Welcome to the Fair Work Commission’s 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 firstname.lastname@example.org.
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 13 Commission decisions issued between 1 October 2015 and 30 December 2015.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
Applications for an equal remuneration order were made by United Voice, the Australian Education Union (Victorian Branch), and the Independent Education Union of Australia, in the children's services and early childhood education industry.
The principle of 'equal remuneration for work of equal or comparable value' appears in three parts of the Fair Work Act: in the modern awards objective, the minimum wages objective and the equal remuneration provisions in Part 2-7.
In order for the jurisdictional prerequisite for the making of an equal remuneration order in s.302(5) to be met, the Commission must be satisfied that an employee or group of employees of a particular gender to whom an equal remuneration order would apply do not enjoy remuneration equal to that of another employee or group of employees of the opposite gender who perform work of equal or comparable value. This is essentially a comparative exercise in which the remuneration and the value of the work of a female employee or group of female employees is compared to that of a male employee or group of male employees. The Full Bench did not accept that s.302(5) could be satisfied without such a comparison being made.
A number of parties submitted that the gap in remuneration between the two individuals or groups being compared should be bridged only to the extent of that part of the difference which was gender-related, and that the Commission must exclude from consideration any element of any difference in remuneration which is non-gender related.
The Full Bench found if an order is made, it must ensure equal remuneration. An order that, because of 'discounting', only bridges part of the gap in remuneration between the employees of the opposite gender being compared is not one that ensures equal remuneration.
The Full Bench also considered whether it was appropriate for the Commission to develop guiding principles. While there is no express power for this in the Fair Work Act, one of the functions conferred on the Commission by s.576 is to provide 'assistance and advice about its functions and activities'. Accordingly the Full Bench was satisfied that the Commission had the power to develop guiding principles.
The Full Bench will revisit the issue of whether to develop an equal pay principle and, if so, its content, after dealing with the merits of the current application. The Full Bench will set down directions for the hearing and determination of the merits of the applications upon the request of any party.
At first instance the Commission found that the appellant's dismissal was in accordance with the Small Business Fair Dismissal Code. It was concluded that the employer believed on reasonable grounds that the appellant's conduct was sufficiently serious to justify immediate dismissal. The application was dismissed.
The appellant submitted that permission to appeal should be granted as the Commissioner's decision contained significant errors of fact that arose from the disclosure of new evidence regarding an alleged break in and theft of documents which came to light after the hearing.
The Full Bench exercised its discretion and determined that an injustice may occur to the appellant if all available evidence was not tested. Permission to appeal was granted and permission to adduce the additional evidence was also given.
At the appeal hearing the appellant submitted that the employer deliberately fabricated evidence to establish the grounds for dismissal and claimed that new evidence proved that the break-in at the employer's office, which was relied upon for the summary dismissal, did not occur. The appellant submitted evidence of email correspondence between the employer and the appellant's new business following his termination. He claimed this email contained a letter from the employer attaching the documents of a former client, including a billing sheet alleged to be one of the key missing documents at the time of the appellant's dismissal. The employer contended that it did not receive a letter from appellant's new business, nor did it send the alleged reply letter, and contended that the letterhead and billing sheet did not conform to those used by it at the time.
Expert IT evidence regarding the employer's computer system led the Full Bench to find that the email was either disguised or fabricated. The Full Bench concluded that the appellant fabricated the email to create a foundation for an allegation that the employer had lied about the break-in and the stolen information. The Full Bench was not satisfied the additional evidence on the email communications altered the validity of the Commissioner's finding.
The Full Bench dismissed the appeal and proposed that a copy of the file be forwarded to the Director of Public Prosecutions due to the serious matters encountered.
The applicant was employed as an apprentice butcher and was in the final year of his apprenticeship. The applicant was dismissed after being charged with being an accessory after the fact to murder.
The employer claimed that his other employees would resign if they were required to work with the applicant and that customers would boycott the store. He also claimed that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) because the applicant had engaged in conduct that caused serious and imminent risk to the reputation, viability or profitability of the business.
The Commission accepted that at the time of the dismissal the employer believed the applicant's actions were sufficiently serious to justify immediate dismissal, however the Commission was not satisfied that the employer had reasonable grounds to form this belief. It found that the dismissal was not consistent with the Code, no reasonable investigation was conducted by the employer, and that there should be no presumption that a criminal conviction (or the possibility thereof) alone is a valid reason for termination.
The Commission gave consideration to the shop’s location in a small country town and the fact that the applicant was the only named offender in the media. While there was a valid reason for dismissal, the Commission found that the process of that dismissal was deficient and the applicant had not been afforded procedural fairness. The Commission found that the dismissal was unfair and ordered compensation equivalent to six weeks' wages.
At first instance the Commission had granted an extension of time for the lodgment of the employee's application for unfair dismissal after making a determination that the employee suffered from post-traumatic stress disorder (PTSD) in the immediate aftermath of her termination.
The grounds for the appeal included that the Commissioner misapplied the test of 'exceptional circumstances' and took into account extraneous or irrelevant matters. It was not clear to the Full Bench on what basis the Commissioner felt qualified to make a determination regarding PTSD in the absence of compelling medical evidence to that effect, finding that medical evidence provided no insight into the extent to which the employee was incapacitated during the entire 205 day period of delay, nor the 21 day period immediately following the termination of her employment.
The Full Bench considered that the decision at first instance was attended by significant error and a denial of natural justice which manifested in an injustice and which attracted the public interest. Permission to appeal was granted, the appeal was upheld and the decision at first instance quashed.
The Full Bench reheard the issue of whether or not there were exceptional circumstances warranting the granting of a further period for the employee to make her unfair dismissal application. With no diagnosis that the employee was suffering from PTSD, and based on the material before the Commission, there was no evidence to support a finding that the employee was incapacitated for the entire period of the 205 day delay. The Full Bench was not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an unfair dismissal application. The application for extension of time was dismissed.
The respondent made an offer to settle the matter at conciliation; however the terms of settlement were to be drawn up by the Commission and were not signed. The applicant later confirmed unconditional acceptance of the offer via email and the parties exchanged emails about the terms of settlement and a draft Statement of Service.
The respondent submitted that through this acceptance the applicant's claim was extinguished. The applicant's representative advised that the agreement was in-principle and was not binding. The respondent provided evidence that settlement monies had been paid to the applicant, however the applicant's representative stated that this payment was unsolicited.
The Commission found that a binding agreement had been reached, but had not been completely fulfilled, with the provision of a Statement of Service still outstanding. Whilst not dismissing the matter immediately, the Commission determined that the application would be dismissed if it received evidence that the Statement of Service was provided within seven days of the decision being made.
In this matter the appellant lodged two appeals against decisions and orders of the Commission to dismiss his applications for orders to stop bullying. At first instance the applications were dismissed on the basis that they had no reasonable prospects of success.
The grounds of appeal were that the applications should not have been dismissed as the appellant wanted the Commission to issue a summary or a statement, not an order to stop the bullying, and this was not considered. The appellant further submitted that the Commissioner erred in deciding that he could not exercise his discretion under s.789FF of the Fair Work Act to make an order to stop bullying, particularly in circumstances where his employment was terminated subsequent to the applications being made.
The Full Bench concluded that no error was made in finding the pre-requisite of a risk that the employee will continue to be bullied 'at work' was not met as the appellant's employment had been terminated prior to him making his applications. The Commission had correctly held at first instance that there were no reasonable prospects that the applications could succeed. The Full Bench was not persuaded the appellant was denied procedural fairness, nor that the decisions of the Commission in Shaw and Obatoki were plainly wrong.
The Full Bench was not persuaded it was in the public interest to grant permission to appeal and permission to appeal was refused.
Three employees (the applicants) of DP World Melbourne Limited (DP World), each made an application to the Commission for an order to stop bullying. The applicants' Points of Claim set out the various alleged incidents of unreasonable behaviour on which they relied, including allegations of conduct engaged in by individuals who are, or were, employees of DP World, members of the MUA and/or officials of the MUA.
The Commission decided to 'not chronicle the conduct engaged in during the period between mid-2013 and July 2015, that it happened, is something about which no respondent party to these proceedings should be proud'. The Commission was satisfied that each applicant was subjected repeatedly to unreasonable behaviour, engaged in by an individual or a group of individuals, and that behaviour created a risk to their health and safety. For a period of over nine months the applicants had been on on-going special leave and since the cessation of the special leave, each of the applicants had taken various forms of authorised leave.
The Commission found that DP World had taken some steps to reduce or mitigate the risk of further bullying, however the applicants identified five broad issues which they said had not been dealt with and continued to manifest at the applicants' workplace. These were the code of silence and workplace culture, inadequate workplace investigations, incomplete investigations and delay, and inadequate return to work plans and risk assessments.
The Commission was satisfied that when the applicants returned to work, there was a risk that each of them would be bullied by some members of the group of individuals which had previously engaged in the bullying behaviour directed towards the applicants. The risk was a real risk, but the Commission was not satisfied there was an imminent risk to the applicants' health or safety if they returned to work.
The Commission found that orders to stop bullying were appropriate to prevent the applicants from being bullied at work.
Elections for offices within registered organisations are conducted by the Australian Electoral Commission (the AEC) unless an exemption has been issued by the Commission. The Queensland District Branch (the Branch) of the Mining and Energy Division (the Division) of the CFMEU was granted an exemption on 2 May 1996, which allowed it to conduct internal elections to fill its vacant offices, rather than refer them to the AEC.
The General Manager of the Commission can revoke an election exemption, and can delegate her power to do this to another officer of the Commission. The General Manager has delegated her powers to revoke such an exemption to Mr Chris Enright (the Delegate), Director of the Regulatory Compliance Branch of the Commission.
The General Manager received an anonymous complaint about the conduct of elections by the Division and the Branch. An inquiry into the allegations was conducted by the Regulatory Compliance Branch, who identified two issues for the Delegate’s consideration.
First, whether a notice should be issued and a hearing conducted for the Division to show cause why the Commission should not revoke the Branch’s secret postal ballot exemption (that allows the Division to conduct attendance ballots) under s.144 of the Fair Work (Registered Organisations) Act 2009 (the RO Act). Second, whether to issue a notice and conduct a hearing for the Branch to show cause why the Commission should not revoke the Branch’s AEC exemption under s.186(2)(b) of the RO Act.
The Delegate issued a Notice to Show Cause to the Committee of Management of the Branch with a Statement of Reasons for the proposed revocation of the exemption. A hearing was conducted to provide the Committee of Management of the Branch with an opportunity to show cause as to why the exemption should not be revoked. Extensive submissions were made in relation to this matter on behalf of both the Branch and Division.
The Delegate was not satisfied that if the Queensland District Branch was exempted from having its elections conducted by the AEC under s.186(1) of the RO Act, that elections for the Branch will be conducted under the rules of the Division The exemption was revoked.
Note: An appeal was lodged against this decision. The Full Bench of the Commission found that each ground of appeal lacked merit and was dismissed.
At first instance the Commission decided to revoke the right of entry permits previously issued to Diana Asmar and Nick Katsis on the basis that they had made false declarations and failed to complete the requisite training.
The appellants appealed on the basis of five alleged legal errors, submitting that the Vice President:
Permission to appeal was granted by the Full Bench on the basis that the appeal raised novel and important issues.
The Full Bench was not satisfied of any indication of bias or lack of procedural fairness. It was satisfied that findings on fitness and propriety were not required for revocation of permits, that no legal error arose by not considering Asmar's curriculum vitae, and that the Commission had not considered irrelevant material.
The decision at first instance was also appealed on basis of three alleged factual errors, submitting that there was no proper basis on which to find that Asmar and Katsis did not complete their own right of entry tests, and that it was erroneous to rely on ACTU data in order to support those findings. The Full Bench was not satisfied that these alleged errors of fact were made out.
The Full Bench rejected all the appellants' grounds of appeal. The appeal was dismissed and the Branch had seven days to provide the Full Bench with advice as to what further action it wished to take in respect of the applications.
The applicant in an unfair dismissal matter made an application for the recusal of the Commission Member dealing with her matter on grounds of apprehended and actual bias. The applicant submitted that the presence of security at the hearing was a ground of bias, and that the manner in which the Commission Member dealt with the applicant's cross-examination of witnesses constituted interference. She asserted that the Member gave differential treatment to the applicant and the respondent's representative, and that Commission Member allowed the respondent's representative to abuse her.
Regarding the presence of security, the Commission found that no conclusion could reasonably be drawn that the Member had a pre-conceived view about the validity of the reason for the applicant's dismissal, rather that reasonable precautions were taken to protect the Member and Commission staff from the applicant who had displayed aggression towards Commission staff and made apparently inflammatory statements about a witness due to give evidence in the hearing. A fair minded lay observer would not apprehend that a request for security meant that the Member would not bring an impartial mind.
The Commission did not accept that the way in which the Member dealt with the applicant's cross-examination of witnesses could be a basis for a conclusion of bias, or a reasonable apprehension of bias. The Commission did not accept that a fair minded, informed observer could reasonably consider that the Member failed to intervene to protect the applicant from allegedly abusive behaviour by the respondent’s representative, or that any alleged action or inaction by the Member could reasonably lead to a conclusion of differential treatment. The Commission found that the treatment of the representatives was based entirely on their conduct.
The Commission found no reasonable basis for a conclusion that the Member had a closed mind or had prejudged the applicant's application, or could not have been swayed by evidence that the applicant may have submitted. It found that a lay observer would have observed the applicant conducting herself in an entirely inappropriate manner and failing to take the opportunities given to present her case. The application for the recusal of the Member was refused.
Three employees (the applicants) of DP World Melbourne Limited (DP World) each made an application to the Commission for an order to stop bullying. The Commission made an order for DP World to produce documents. In producing these documents, DP World identified a number of documents that were the subject of a claim of legal professional privilege.
The documents consist of 16 pieces of email correspondence, some containing attachments (the Gunzburg Communications), passing between Seyfarth Shaw, the solicitors for DP World in these proceedings, and Mr David Gunzburg, the Principal of DGHR Services. Mr Gunzburg was engaged by Seyfarth Shaw to investigate and report on allegations contained in complaints made by the applicants.
The relevant principles for legal professional privilege were considered by the Commission, concluding that the Gunzburg Communications came into existence for the purpose of enabling the solicitors for DP World to provide legal advice about the applicants' complaints.
The claim of legal professional privilege, or client legal privilege, was upheld by the Commission except for two documents. The applicants' request for access to the other documents was denied.
On 15 December 2015 the RSRT issued a road safety remuneration order (RSRO) on minimum payments for contractor drivers.
The Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (2016 RSRO) will take effect from 4 April 2016 and will, for the first time, set national minimum payments for certain contractor drivers in the road transport industry, specifically drivers involved in:
The order also imposes requirements on the hirers of those contractor drivers and participants in the supply chain.
The making of the 2016 RSRO comes after extensive consultation with interested parties on the issue of minimum payments for contractor drivers and the publication of a draft RSRO in August 2015.
The 2016 RSRO includes clauses regarding:
To assist parties to calculate the correct minimum payments under the 2016 RSRO, the Tribunal will publish an online payments calculator on its website in early 2016.
This section provides summaries of a number of Federal Court reviews of Commission decisions.
The Federal Court found that a Full Bench was correct in dismissing an unfair dismissal application where the applicant had refused to attend a medical examination upon returning to work.
The employer was held to have acted lawfully and reasonably in directing the applicant to attend a medical examination in line with its obligations under the Coal Mining Safety and Health Act 1999. The Court stated that as a general proposition a person is not obliged to submit to a medical examination without his or her consent, however legislation can require a person to submit where it is clear and unambiguous. The application was dismissed.
A Full Federal Court has ruled to overturn the decision of a Full Bench rejecting an application to reduce the redundancy payment of two employees.
The Court found that the Full Bench fell into error in its interpretation of 'acceptable employment' under s.120(1)(b)(i) of the Fair Work Act. It held that in determining what is 'acceptable', regard is to be had to the particular circumstances of the employees and 'what might be acceptable employment for one employee will not necessarily be acceptable employment for another'. That the employer was 'late' in offering the employees the positions at the alternative sites was not a relevant consideration for determining this question.
The Court quashed the decision of the Full Bench and directed the Commission to hear and determine the applicants' applications according to the correct interpretation.
Under s.156 of the Fair Work Act the Commission is required to review all modern awards every 4 years. All material in relation to the 4 yearly 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 for a further 33 awards allocated to Group 3 of the award stage were published for comment during the last quarter. A edicated page for each of the awards under reivew has been created.
Two decisions relating to technical and drafting matters in the exposure drafts, covering casual loading and the issues in the remaining Group 1 awards were issued during the quarter. Decisions relating to alleged inconsistencies with the National Employment Standards (decision  FWCFB 191) and substantive issues in the Pastoral Award 2010 (decision  FWCFB 8810) were also issued.
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 33 days of hearings in 2015 with 140 lay and expert witnesses providing evidence. The matter is listed for 10 further days in April 2016 to hear final arguments.
In order to give interested persons who are not a party to the matter an opportunity to participate in the review, a Statement and further directions were issued on 15 January 2016 inviting them to make a written contribution by 17 February.
The ACTU made two applications by to insert provisions into modern awards regarding the family and domestic violence common issue and family friendly work arrangements as part of the 4 yearly review. A Full Bench handed down a decision on 22 October 2015 regarding the jurisdictional issues surrounding these claims. Subsequently, directions were issued calling for submissions and listing the matters for hearing later in 2016 and 2017.
Two statements were issued inviting interested persons to make submissions on the issue of multiple award coverage, in particular how any difficulties arising from such a circumstance could potentially be addressed by the insertion of a 'majority clause' in modern awards.
In July the Commission issued a decision [ FWCFB 4466] dealing with the variation of modern awards regarding time off in lieu of payment for overtime (TOIL) and make-up time in which the Full Bench set out a provisional model term dealing with TOIL. Interested parties were provided with an opportunity to comment on the model term. The Full Bench finalised the terms of the model TOIL term and at hearings in December parties were provided with an opportunity to make further submissions and adduce evidence regarding the insertion of the term in each award.
Two new modern enterprise awards in the grain handling industry have been made. There are now 122 modern industry and occupational awards, 11 enterprise awards and four State reference public sector modern awards. You can access a full list of awards on the Commission's website.
The matter referred back to the Commission from the Federal Court in  FCAFC 95 relating to the making of a modern award to replace the enterprise award covering CSR Limited was determined by a Full Bench. The Full Bench dismissed the application in decision  FWCFB 6463 and the CSR Staff (Consolidated) Award 2000 was terminated.
In a Statement issued on 29 October 2015, the Commission released the timetable for the plain language pilot and the instructions for the plain language drafting services and user testing services. The draft will be prepared by Mr Eamonn Moran QC PSM based on the updated Pharmacy Award exposure draft.
Parties to matter AM2014/209 will be invited to provide feedback on the draft plain language award-specific clauses via a submission process and a conference prior to user testing with employers and employees covered by the Pharmacy Award. A report on the Pilot will be published in April 2016 along with the plain language draft of the Revised exposure draft.
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.
A draft practice note relating to orders to attend and orders to produce is now available for comment.
The purpose of the practice note is to provide procedural guidance for the process for requesting such orders, and the procedures followed by the Commission in making and giving effect to these orders.
Please forward any comments on the draft practice note to email@example.com by the close of business on Friday, 19 February 2016.
The Pay Equity Unit published two reports as part of its 2014–15 Work Program in December 2015:
Access these reports on the Pay equity research page.
Research into multiple modern award coverage has been commissioned to inform the 4 yearly review.
An international comparison of minimum wages and labour market outcomes report is to be published by the end of February to inform the 2015–16 Annual Wage Review.
For more detail see the Annual wage review 2015–16 research page.
The Fair Work Amendment Act 2015 came into force on 27 November 2015, introducing changes to the Fair Work Act in relation to:
Good faith bargaining obligations have been introduced for greenfields agreements, and employers can take a proposed greenfields agreement to the Commission for approval if no agreement was reached within the six month negotiation period.
Employees will not be able to take protected industrial action before bargaining starts, as the Commission can only grant a protection action ballot order after the employer initiates bargaining for a new enterprise agreement and the Notice of Employee Representational Rights has been given.
Employers will be prevented from refusing employee requests for unpaid parental leave without first holding discussions with the employees. The existing right for an employer to refuse a request for unpaid parent parental leave on reasonable business grounds remains.
The Fair Work Ombudsman is required to pay interest on unclaimed monies owed to former employees who cannot be contacted. Interest will be paid on amounts exceeding $100 that have been held for more than six months.
The Government has announced four appointments to the Fair Work Commission, including two new Deputy Presidents and two new Commissioners. Ms Melanie Binet and Mr Richard Clancy have been appointed as Deputy Presidents, and Ms Katrina Harper-Greenwell and Ms Jennifer Hunt have been appointed as Commissioners. The term of Perth-based acting Commissioner Danny Cloghan has also been extended until 31 October 2016.
Ms Binet was formerly the Principal and Director of Legal Services at Perth based law firm, Gregor & Binet. Deputy President Binet is based in the Perth office.
Mr Clancy was formerly the Director of Workplace Relations for the Australian Chamber of Commerce and Industry. Deputy President Clancy is based in the Melbourne office.
Ms Harper-Greenwell was formerly operating her own HR/IR consultancy, Greenwell Workplace Relations. Commissioner Harper-Greenwell is based in the Melbourne office.
Ms Hunt was formerly the Employee and Industrial Relations Manager for Toll Holdings Ltd. Commissioner Hunt is based in the Brisbane office.
The Fair Work Commission recently announced changes to its panel system, effective from Monday 16 November 2015.
The most significant change was the merger of the current Transport and Logistics Panel with the Mining, Agriculture and Electric Power Panel to form the new Services and Mining Panel, with Senior Deputy President Hamberger as Panel Head.
In addition, Vice President Watson will head the Major Projects Panel and Health and related industries will move from the Media, Ports, Oils and Gas Panel to the Government Services Panel, under Vice President Catanzariti as Panel Head.
The Commission will also move to a model of regional industry allocation in South Australia and Western Australia. All panel matters in these states will be allocated to local members by Senior Deputy President O’Callaghan.
A new Fair Work Commission website is expected to be launched in late February.
The changes we will make to our website have been prioritised based on the feedback we received from both the general public and stakeholders during our usability review process earlier this year.
As a result of this review our focus is on improving four major areas of the website including:
More information, including quick links to help regular users change any bookmarked pages, will be sent to website subscribers the week before the new site goes live and located prominently on the new site.
In order to support the changing needs of our website users, we will continue to review and update our site on a regular basis and would appreciate any feedback on how we can continue to improve the site. There is a feedback form on most website pages.
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 firstname.lastname@example.org.