentioned policy would amount to a breach of the agreement. The Commission was satisfied that the employer took all reasonable steps to provide copies of agreement to employees and to make the agreement readily accessible to employees during the access period, but was not satisfied that the employer took any step, let alone all reasonable steps, to ensure that employees were either given a copy of the incorporated policies or had access to those policies during the access period. Therefore, the application for approval was dismissed.
Esso Australia Pty Ltd (Esso) appealed a decision and orders of the Commission granting applications for protected action ballot orders pursuant to s.437 of the Fair Work Act. The Full Bench was satisfied that it was in the public interest to grant permission to appeal, as there was a degree of tension between various Full Bench decisions dealing with the interpretation of s.443(1)(b) of the Fair Work Act. The Full Bench was not persuaded that the Commissioner erred in the exercise of her discretion, and dismissed the appeal.
An application was made by the employers for orders to suspend or terminate protected industrial action notified by two unions: the CEPU and the ASU. The Commission was satisfied that protected industrial action would threaten to endanger the personal safety or health, or the welfare of certain persons in that part of population in the coverage of the Ausgrid and Endeavour Energy networks, and orders suspending protected industrial action were issued.
This decision dealt with a request to allow amendments to applications made under s.394 of the Fair Work Act so that they may proceed as general protections applications under s.365. Taking into consideration ss.586 and 725 of the Fair Work Act, the Full Bench held that the Commission does not have the power to allow an unfair dismissal application to be converted into a general protections application.
The respondent in this unfair dismissal application was recently placed under administration. The joint administrators contended that the application could not proceed without consent under s.440D of the Corporations Act 2001 (Cth) (the Corporations Act). The Commission, applying Smith and Ors v Silverwood and Beck Pty Ltd (in liquidation) [(2006) 142 IR 137] found that the stay of proceedings and suspension of enforcement process provisions under the Corporations Act does not apply to commencement or continuation of proceedings in the Commission because it is not a ‘court’. The Commission found that the term should be given defined meaning and that a contrary intention did not appear; it observed that the Legislature could have included AIRC (the Commission’s predecessor) within scope of ‘court’ and had not done so. The Commission listed the matter for the purpose of making further directions.
This section provides summaries of a number of key Federal Court reviews of Commission decisions.
A Full Bench of the Commission upheld an appeal against a single member’s decision to reinstate an applicant in his employment as a ferry master after his dismissal for testing positive to a drug test for cannabis. The Full Bench concluded that the dismissal was not 'harsh, unjust or unreasonable'.
The appellant, the applicant from the first instance decision, took the matter to a Full Court of the Federal Court, asserting that the Full Bench committed jurisdictional error. The Full Court rejected the appellant’s argument, finding that the Full Bench was correct in finding that the Deputy President’s first instance decision was affected by error. It held that while the Commission is required under s.385(b) of the Fair Work Act to consider the statutory criteria set out there in determining what is 'harsh, unjust and unreasonable', this does not mean that the Commission must 'give weight to each and every factor that could be said to weigh in the balance in favour of an applicant as a consequence of termination'.
The issue in this matter was whether three enterprise agreements covering Kaizen Hospitals (Essendon) Pty Ltd were validly made. The individual who signed the agreements on behalf of the employer was the group’s corporate manager, who lacked the necessary express authority to sign on behalf of each of the employer entities. Both the first instance decision-maker and the Full Bench of the Commission found that that individual, while lacking express authority, had acted within his apparent or ostensible authority.
A single Justice of the Federal Court found that both the Full Bench and single Member had erred in coming to this conclusion. It was held that the person signing the agreement was required to have express authority.
On appeal, the Full Court upheld the findings of the Full Bench of the Commission.
Note: an application for special leave to appeal to the High Court was filed on 31 March 2015.
The applicants, who were from the Victoria No 1 Branch of the Health Services Union, sought to challenge the jurisdiction of the Commission to proceed with the inquiry concerning the potential revocation of right of entry permits issued to the applicants and other employees of the Branch.
Justice Beach agreed with the Minister for Employment who contended that s.507 of the Fair Work Act (which sets out when the Commission may take action against a permit holder) is not incompatible with s.603 (which sets out when the Commission can vary and revoke the Commission’s decisions).
Under s.156 of the Fair Work Act the Commission is required to review all modern awards every four years. In a statement  FWC 1790 issued on 17 March 2014 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise an Initial stage, dealing with jurisdictional issues (see  FWCFB 1788), a Common issues stage and an Award stage.
Decisions have been issued in relation to the first tranche of awards under review (Groups 1A & 1B  FWCFB 9412) and some common issues (apprentice conditions  FWCFB 9156, transitional provisions [2015 FWCFB 644 and alleged NES inconsistencies  FWCFB 9412). The remainder of awards in Groups 1, 2 and 3 will be dealt with in 2015, with the review of Group 4 awards being heard in 2016. Extensive consultation has occurred to determine the timetables for the major common issues in relation to part-time and casual employment and penalty rates in the retail and hospitality awards. All material in relation to the Review, including a detailed timetable, is available on the Commission’s website.
A new Enterprise agreements benchbook is available on the Commission’s website. The benchbook has been designed to assist parties who are bargaining for, and making, an enterprise agreement. The benchbook contains plain English summaries of key principles of bargaining and agreement making case law and how these have been applied in Commission decisions.
A new Notice of employee representational rights guide is available on the Commission’s website, setting out the requirements that employers must follow.
In the initial stages of the enterprise bargaining process, an employer is required to provide employees with a Notice of Employee Representational Rights (the Notice). The Fair Work Act states that the Notice must contain the content prescribed by the Fair Work Regulations 2009 and that it must be provided within the prescribed timeframe. The Commission can not approve an enterprise agreement if the Notice does not comply with these requirements.
The Appeal proceedings practice note provides a general explanation of appeal rights, and sets out the procedures followed by the Commission when listing, hearing and determining appeals.
The Fair hearings practice note provides procedural guidance and information about the conduct of hearings before the Commission, including the responsibilities of Commission Members, applicants, respondents and their representatives.
The Unfair dismissal proceedings practice note provides procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which do not settle at or which do not proceed to conciliation conducted by conciliators.
The Workplace Relations Education Series consists of three initiatives:
The Commission will be holding a mock hearing in Melbourne on 12 May 2015 as part of Law Week 2015.
More information about the mock hearing is available on the Commission's website.
In collaboration with the Centre for Employment and Labour Relations Law at the University of Melbourne, the Commission will host a lecture in Melbourne on Friday, 29 May 2015.
The lecture, The industrial system, discrimination & judicial method: the Australian reluctance, will be delivered by Associate Professor Anna Chapman and Professor Beth Gaze.
More information about the lecture is available on the Commission's website.
Subscribe to Events and engagement updates on the Commission’s website to receive notifications about future Commission events.
In 2014, the Commission’s Australian Workplace Relations Study (AWRS) surveyed employers and their employees about a number of employment and workplace relations matters. The AWRS has generated the first Australia-wide statistical dataset linking employee data with data from their employer since the Australian Workplace Industrial Relations Survey was conducted in 1995.
The AWRS First Findings Report was published in January 2015 on the Commission’s website. The Commission will release data over the first half of 2015 in a range of user-driven applications which will provide a public resource to those wishing to undertake their own analysis. The Commission’s AWRS activities will culminate in a two-day conference in June where invited and submitted papers that feature analysis of the AWRS data will be presented. You can subscribe to updates and find more information about AWRS on the Commission’s website.
Research Report 1/2015 provides a data profile of Australian businesses using the Australian Workplace Relations Study (AWRS) and the Award Reliance Survey. It presents information on the characteristics and performance of businesses by business size and degree of award reliance. The linked nature of the AWRS is utilised to analyse the characteristics of employees within businesses.
The Research reference list references Australian and international literature (such as working papers, journal articles or other types of published reports) relevant to the minimum wages and modern awards objectives. The list encompasses relevant literature published between March 2014 and March 2015.
As part of the medium-term research program confirmed by the Expert Panel for annual wage reviews, statistical reporting is being undertaken for the Annual Wage Review 2014–15. This reporting is separate from published research.
Amendments to the Fair Work Commission Rules 2013 took effect from 1 January 2015.
The amendments were made following a decision by the President of the Commission to separate the previous Form F8—General Protections Application into two forms:
The amended Rules also make the wording of service and lodgment requirements for a number of forms consistent, and remove the requirement for a response to be lodged in relation to a dispute under s.739 of the Fair Work Act.
Updates to five additional forms were approved in April 2015:
You can access all forms on the Commission’s website.
You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.
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