Fair Work Commission

Welcome

Welcome to the third 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.

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au. You can read previous editions of the newsletter on the Commission’s website.

Key decisions

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 edition of the Quarterly practitioner update, we have featured 9 Commission decisions issued between 1 July 2015 and 30 September 2015.

Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.

Unfair dismissal matters

Appeal by Cigarette & Gift Warehouse (Franchising) P/L t/a Freechoice Bentleigh against decision [[2015] FWC 2276] Re: Evans

The Commission had found at first instance the applicant had been unfairly dismissed and ordered a remedy of $24,098.88 plus 9.5 per cent superannuation.

The appellant sought to appeal the amount of the remedy awarded. A stay order was issued by consent and the appellant raised seven grounds for appeal. The Full Bench considered submissions and determined that the six grounds for appeal did not raise any issue of importance or general application which would attract public interest.

The appellant submitted that the amount of compensation ordered was more than a period of six months’ pay and included car allowance which was in lieu of the employee’s tool of trade. The employee conceded that the car allowance should not have been included as it was to reimburse her for cost of using her private vehicle to make deliveries on behalf of appellant.

Permission to appeal was granted. The first instance decision and order were quashed and the amendment granted by the Full Bench. The Full Bench determined the appropriate amount of compensation as $21,488.88 plus 9.5 per cent superannuation.

Read decision [2015] FWCFB 4030

Appeal by Kimber against decision [U2014/5107] Re: Western Auger Drilling P/L

The appellant’s unfair dismissal application was dismissed at first instance because the applicant did not meet the minimum employment period due to a period where she had been engaged as a contractor, not an employee.

The appellant submitted that the Commission should have made a finding that the appellant was an employee for the relevant period. The Full Bench concluded that the Commission erred at first instance by overly relying on the manner of remuneration to decide whether she was an employee or a contractor.

The Full Bench found that the Commission’s conclusion that the appellant was not an employee for the period in question was an error on a question of jurisdictional fact. Permission to appeal was granted on the basis of public interest. The Full Bench held that the appellant had completed the minimum period of employment and was therefore protected from unfair dismissal. The appeal was upheld, the jurisdictional objection dismissed and the matter was remitted for conciliation.

Read decision [2015] FWCFB 3704

Anti-bullying matters

CF, NW and Company A and ED

In this matter, two applicant employees of small real estate business applied to the Commission for anti-bullying orders relating to alleged bullying conduct of the Property Manager (ED).

Alleged behaviour by ED included belittling conduct, swearing, yelling and use of otherwise inappropriate language, physical intimidation and threats of violence. After concerns were raised with the employer, an informal investigation led to ED resigning and taking up an equivalent position with a related company. Although operating in a different location, there was potential for interaction between employees and was ED later ‘seconded’ back to employer on a short-term basis.

The applicants both lodged claims for workers compensation and were undergoing medical treatment, and it was conceded by the employer at hearing that a finding of bullying conduct could be made. The Commission held that the conduct revealed a workplace culture of unprofessional and unreasonable conduct and interactions which took place created a health and safety risk to employees. The Commission found that the workers had been bullied at work and was satisfied that there was a risk that the bullying would continue.

Orders were subsequently made by the Commission with the consent of all parties. These orders require actions by parties, namely that the applicants and the ED do not approach each other and they not attend the other business premises. The orders also include the establishment and implementation of appropriate anti-bullying policies, procedures and training, and operate for a period of 24 months.

Read decision [2015] FWC 5272

Roberts v VIEW Launceston P/L as trustee for the VIEW Launceston Unit Trust t/a View Launceston and Ors

In this case, the applicant was employed as a property consultant for a real estate agency. The individuals named in the anti-bullying application were the principal and co-director of the employer, and a sales administrator.

The applicant alleged that the bullying had resulted in her being unable to sleep and being depressed and highly anxious, leading to her being medicated and treated by a psychologist. The applicant alleged she was belittled and humiliated by one of the named individuals and was treated differently from other employees of the respondent company by the named individuals, such as by refusing to acknowledge her in the morning and not delivering photocopying to her as was done for other employees. The applicant also alleged that one of the named individuals delayed performing administrative work for her, suggested she was in a sexual relationship with one of her clients, damaged her professional reputation and variously ignored her or spoke to her in an abrupt manner in the office.

The Commission was satisfied that some of the alleged bullying had occurred and that there was a risk that the applicant would continue to be bullied at work. A further conference was listed to be held between parties to discuss the Order to be made.

Read decision [2015] FWC 6556

Dispute resolution matters

Appeal by Construction, Forestry, Mining and Energy Union-Construction and General Division against decision [[2015] FWC 2384] Re: Port Kembla Coal Terminal Limited

This matter involved an appeal against the decision to dismiss an application to enable the respondent to introduce its preferred method of random drug testing. The dispute involved the introduction of a workplace drug testing regime as part of an alcohol and other drugs (AOD) policy. The respondent wished to introduce drug testing that involved urine sampling which was opposed by the appellant. During the case the respondent altered its position to the adoption of randomly-selected use of both urine and oral fluid sampling.

The appellant appealed on the basis that the Commission mistook the facts in positing a definite relationship between the AOD testing, detection and physical impairment or ‘intoxication’ on the part of employees, contrary to the expert evidence.

The Full Bench found that the Commission had erred in its summary of the expert evidence. The findings at first instance were inconsistent with the conclusions upheld by the Full Bench in Endeavour Energy. The Full Bench found it was in the public interest to grant permission to appeal; the appeal was allowed and the decision was set aside.

The matter was reconsidered by the Full Bench, who found that a system which uses both urine and oral fluid sampling methods (selected at random) had advantages that outweighed privacy concerns. The Full Bench was satisfied it would not be unjust or unreasonable for the respondent to implement its preferred approach to random drug testing.

Read decision [2015] FWCFB 4075

Enterprise agreement matters

Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against decision [[2015] FWCA 3047] Re: Mirait Technologies Australia P/L

At first instance the Deputy President approved the application for approval of the Mirait Technologies Australia (MTA) Enterprise Agreement 2015 – 2019. The decision was appealed on grounds that at the time the decision was made, there were reasonable grounds for believing that the agreement had not been genuinely agreed to for the purposes of s.188(c) and that the Commission could not have been satisfied as required by s.186(2)(a). Other grounds of appeal included the failure to convene a hearing and the adequacy of given reasons for the decision.

The Full Bench were able to dispose of the appeal on the ground of non-compliance with pre-approval steps. Two statutory declarations made by the employer in support of the application contained information that was different and inconsistent. The Full Bench was satisfied that the appeal raised important questions about the proper consideration and application of the pre-approval steps set out in the Fair Work Act.

Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the application for approval of the agreement was remitted for determination.

Read decision [2015] FWCFB 5078

Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against decision [[2015] FWCA 3723] Re: B & E Trevena & Sons t/a Trevsons Nominees P/L

This matter involved an appeal against the decision to approve a variation to the Trevsons Nominees P/L (Trading as B & E Trevena & Sons) and CEPU – Plumbing Division (Vic) Enterprise Agreement 2011 – 2015 (the agreement). The employer representatives had advised the Commissioner that the appellant was covered by the agreement but were not proposed to be covered by the agreement as varied.

The appellant appealed on the grounds that the Commission had erred in approving the variation in circumstances where they were bound by the agreement but had not been given an opportunity to be heard. The employer accepted that the appellant had not been afforded procedural fairness.

The Full Bench held that failure to provide the appellant with an opportunity to be heard in relation to the decision to approve proposed variations amounted to an inadvertent denial of procedural fairness. The Full Bench granted permission to appeal with the appeal allowed. The decision was quashed. The application to vary the agreement was remitted for consideration.

Read decision [2015] FWCFB 5125

Appeal by Serco Australia P/L against decision [[2015] FWC 4643] Re: United Voice and Anor

At first instance the Commissioner dismissed the application for approval of the Serco Immigration Services Agreement 2015 on the basis that the notice of employee representational rights (the Notice) referred to Fair Work Australia, rather than the Fair Work Commission and therefore did not comply with the requirements of s.174(1A).

The primary basis for appeal was that s.25B(1)(b) of the Acts Interpretation Act 1901 (Cth) states that unless the contrary intention appears where the name of a body is altered by statute then any reference to the former name should be construed as a reference to the new name. The Full Bench found that this provision applied to the regulation setting out the prescribed notice.

Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the application for approval of the agreement was remitted for determination on the basis that the Notice complied with s.174(1A) and was valid.

Read decision [2015] FWCFB 5618

Right of entry matters

Re: The Australasian Meat Industry Employees Union

In this matter there was an application to deal with a right of entry dispute between the union and Teys, related to Teys’ Beenleigh plant. The dispute was around whether a permit holder seeking entry to premises for the purposes of holding discussions with employees may enter with written material which the permit holder intends to distribute to employees during discussions.

The union had prepared a newsletter setting out its explanation of a judgment of the Full Court of the Federal Court in relation to Teys’ application for judicial review of a decision of the Commission relating to the approval of an enterprise agreement. Teys advised the union that no material would be permitted to enter or be distributed on any of their sites, specifically the Beenleigh site, and any attempt to bring the newsletter or any other written material onto the site would result in confiscation.

The union submitted that entry for the purposes of holding ‘discussions’ was not limited to oral communications. The ordinary meaning of discussion includes one that is conducted in writing or that includes writing. The Full Bench found the word ‘discussions’ in s.484 carries its ordinary meaning and is not confined to oral communications.

Read decision [2015] FWCFB 5228

Road Safety Remuneration Tribunal

Draft road safety remuneration order – minimum payments for contractor drivers

On 26 August 2015 the RSRT issued a draft road safety remuneration order which includes draft minimum payments for certain contractor drivers.

The draft Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (draft Payments RSRO) covers those sectors of the road transport industry involved in the distribution of goods destined for sale or hire by a supermarket chain or involved in long distance operations in the private road transport industry.

The draft Payments RSRO includes clauses on:

• minimum payments for contractor drivers engaged on long distance operations
• minimum payments for contractor drivers engaged on distribution operations
• unpaid leave
• supply chain contracts
• promotion of orders, and
• dispute resolution.

The clauses in the draft Payments RSRO would impose requirements on employers or hirers of road transport drivers and participants in the supply chain.

The issuing of the draft Payments RSRO follows a period of extensive consultation with interested parties and the publication of an independent research project by KPMG on minimum payments for road transport contractor drivers.

The Tribunal has also published a draft online payments calculator to assist with calculating the minimum payments contained in the draft Payments RSRO.

Following hearings on the draft Payments RSRO held in Melbourne from 22 to 25 October 2015, the Tribunal issued directions inviting submissions and submissions in reply on specified matters. Once the submissions process has concluded, the Tribunal intends to make a decision on whether or not to make an RSRO based on the draft Payments RSRO having regard to all the material before it.

Read statement [2015] RSRTFB 11 (PDF)

Key court reviews

This section provides summaries of a number of Federal Court reviews of Commission decisions.

CSR Limited v CSR & Holcim Staff Association [2015] FCAFC 95

Matter reviewed: Full Bench decision [2014] FWCFB 7351

A Full Federal Court found that a Full Bench was incorrect in rejecting an application from the CSR & Holcim Staff Association to make a modern enterprise award to replace the CSR Staff (Consolidated) Award 2000, resulting in the termination of that award.

The Full Court found that the Full Bench’s decision was made without reference to the obligation imposed upon it by s.134(1), other than the need to encourage collective bargaining.

The Court quashed the Full Bench’s decision and directed the Commission to determine the application to make a modern enterprise award.

Read Federal Court decision [2015] FCAFC 95

Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131

Matters reviewed: Full Bench decisions [2015] FWCFB 644 and [2015] FWCFB 2835

A Full Federal Court found that a Full Bench was correct in its decision to retain an allowance (the Broken Hill allowance) in four modern awards for employees working in Broken Hill in New South Wales as a part of the 4 yearly review of modern awards.

The Australian Chamber of Commerce and Industry had applied to the Full Court to declare that the Broken Hill allowance fell within s.154(1)(b), and was therefore prohibited by s.136(2)(a) and had no effect by reason of s.137.

The Full Court held that the reference in the Broken Hill allowance to the ‘exigencies’ of working in Broken Hill, for which an extra amount is payable, was adequate and apt to convey that the allowance was a disability allowance for work in a particular location. Buchanan J concluded that the Broken Hill allowance was a disability allowance for a particular location within the meaning of s.139(1)(g)(iii) and was a term which may be included in a modern award. Buchanan J also found that the objective of s.154(1) was to prohibit differences between entitlements in States or Territories as such (i.e. to eliminate ‘State-based’ differences). Section 154 did not prohibit disability allowances for particular locations, or for a particular location. Section 154(1) did not apply to prevent or prohibit the Broken Hill allowance. The application was dismissed.

Read Federal Court decision [2015] FCAFC 131

Award modernisation 4 yearly review

Under s.156 of the Fair Work Act the Commission is required to review all modern awards every four years. All material in relation to the Review, including a detailed timetable, is available on the Commission’s website.

As part of the 4 yearly review, the Commission is redrafting all modern awards to make them more consistent and easier for employers and employees to use. Exposure drafts have been published based on 49 awards with parties being given the opportunity to comment on the drafts. A dedicated page for each award has been created.

Two decisions relating to technical and drafting matters in the exposure drafts, in particular, the operation of all purpose allowances in modern awards were issued during the quarter.

Penalty rates

Claims made as part of the 4 yearly review of modern awards by employer organisations to vary penalty rates provisions in a number of awards in the hospitality and retail sectors are being heard by a Full Bench (AM2014/305). There were 15 days of hearings during the quarter concentrating on the hospitality sector, with the matter listed for 24 further days in 2015 to hear expert and retail evidence.

To assist parties to this matter a dedicated area on the Commission’s website and a Penalty rates case subscription service have been set up.

Transitional provisions

A decision was issued on 18 August 2015 in relation to transitional accident pay provisions in modern awards (AM2014/190). Applications relating to 37 modern awards sought to insert an entitlement to accident make-up pay that applied to all employees covered by each award. The applications were generally seeking either 26, 39 or 52 weeks as the maximum period of accident pay to be provided.

The Full Bench determined that the awards could be grouped into four broad categories:

1. Awards where there had been a clear national standard of accident make-up pay in the pre-reform instruments which formed the basis for the making of the modern awards.
2. Awards where a significant proportion of the employees had an entitlement to accident make-up pay under the terms of pre-reform instruments.
3. Awards where only a limited proportion of the employees covered had an entitlement to accident make-up pay.
4. Awards where there was no history of accident make-up pay entitlements.

Having considered the evidence and submissions of the parties and the relevant statutory provisions, the Full Bench decided that in order to achieve the modern awards objective that the awards in the first two categories be varied to include provision for accident make-up pay. In general the Full Bench considered that the safety net accident pay entitlement should only apply for a period of 26 weeks from the time of incapacity for work due to injury or illness. In the awards in the first category the pre-reform instruments generally provided an entitlement of 39, 52 or 104 weeks. The Full Bench decided, having regard to the evidence and submissions in the present proceedings, that no award should include an accident pay entitlement exceeding 52 weeks.

Read decision [2015] FWCFB 3523

Annual leave

Further to a decision on 11 June 2015 [[2015] FWCFB 3406] the Commission provided interested parties with an opportunity to make further submissions on the issues of:

• excessive annual leave
• cashing out of annual leave
• granting leave in advance, and
• purchased leave.

The Full Bench issued a decision on 15 September 2015 to vary the provisional model term regarding excessive annual leave to facilitate the making of mutually beneficial arrangements between an employer and employee and to provide an effective mechanism to address excessive annual leave accruals.

However, the Full Bench decided that the issue of whether clauses permitting the cashing out of annual leave should explicitly provide for leave loading to be paid was a matter best dealt with on an award by award basis.

In relation to granting leave in advance, the Full Bench concluded that the requirement of the model term that an employer must make and keep an employee record in respect of a period of paid leave taken in advance of the employee accruing an entitlement to such leave should be retained.

No submissions filed supported the development of a model term dealing with purchased leave. The Full Bench determined that any proposals in respect of purchased leave would be dealt with on an award by award basis.

Read summary of decision [2015] FWCFB 5771

Read decision [2015] FWCFB 5771

Award flexibility

A decision was issued on 16 July 2015 in relation to award flexibility provisions in modern awards (AM2014/300). The Ai Group had made two claims: the first to insert a model time off in lieu (TOIL) of payment for overtime clause into a number of modern awards, and the second relating to ‘make-up time’ provisions. The AMWU sought to vary provisions relating to TOIL in a number of awards to provide for accrual of TOIL at ‘time for penalty’ rate rather than ‘hour for hour’ basis.

The provisional view of the Full Bench was that the variation of the modern awards to incorporate the model term was necessary to ensure that each of these modern awards provided a fair and relevant minimum safety net. The Full Bench were not persuaded that the variations proposed regarding make-up time or the variations sought regarding accrual of TOIL on a ‘time for penalty rate’ basis were necessary to achieve the modern awards objective.

Interested parties were provided with an opportunity to make further submissions directed at both the model TOIL term and the proposition that all modern awards which provide for overtime be varied to insert the model term, subject to some exceptions. The Full Bench released a statement regarding the Building and Construction General On-Site Award 2010 and the Joinery and Building Trades Award 2010 (PDF) on 16 October 2015.

Read decision [2015] FWCFB 4466

New modern awards

Five new modern awards that apply to a single enterprise or a State reference public sector employer were made during the quarter. There are now 122 modern industry and occupational awards, nine enterprise awards and four State reference public sector modern awards. You can access a full list of awards on the Commission’s website.

Plain language pilot

In a Statement issued on 22 September 2015, the Commission announced it will be conducting a Pilot to produce a plain language exposure draft based on the Pharmacy Industry Award 2010. The draft will be prepared by an external expert who will be instructed to create a plain language document which is both simpler and easier for employees and employers to understand than the current award, without changing its legal effect.

A mention will be held on 30 October 2015 to finalise the timetable for the pilot.

Resources & initiatives

Practice notes

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.

Events

Workplace Relations Education Series

The Workplace Relations Education Series consists of three initiatives:

• workplace relations lectures
• mock hearings, and
• an invited paper series.

Invited paper 2/2015, by Professor Amanda Pyman

The Commission has published the latest contribution to the invited paper series from Amanda Pyman, Professor at the Department of Management at Deakin University.

The paper explores the role and frameworks of employee involvement and participation in the workplace. It examines the benefits of joint consultative committees, how they can be integrated into workplaces, and what strategies can be employed for ensuring their effectiveness.

New recordings of mock hearings and lectures available

Recordings of the recent anti-bullying and unfair dismissal mock hearings from Law Week 2015 are now available on the Commission’s website.

A recording of Professor Amanda Pyman’s recent lecture on The role of consultation in the future of Australian workplaces is also available.

New Approaches workshops—Darwin, 25 and 26 November 2015

In conjunction with the Law Society of the Northern Territory, the Commission will facilitate two workshops in Darwin on interest-based bargaining and workplace dispute prevention and resolution on 25 and 26 November 2015.

Further information about the workshops is available on the Law Society’s website.

General update

New appointments to the Fair Work Commission

The Government has announced four appointments to the Fair Work Commission, including three new Commissioners and a Deputy President.

Mr Geoffrey Bull has been promoted to a Deputy President position on the Commission. Mr Bull was appointed to the Commission as a Commissioner in 2012 and has been appointed as a Deputy President. Deputy President Bull is based in the Perth office.

Ms Tanya Cirkovic, Mr Christopher Platt and Mr Tony Saunders have been appointed as Commissioners. Ms Cirkovic was formerly the Principal of her own boutique law firm, Tanya Cirkovic & Associates, specialising in employment and workplace relations. Commissioner Cirkovic is based in the Melbourne office.

Mr Platt was formerly the Manager of Employee Relations at BHP Billiton’s Olympic Dam project. Commissioner Platt is based in the Adelaide office.

Mr Saunders was formerly a barrister based in Newcastle and Sydney specialising in employment litigation, including employment claims, industrial disputes, discrimination and work health and safety. Commissioner Saunders is based in Newcastle.

More updates

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.

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au.