Fair Work Commission

Welcome

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 engagement@fwc.gov.au.

The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 July 2018 and 30 September 2018.

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

Dismissal matters

Unfair dismissal matters

Star v WorkPac P/L t/a WorkPac Group

Background

The applicant in this unfair dismissal application worked as a casual Machinery Operator at the Goonyella Riverside Mine for WorkPac, a labour hire company. WorkPac was directed by its client, BHP Billiton Mitsubishi Alliance (BMA), to remove the applicant from their site. When the applicant asked WorkPac why this was occurring, a WorkPac representative said that she did not know the reason, but that the ‘demobilisation’ was not related to the applicant’s performance. The representative also said that she would email a termination letter to the applicant. The applicant understood from this conversation that her employment was terminated. The applicant had no ongoing employment or income from WorkPac after that point.

Outcome

The Commission found that the applicant was dismissed when WorkPac complied with BMA’s direction to remove her from their site. The Commission considered whether WorkPac had a valid reason for the dismissal related to the applicant’s capacity or conduct. The Commission found that there was an inference that a conduct issue related to the direction to remove the applicant from the site existed, however WorkPac failed to make any enquiry of BMA to establish the reasons. On the balance of probabilities the Commission found the reason for the direction to remove the applicant from the site was related to conduct.

The Commission found there was no valid reason for the removal of the applicant from the site leading up to the dismissal, and that WorkPac failed to consider alternative assignments before terminating the applicant’s employment. The Commission found that the dismissal was unfair. The Commission held the provisional view, with some reservations, that reinstatement was an appropriate remedy. The Commission provided an opportunity for the parties to consider their positions in relation to reinstatement.

Read decision [2018] FWC 4991.

Update

On 22 October 2018 the Federal Court of Australia issued an interlocutory ruling restraining BMA from stopping the applicant from being returned to their site pending the hearing and determination of this matter or further order.

In response the Commission issued an order reinstating the applicant to the position in which she was employed immediately before the dismissal, and ordering that WorkPac maintain continuity of service for the applicant from the date of termination of her employment to the date of reinstatement.

Read Federal Court decision [2018] FCA 1590, read Federal Court order (PDF), read Commission order [PR701622].

Appeal by TIOBE P/L t/a TIOBE against decision [[2018] FWC 4173] and order [PR609148] Re: Chen

Background

At first instance in this matter the Commission found that the employee had been unfairly dismissed and ordered compensation of $70,000. TIOBE appealed and advanced six grounds of appeal, including that the Commission erred in failing to determine or be satisfied in accordance with s.385(c) of the Fair Work Act that the dismissal was not consistent with the Small Business Fair Dismissal Code (the Code), and by failing to decide in accordance with s.396(c) that the dismissal was not consistent with the Code before considering the merits of the applicant’s application.

Section 385 sets out the requirements which must be satisfied in order for the Commission to find that a person has been unfairly dismissed. In Clermont Coal Pty Ltd v Brown Jessup J of the Federal Court observed that ‘the requirements of this section [ie s.385] … depend upon the Commission itself being satisfied of the state of affairs referred to’. It was not in dispute that TIOBE was a ‘small business employer’ at the time of the employee’s dismissal. At first instance the Commissioner indicated she was satisfied the appellant was a small business, but concluded that the Code did not apply because the appellant did not contend that the dismissal was consistent with the Code.

The appellant submitted that the fact that it may not have contended that the dismissal was consistent with the Code did not relieve the Commission of the statutory obligation to actively consider and determine whether the Code was complied with. The appellant further submitted that the Commission has an obligation to actively consider and determine the question of compliance with the Code in circumstances where the employer is a small business. The Full Bench agreed with this proposition. The Commission has an obligation, in all matters, to satisfy itself that it has the requisite jurisdiction to perform a particular function [Hewitt v Topero Nominees].

Outcome

The Full Bench held that the Commission made an error in not first considering whether the dismissal was consistent with the Code, before turning to deal with whether the dismissal was unfair. The Full Bench considered Ryman with regard to the application of the ‘Summary Dismissal’ section of the Code.

The Full Bench found it was arguable that the error could have made a difference to the outcome. The Full Bench found it was in the public interest to grant permission to appeal and permission to appeal was granted. The appeal was upheld on the basis of the error identified. The Decision and Order at first instance were quashed and the application for an unfair dismissal remedy referred back to Bissett C for rehearing.

The Full Bench held it was not necessary to consider the remaining grounds of appeal, however given the nature of the issues raised, found it appropriate to make some general observations regarding the Commission’s obligation to provide a fair hearing.

The Commission is obliged to perform its functions and exercise its powers in a manner that is fair, just and quick. Members have a positive duty to provide appropriate assistance to litigants in person, whether they are applicants or small business respondents. The degree of assistance which must be afforded depends on the context, and the duty to assist may extend to issues of law as well as procedure. The Full Bench said it was necessary to balance the interests of litigants who represent themselves with the need to afford procedural fairness to other parties. In the context of the present matter it would have been appropriate for the Commission to have drawn the Code to the parties’ attention (and provided them with a copy of the Code), and inquired whether the appellant submitted that the dismissal was consistent with the Code.

Read decision [2018] FWCFB 5726.

Bargaining & Agreement making matters

Enterprise bargaining matters

Appeal by National Tertiary Education Industry Union against decision and order [[2018] FWC 3020], [PR607481] Re: Charles Darwin University

Background

At first instance in this matter the Commission made a protected action ballot order. The University sought that the period of written notice of action be five working days instead of three as specified in s.414(2)(a) of the Fair Work Act. The Commission granted the request.

The union appealed against the decision of the Commission to require an extended period of notice. The grounds for the appeal included that the Commission misconstrued the term ‘exceptional circumstances’ in s.443(5), based on an assessment that the University ‘would’ apply to suspend or terminate industrial action and that the Commission ‘would’ more likely than not accede to such an application. The appeal also included a ground that the Commission failed to engage in any assessment of whether there were exceptional circumstances which justified the period of written notice being longer than three working days.

Outcome

The Full Bench held that the Commission was required to evaluate whether the particular identified circumstances were ‘exceptional circumstances’, and was also required to determine whether those circumstances justified a longer period of notice. The Full Bench found that the Commission erred. Permission to appeal was granted and the appeal was upheld. The part of the decision at first instance that required the written notice of certain industrial action to be given other than in accordance with s.414(2)(a) was quashed. The requirement for five working days’ notice was deleted from the Order.

Read decision [2018] FWCFB 4011.

Enterprise agreement matters

Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decision [[2018] FWCA 802] Re: Dawsons Maintenance Contractors P/L

Background

At first instance the Commission approved the Dawsons Maintenance Contractors Enterprise Agreement 2017 with undertakings. During the approval process the Commission had restricted the CFMMEU to only making submissions in relation to the BOOT, due to it not being a bargaining representative. The CFMMEU appealed the approval decision. The CFMMEU was granted standing to appeal and was permitted to argue a case that it did not raise at first instance due to the restriction placed on it [ASU v Yarra Valley Water Corporation]. Permission to appeal was granted in relation to the first appeal ground, namely the question of whether employees had access to materials referenced in the agreement [One Key].

Outcome

The Full Bench was not satisfied that s.180(2) of the Fair Work Act was complied with. No evidence was provided to show that the subjects, for which undertakings had been given and accepted, were identified to employees, let alone explained to them in accordance with s.180(5). The Full Bench found that the Commission erred in finding that the requirements of s.180(5) had been met. The jurisdictional prerequisite requirements under s.186(2)(a) were not satisfied. The appeal was upheld and the approval decision was quashed. The application for approval of the agreement was dismissed.

Read decision [2018] FWCFB 2992.

Applications to approve enterprise agreements – NES precedence terms

The increasing proportion of enterprise agreements requiring undertakings to address deficiencies is impacting on the time it is taking the Commission to finalise applications for approval of agreements. Many of these undertakings are requested when an agreement provides entitlements that are inconsistent with, or less beneficial than the National Employment Standards (NES). In order to reduce the incidence of Members requesting undertakings, it may assist if a term is included in an enterprise agreement when it is made providing that where there is any inconsistency, more generous entitlements under the NES will prevail over provisions in an agreement.

An example of an NES precedence term that could be included in an agreement is set out below:

This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

Before finalising the terms of your agreement, please refer to the resources on our website at Making an agreement including 10 Tips for agreement making.

If you have an enquiry about the progress of an agreement that has been lodged with the Commission please email AgreementsProgressEnquiry@fwc.gov.au.

If you would like any assistance with making your enterprise agreement please contact us at member.assist@fwc.gov.au.

Disputes & Industrial action matters

Dispute resolution matters

Appeal by Unilever Australia Trading Limited against [[2018] FWC 1150] Re: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Background

This matter relates to a dispute under the Unilever Australia Trading Limited Tatura Site-Enterprise Agreement 2015 regarding whether periods of service as casual or seasonal employees should count as service for the purpose of determining entitlements to redundancy payments under the Agreement. The Commission found that ‘service’ had an ordinary meaning of a period of employment with an employer, which included periods of ‘contiguous casual, seasonal and permanent employment’.

Outcome

The Full Bench held in relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next.

Attachment 4 to the Agreement contains a ‘redundancy agreement’. Clause 1 of the attachment states that the redundancy agreement ‘does not apply to casual or seasonal employees’. The Full Bench held that the exclusion of casual or seasonal workers in clause 1 was clear and of general application. The Commission had made an error in finding that the clause 1 exclusion related only to the entitlement to payment and not the calculation of service. This distinguished this case from Donau, which should not be seen as establishing any principle about the application of s.22 of the Fair Work Act to casual employment, or to the approach to calculating service in enterprise agreements. The appeal was upheld and the decision at first instance quashed.

The AMWU’s application under s.739 was determined by further decision of the Full Bench that service of casual and seasonal employees does not count as service for the purpose of calculating redundancy payments pursuant to clause 2.7 of Attachment 4 of the Agreement.

Read decision [2018] FWCFB 4463.

Australian Worker’s Union, The v AstraZeneca P/L

Background

This dispute under terms of the AstraZeneca Enterprise Agreement 2016 related to whether the respondent’s approach to accruing and deducting personal/carer’s leave for shift workers was consistent with the National Employment Standard (NES) entitlement of 10 days per year. The AWU contended that the respondent calculated the entitlement in terms of hours not days, and submitted that because employees worked under three rostering systems, working either 12, 10.28 or 8 hours per shift, they would exhaust their annual entitlement within 6, 7 or 9.5 shifts. The AWU contended that this entitlement was inferior to the NES minimum standard and relied on decisions made in RACV and Glendell Mining.

The respondent argued that it had focused on the question of payment of leave, not on the entitlement, and contended that the AWU ignored the system of averaging permitted under s.63 of the Fair Work Act. The respondent proposed that the total entitlement was limited to the number of hours accrued and asserted that the amount deducted in respect of an absence must reflect the number of hours an employee is paid. The respondent relied on the Fair Work Act Explanatory Memorandum and a number of decisions including RACV.

The parties were also invited to make further submissions in relation to the decision of the Commission in Mondelez.

Outcome

The Commission held that regarding the accrual of personal/carer’s leave, the entitlement is to 10 days of personal/carer’s leave per annum. Regarding the deduction and payment of personal/carer’s leave, the Commission considered that these matters had been addressed in RACV and Anglo Coal. The Commission held that the entitlement is expressed in days not hours, and noted that the entitlement may result in a greater entitlement and overall pay in some cases. Determined in accordance with RACV, employees are entitled to 10 days’ personal/carers leave per annum, and a day of leave is deducted when a day of leave is taken. Employees working 12, 10.28 or 8 hour shifts will be paid 12, 10.28 or 8 ordinary hours’ pay respectively for each rostered day on which leave is taken.

Read decision [2018] FWC 4660.

Industrial action matters

Esso Australia P/L v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Ors

Background

This matter relates to an application to revoke an order made under s.424 terminating industrial action. Since late 2014 and until 7 December 2016, The Australian Workers’ Union (the AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the AMWU (collectively ‘the Unions’), had been bargaining with Esso for a proposed enterprise agreement or agreements that would replace the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (the Longford & LIP Agreement) and the Esso Offshore Enterprise Agreement 2011 (the Offshore Agreement).

The AWU organised, and many of its members engaged in, various forms of industrial action directed against Esso. The AWU maintained that all such industrial action was protected industrial action. Esso maintained that some aspects of the industrial action were not protected industrial action. The disputed industrial action included bans on the performance of equipment testing, air freeing and leak testing. Esso obtained a number of orders from the Commission directed to the AWU stopping unprotected industrial action, including an order obtained on 6 March 2015 [PR561701] (the IA Order). In contravention of the IA Order, the AWU continued to organise industrial action.

Esso commenced proceedings in the Federal Court of Australia. The Court rejected Esso’s claim. Esso then appealed to the Full Court of the Federal Court. The Full Court dismissed the appeal on 25 May 2016. Then, on 21 June 2016 Esso filed an application for special leave to appeal particular orders of the judgment of the Full Court in the High Court of Australia.

On 30 November 2016, the Unions served on Esso notices of intention to take protected industrial action. On 7 December 2016, Watson VP made an order to terminate the protected industrial action [PR588352]. The applications giving rise to the Order were made by the Minister for Industrial Relations for the State of Victoria (The Minister).

Esso’s special leave application to the High Court had not, at this stage, been heard. During the course of hearing the Minister’s applications, Esso accepted that the Full Court’s judgment in Esso Australia Pty Ltd v Australian Workers’ Union was binding on the Commission at that time. The Full Bench, as currently constituted, was convened to deal with making an ensuing workplace determination as contemplated by s.266 of the Fair Work Act.

On 6 December 2017, the High Court delivered its judgment in Esso Australia Pty Ltd v The Australian Workers’ Union in which a majority of the Court allowed an appeal by Esso. The High Court held that the industrial action organised by the AWU, in relation to a replacement enterprise agreement (or agreements) for the Longford & LIP Agreement and the Offshore Agreement, was not protected industrial action subsequent to the AWU’s contravention on 6 March 2015 of the IA Order.

Esso applied under s.603 for an order revoking the Order made by Watson VP on 7 December 2016 [PR588352]. The Minister and the Unions opposed revocation.

Outcome

The Full Bench held that taking unprotected industrial action should not result in the making of a workplace determination. The discretionary matters which pointed in favour of the exercise of discretion to revoke the Order outweighed those going the other way. The Full Bench revoked the Order with effect on and from the date on which it was made (7 December 2016).

The parties were encouraged to engage in immediate discussions with a view to concluding an enterprise agreement to replace the Offshore Agreement. The Full Bench was prepared to convene a conference to advise the parties of its views on the likely form of the workplace determination that would have been made. The Full Bench was prepared to set out the likely form of that workplace determination in a recommendation, if the parties provided an indication that they would each accept the recommendation and allow employees the opportunity to vote to approve an enterprise agreement consistent with that recommendation.

Read decision [2018] FWCFB 4120.

Procedural matters

Application by Metropolitan Fire and Emergency Services Board

Background

This matter relates to an application by the Metropolitan and Fire and Emergency Services Board (the MFESB) for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016. The Minister for Small and Family Business, the Workplace and Deregulation (the Minister) contended that the Agreement contained discriminatory and objectionable terms directed at part-time employees and employees entitled to flexible working arrangements. The Minister, and the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC) filed submissions, and the Minister filed evidentiary material in objection to approval. The MFESB and the United Firefighters Union of Australia (the UFU) raised objections to both the Minister’s and the VEOHRC’s material.

Outcome

The Commission considered whether the Minister should be permitted to adduce evidence. The UFU opposed the grant of leave to the Minister to do so, contending that the material sought to be relied upon by Minister from the AMOD Review was of little relevance. The MFESB contended that the materials which the Minister sought to rely on were of little value in the context of this proceeding, however it did not object to the Commission receiving it.

The Commission considered the rules of evidence and the complexity of the issue. The Commission allowed the Minister to tender material and adduce evidence from witnesses foreshadowed in order to inform itself. The Commission held that whether the material was ultimately relevant need not be determined at that time, rather, that issue would be determined in light of all of the evidence and after the full argument on the issues at the scheduled hearing.

Read decision [2018] FWC 3942.

Appeal by Logan City Electrical Services Division P/L t/a Logan City Electrical against decision [[2017] FWC 3801] Re: Antonarakis

Background

At first instance in this matter the Commission found that the dismissal was unfair. The application was treated as uncontested as the appellant did not respond to the Commission’s correspondence, or attend any conferences or hearings. The appellant lodged its appeal 294 days after the prescribed 21 day time period. The appellant submitted that the Commission erred in deciding that the application was uncontested, because the appellant had not been served with the application or written notification of the hearing.

The Full Bench considered whether there was a satisfactory reason for the delay. The Commission’s records confirmed that correspondence was sent to the appellant via post, email and telephone. The Director and Secretary of the appellant claimed that he was regularly out of the office, and was unaware of the Commission’s decision at the time.

Outcome

The Full Bench rejected the appellant’s evidence, finding it implausible that no correspondence had been received or passed on to the appellant. The Full Bench was not satisfied that the appellant had provided a satisfactory reason for the delay. The Full Bench was satisfied that the appellant was aware of the application, and chose to ignore it. The Full Bench was also satisfied that the appeal had little prospect of success, and held that it was not in the interests of justice to extend time to appeal. The application was dismissed.

Read decision [2018] FWCFB 3815.

Dempster v Interflow t/a Interflow P/L

Background

The applicant in this matter made an application to deal with an unlawful termination dispute. The respondent opposed the application and raised two jurisdictional issues: that the application was statute-barred by s.723 of the Fair Work Act on the ground that the applicant was a person entitled to make a general protections court application in relation to his alleged dismissal, and that the application was lodged out of time.

Outcome

The Commission found that the respondent was a constitutional corporation, and therefore the applicant was entitled to make an application under s.365 (a general protections dismissal dispute). Section 723 provides that a person ‘must not make’ a s.773 application if the person is entitled to make a general protections court application. The Commission held that the application was statute-barred and not competent in a legal sense. The Commission had no jurisdiction to further hear and determine the application. The application was dismissed.

Read decision [2018] FWC 4962.

Appeal by the Entrance Red Bus Services P/L t/a Red Bus Services against decision [[2018] FWC 1812] Re: Cahill

Background

At first instance the Commission found that the employee’s dismissal was unfair and ordered reinstatement and continuity of service. The employee was dismissed on the basis of his conduct at a disciplinary meeting. The Commission preferred the employee’s evidence of the meeting where it was inconsistent with the appellant’s, and found the appellant’s decision to terminate was a ‘rash decision’.

Outcome

The grounds of appeal included admission of hearsay evidence; the appropriateness of reinstatement; and questions involving the admissibility of new evidence. The application to admit new evidence by the appellant was refused by the Full Bench. The new evidence was not prepared at the time of filing of the appeal. The Full Bench held it was not appropriate for material to be admitted as new evidence on appeal when it was available at the time of the first instance hearing.

The Full Bench was unable to discern any errors of fact that the order for reinstatement was inappropriate, or of law of admission of evidence. The Full Bench was satisfied that the correct legal principles were followed. The Full Bench was not satisfied it was in the public interest to grant permission to appeal. Permission to appeal was refused.

Read decision [2018] FWCFB 5008.

Appeal by Roads and Maritime Services against decision [[2018] FWC 3584] Re: Leeman

Background

At first instance the appellant submitted that the Commission had no jurisdiction to deal with an application for an order to stop bullying as the employee was not ‘at work’, and the appellant was not a ‘constitutionally-covered business’. The Commission rejected that the employee was not ‘at work’ and found that the appellant was a ‘constitutionally-covered business’ as a trading corporation.

Outcome

The Full Bench considered authorities concerning the characterisation of a trading corporation including UFU v CFA, Bankstown, and Aboriginal Legal Service. The Full Bench further considered whether the appellant’s trading activities were substantial enough to characterise it as a trading corporation under s.51(xx) of Constitution. The Full Bench found that revenue was generated through trading activities, and the appellant’s trading activities were substantial and significant.

The appellant was not deprived of its trading corporation character by reference to the purposes for which it was established, its closeness to the State of NSW, the fact that it may be subject to Ministerial direction, or that its functions are predominantly for the public good and not commercially orientated [St George County Council], [Tasmanian Dam Case]. The Full Bench found that the predominance of the appellant’s public functions did not exclude the proposition that it was a trading corporation by virtue of the substantial nature of its trading activities. The Full Bench held that the characterisation of the appellant as a ‘trading corporation’ at first instance was not in error. The appeal was dismissed.

Read decision [2018] FWCFB 5772.

Award modernisation – 4 yearly review

Award specific Penalty Rates – General Retail Industry Award 2010

[AM2017/43]

Hearings were held in the first half of 2018 for two concurrent claims relating to the General Retail Industry Award 2010.

The Retail Associations’ claim

The Retail Associations sought to reduce the rates payable for shiftwork on Sundays from 200 per cent to 175 per cent (for full-time and part-time shiftworkers) and from 225 per cent to 200 per cent for casual shiftworkers.

The Full Bench noted that in the event that the Sunday shiftwork penalty rates were reduced, shiftworkers working on Sundays would still receive ‘additional remuneration’.

The Full Bench determined that the current Sunday shiftwork penalty rates were neither fair nor relevant, and were not ‘proportional to the disability’.

The Full Bench decided to reduce the Sunday penalty rate from 200 per cent to 175 per cent, for full-time and part-time shiftworkers, and from 225 per cent to 200 per cent, for casual shiftworkers.

Transitional arrangements for the reduction are set out in Chapter 7 of the Decision.

The SDA’s claim

The Shop, Distributive and Allied Employees’ Association (SDA) sought an additional 25 per cent in penalty rates for casuals who work on a Saturday, and after 6pm Monday to Friday.

The Full Bench noted that casual loadings and penalty rates are separate and distinct forms of compensation for different disabilities, with penalty rates compensating for the disability (or disutility) associated with the time at which work is performed.

The Full Bench determined that the current penalty rates lacked logic and merit, were neither fair nor relevant, and were not proportionate to the disability experienced by casual employees working Monday to Friday evenings and Saturdays.

The Full Bench decided to increase the penalty rates for casual employees working evenings (Monday to Friday) and on Saturdays from 25 per cent to 50 per cent.

Transitional arrangements for the increases are set out in Chapter 7 of the Decision.

Read decision [2018] FWCFB 5897.

Award specific Penalty Rates – Registered and Licensed Clubs Award 2010 & the Hospitality Industry (General) Award 2010

[AM2017/39]

Clubs Australia Industrial (CAI) applied to vary the Hospitality Award, and if those variations were made, to then revoke the Clubs Award. A large number of submissions were received from individual clubs opposing the proposed merger of the two awards.

The Full Bench heard evidence in this matter over six days in July 2018. Prior to the hearing listed for final submissions on 11 and 12 July 2018, CAI advised that it was no longer pressing for the adoption of certain provisions of its proposed revised Hospitality Award. CAI also advanced certain alternative positions on a number of other club-specific provisions.

A number of opposing parties sought to have the matter adjourned to permit additional evidence. The adjournment was granted.

The Full Bench issued further Directions on 11 July 2018 providing parties the opportunity to submit additional evidence and submissions. The Full Bench also issued a Statement on 11 July 2018 setting out some issues that the parties might consider in providing any additional evidence or submissions.

Further hearings are listed for October and November 2018.

Read Statement [2018] FWCFB 4116 and read Directions (PDF).

Casual & Part-time Employment

[AM2014/196], [AM2014/197]

Further decisions in this matter were issued on 9 August 2018 and 21 September 2018. A number of outstanding issues arising from earlier decisions (in July 2017 and November 2017) were determined. In the principal decision the Full Bench determined to insert a standard casual conversion clause into a number of modern awards.

The Full Bench confirmed the terms of the casual conversion clause and held that the clause would be inserted into 84 modern awards. Final determinations have been issued in the matter and the casual conversion clauses came into effect on 1 October 2018.

The Full Bench also determined to provide a 2 hour minimum engagement period in modern awards which do not currently provide for any such minimum engagement period. These clauses also came into effect on 1 October 2018.

Outstanding issues remain in relation to the Stevedoring Award and the Educational Services (Post-Secondary Education) Award. There is also an additional outstanding issue in the Horticulture Award concerning the introduction of overtime penalty rates for casual employees.

Read decision [2018] FWCFB 4695 (9 August 2018) and read decision [2018] FWCFB 5846 (21 September 2018).

Family & Domestic Violence Leave

[AM2015/1]

The Australian Council of Trade Unions’ (ACTU) claim for 10 days’ paid family and domestic violence leave was rejected by the Full Bench in July 2017. The majority decision (Gooley DP and Spencer C) formed a preliminary view that all employees should have access to unpaid family and domestic violence leave and employees should be able to access personal/carer’s leave for this purpose.

In a further decision issued by a reconstituted Full Bench, the Full Bench decided to provide five days’ unpaid leave per annum to all award covered employees (including casual employees) experiencing family and domestic violence. The Full Bench decided the entitlement will be available in full at the commencement of each 12-month period, will not accumulate, and will be available in full to both part-time and casual employees (ie not pro-rated).

The Full Bench deferred their consideration of whether employees should be able to access paid personal/carer’s leave until June 2021.

A final decision was issued on 6 July 2018 varying all modern awards (and one enterprise award) to include the model term. Parties were provided an opportunity to comment on the draft variation determinations before the model term came into effect on 1 August 2018.

Read decision [2018] FWCFB 1691 (26 March 2018) and read decision [2018] FWCFB 3936 (6 July 2018).

Family Friendly Working Arrangements

[AM2015/2]

The Australian Council of Trade Unions’ (ACTU) sought the variation of all modern awards to include an entitlement to part-time work or reduced hours for employees with parenting or caring responsibilities. Despite rejecting the ACTU’s initial claim, the Full Bench reached a provisional view that the variation of modern awards to include a model term, to facilitate flexible working arrangements for parents and carers, was necessary to ensure that such awards achieved the modern awards objective. The Full Bench also determined the provision of access to flexible working arrangements can provide benefits to both employees and employers.

A model term was set out in the decision and included flexible work arrangements for all categories of employees set out in s.65 of the Fair Work Act. The model term provides for consultation between the employer and employee, and also provides that an employer must give an employee a written response if the employer refuses a request for flexible working arrangements.

Draft determinations will be published and parties will then be provided 14 days to comment and to confirm whether award-specific issues will be pressed. The Full Bench propose to review the model term in June 2021.

Read decision [2018] FWCFB 1692 (26 March 2018) and read decision [2018] FWCFB 5753 (25 September 2018).

Proposed Norfolk Island Award

[AM2018/8]

The NSW Business Chamber and the Norfolk Island Chamber of Commerce applied for an interim award known as the Norfolk Island Interim Award 2018 to be made for private sector employees and employers on Norfolk Island.

The Full Bench dismissed the application as all the terms and conditions of employment included in the proposed interim award were state-based differences which are prohibited by s.154(1)(b)of the Fair Work Act.

The Full Bench encouraged parties to engage in enterprise bargaining, and advised that Commissioner Saunders could be made available to facilitate any such enterprise bargaining.

Read decision [2018] FWCFB 4732.

Payment of wages

[AM2016/8]

A decision was issued dealing with one aspect of the payment of wages common issue, the finalisation of the ‘payment on termination of employment’ model term. The decision set out a model term that will be provisionally inserted into 86 modern awards that are currently silent in respect of the time period within which termination payments are to be made. 

Parties were provided with an opportunity to contest the provisional view expressed by the Full Bench.

With the exception of the Alpine Resorts Award 2010, the Pharmacy Industry Award 2010 and the Rail Industry Award 2010, the Full Bench confirmed its provisional view with respect of the remaining 83 modern awards. Determinations varying these 83 awards will be issued shortly.

There remain a number of modern awards that do not contain the payment of wages termination term and directions relating to these awards have been issued.

Read decision [2018] FWCFB 4735, read Statement [2018] FWC 935 and read Statement [2018] FWC 3064.

Plain language re-drafting and standard clauses

The plain language Full Bench expressed the provisional view that all modern awards should be varied to replace existing standard modern award terms with the plain language standard clauses. A number of decisions have been issued in respect of the review of the standard clauses. The plain language standard clauses deal with:

• Award flexibility
• Consultation about major workplace change
• Consultation about changes to rosters or hours of work
• Dispute resolution
• Termination of employment
• Redundancy
• Transfer to lower paid job on redundancy
• Employee leaving during the redundancy notice period.

Interested parties were provided an opportunity to file submissions relating to the provisional view and a number of submissions were received. The Full Bench confirmed that all modern awards in which no submissions were received (103 in total) will be varied to replace the existing terms. Final determinations will be issued and will take effect on 1 November 2018. A further decision will be issued relating to the remaining modern awards in due course.

Read decision [2018] FWCFB 4704 and read Statement [2018] FWC 6091.

Key court reviews

This section provides summaries of the Full Court of the Federal Court of Australia reviews of Commission decisions.

Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139

Matter reviewed: [2017] FWCFB 3202

Federal Court of Australia

Application [WAD474/2017] filed 28 September 2017, seeking special leave to appeal the decision and orders of the Full Bench of the Fair Work Commission.

On 6 December, leave was granted for the Transport Workers' Union of Australia to intervene in the proceedings.

Status

This matter was heard before Justices Bromberg, Mortimer and Lee on 6 March 2018. Judgment in the matter was handed down on 27 August 2018. The application was dismissed.

On 24 September 2018, an application for special leave was filed by Broadspectrum in the High Court.

Read the Full Court of the Federal Court decision [2018] FCAFC 139.

Quentin Redvers Cook v Australian Postal Corporation & Anor [NSD296/2018]

Matters reviewed: [2018] FCA 390, [2016] FWCFB 7203

Fair Work Division of the Federal Court of Australia

Application [NSD296/2018] filed 2 March 2018 seeking to appeal the single Judge decision in Federal Court matter NSD1978/2016.

The appellant has also filed a notice of a constitutional matter under s.78B of the Judiciary Act 1903 (Cth) with the Federal Court in relation to this matter.

Status

This matter was listed for hearing before a Full Court on 21 August 2018 before Justice Rares, Justice Perry and Justice Charlesworth.

On 21 August 2018 the Court handed down an Order dismissing the appeal.

Read the Full Court of the Federal Court order NSD296/2018 (PDF).

Resources & Initiatives

What’s Next

On 30 July 2018 the Commission launched What’s Next: the Fair Work Commission’s plan to improve access and reduce complexity for our users (What’s Next).

What’s Next sets out the changes the Commission will make in the next 12 months to improve services and meet the changing needs of those who use the Commission’s services, building on the success of the Future Directions change program.

Workplace Advice Service

The Commission has launched a Workplace Advice Service (WAS) to provide access to free legal assistance to eligible persons including small business employers seeking employment law advice.

The Commission launched the WAS as free legal advice can improve access to justice, reduce participants’ anxiety and confusion, and avoid unnecessary costs. 

• In Victoria and New South Wales we are partnering with a range of law firms, community legal centres and legal aid commissions to provide assistance.
• In Queensland we are partnering with Legal Aid Queensland to provide vulnerable persons with access to free legal advice.

Other states will be added to the WAS throughout 2018–19.

The WAS offers free legal advice (approximately one hour) to parties in matters at three key stages:

• Assistance level 1—Pre-lodgment or pre-conciliation advice to provide early assistance in unfair dismissal, general protections and anti-bullying matters.
• Assistance level 2—Advice focusing on unfair dismissal jurisdictional/threshold issues.
• Assistance level 3—Representation in proceedings that may be of public interest.

In addition to the WAS the Commission has recently commenced a pilot program with Justice Connect to provide free legal advice to people who are considering or have lodged a general protections application in the ACT and NSW.

Outside Sitting Hours pilot

The Commission’s Outside Sitting Hours pilot was established to trial the viability of offering parties in unfair dismissal matters the opportunity to attend Commission proceedings outside of standard business hours – on either a Thursday night or a Saturday to give effect to the Commission’s aim to provide greater flexibility, improve access and increase efficiency to parties in unfair dismissal matters.

The Pilot has continued following an interim review. It will be reviewed once again as part of the greater Workplace Advice Service program review which has a concentrated focus on the Commission’s access to justice programs.

General update

Annual report 2017–18 published

The Commission has published its annual report for the 2017–18 financial year following its tabling in the Australian Parliament.

Go to the Fair Work Commission Annual Report 2017–18.

Corporate Plan 2018–19 published

The Commission published its Corporate Plan 2018–19 on 31 August 2018. The plan covers the periods of 2018–19 to 2021–22 and has been prepared in accordance with the requirements of paragraph 35(1)(b) of the Public Governance, Performance and Accountability Act 2013 (Cth).

User experience research reports

The Commission has released reports from two projects examining user experience that provide useful insight and recommendations about the Commission’s services:

• Unfair dismissal user-experience research report (PDF)
• Working better for small business report (PDF)

These reports add to our understanding of how users experience the Commission’s processes and complement and build on other initiatives designed to drive process and operational improvement.

Subscriptions & Feedback

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.