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.
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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 April 2019 and 30 June 2019.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The Fair Work Act requires the Commission’s Expert Panel (the Panel) to conduct and complete a review of the national minimum wage (NMW) and minimum wages in modern awards in each financial year. The Panel must make a NMW order and may set, vary or revoke modern award minimum wages. The decision affects an estimated 2.2 million employees who have their wages set by the NMW or by a modern award minimum wage.
In setting the NMW rate, the Panel is required to take into account various economic considerations, such as ‘the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth’.
The Panel took into account all of the relevant considerations from the Fair Work Act in arriving at its decision. The Panel found that the Australian economy has performed moderately well and the relevant data is indicative of a strong labour market. Business conditions remained consistent with trend growth in the economy and the labour market performed strongly. The Australian Government expects that the economy will grow at its potential rate and to support future increases in employment. The Panel found the prevailing economic circumstances provided an opportunity to improve the relative living standards of the low paid, and enable them to better meet their needs by awarding a real increase in the NMW and modern award minimum wages.
No party identified any data which demonstrated adverse employment or other effects arising from the previous two Review decisions, each of which resulted in real wage increases for NMW and award-reliant employees. The relative living standards of NMW and award-reliant employees has improved over recent years, although some low-paid award-reliant employee households have household disposable incomes, less than the 60 per cent of the median income relative poverty line.
A number of low-paid employee households are also likely to have disposable incomes that do not reach the threshold of the relevant Minimum Income for Healthy Living budget standard. Women are disproportionately represented among those on the NMW and those who are reliant on modern award minimum wages. An increase in the NMW and modern award minimum wages will assist in reducing the gender pay gap. The Panel was satisfied that the level of increase decided upon would not lead to any adverse inflationary outcome and nor would it have any measurable negative impact on employment.
The Panel determined that it was appropriate to increase the NMW by 3.0 per cent. The new NMW is to be $740.80 per week, or $19.49 per hour which amounts to an increase of $21.60 per week to the weekly rate. The Panel also decided to increase all modern award minimum wages by 3.0 per cent, weekly wages will be rounded to the nearest 10 cents. At the C10 tradesperson’s modern award minimum wage rate, this translates to an increase of $25.10 per week. The Panel took into account the circumstances of different regions, industries and sectors, but for the reasons set out in the decision, no exceptional circumstances were demonstrated such as to warrant a deferral of the increases.
The determinations and order giving effect to the decision came into operation on 1 July 2019. Increases take effect from the start of the first full pay period that starts on or after 1 July 2019. The increase also applies to modern award minimum wages for junior employees, employees to whom training arrangements apply and employees with disability, and to piece rates, through the operation of the methods applying to the calculation of those wages.
Wages in the National Training Wage schedule were increased by 3.0 per cent. The casual loading in modern awards remained at 25 per cent. The casual loading in the Business Equipment Award 2010 was increased to 24 per cent, consistent with the phasing approach.
The applicant in this unfair dismissal matter has been employed as Flight Attendant since January 1987. The applicant was on duty during a flight from Sydney to Johannesburg and upon landing, she returned a positive breath alcohol test and was suspended by the respondent pending an investigation. During the investigation process, the applicant acknowledged that she had consumed alcohol on a Sydney to Johannesburg flight, drinking vodka she had purchased from a duty free shop at Sydney International Airport prior to the flight departure. The respondent however alleged that the applicant had removed alcohol from its stores on-board the aircraft whilst in uniform.
The applicant stated she was prepared to provide a sworn statement that she had purchased the alcohol at a duty free store at Sydney International Airport. The respondent continued its investigation and found that the duty free store records did not support the applicant’s claim.
The applicant was advised in writing that the allegations that she had removed alcohol from the respondent’s stores and consumed it while working had been substantiated. The applicant at this point conceded she had been dishonest during the investigation process and had taken and consumed company alcohol on board the flight. The applicant was dismissed.
The Commission found that there was a valid reason for dismissal based on breaching the Civil Aviation Regulations which ‘prohibit any person acting as a member of the operating crew of an aircraft to have consumed any alcoholic liquor during the period of eight hours immediately preceding the departure of the aircraft or to be under the influence of alcohol while part of the operating crew’. The Commission also found a valid reason due to the applicant’s continued and repeated dishonest approach to the investigation.
The Commission noted that the applicant’s preparedness to sign a sworn statement that was known to be false was not a trifling matter. As such, the Commission found that the dismissal was not harsh, unjust or unreasonable and further noted that there may have been a different outcome if the applicant had been upfront and honest when it was first alleged she had consumed alcohol from company stores while on duty. The application was dismissed.
In this matter the applicant was employed as an ICT Technician and was summarily dismissed for allegations of serious misconduct involving the supply of prescription drugs in the workplace, and breaching the employer’s internal computer network and security policy.
The respondent submitted that the applicant had stored commercially sensitive documents on his personal OneDrive account including a file that contained all of the company’s passwords. The applicant contended that the commercially sensitive material in his OneDrive account was planted by his colleagues and simply denied he had ever supplied prescription drugs in the workplace.
The Commission considered that the evidence of the applicant was not strong and noted that he was an evasive witness, and had a tendency to either provide answers that best suited his position or to not provide them at all. The Commission found that on the balance, it was likely that the applicant was supplying prescription drugs in the workplace and that he was in complete violation of the company’s trust by having abused his position as an ICT officer. The Commission found that the dismissal was not harsh, unjust or unreasonable. The unfair dismissal application was dismissed.
This matter relates to an appeal against a decision to dismiss an application for unfair dismissal remedy. The respondent had introduced a new company policy to introduce fingerprint scanners to record work site attendance. Employees at the work site were directed to register their finger print records as part of the new system.
The appellant argued that biometric data was sensitive personal information under the Privacy Act 1998 (Cth) (the Privacy Act) and the respondent was not entitled to require that information. The respondent tried to address the appellant’s concerns by providing a document from the fingerprint scanner supplier explaining the nature of the data collected. The respondent then issued the appellant with a verbal warning, and later issued written warnings due to the appellant’s non-compliance with the new company policy. The appellant was subsequently dismissed due to the refusal to use the biometric fingerprint scanner.
The Full Bench considered the Australian Privacy Principles in Schedule 1 of the Privacy Act. The Full Bench found that the respondent did not meet some of the requirements of the Privacy Act. The Full Bench upheld four of the nine grounds of appeal and the decision at first instance was quashed.
The Full Bench found that the appellant’s dismissal was unjust because the appellant was not guilty of the conduct alleged. Upon rehearing the Full Bench found that the appellant was unfairly dismissed, and that the direction of the company policy for fingerprint scanning was unlawful and the appellant was entitled to refuse to follow it. The matter was remitted to Simpson C to consider the question of remedy.
The applicant in this unfair dismissal matter had worked for the respondent for 18 years, having started as an apprentice and eventually being promoted to Key Account Manager. The respondent was a small business employer. During 2018 three significant events occurred which eventually culminated in the loss of applicant’s employment. These were:
The applicant submitted that the circumstances in which he found himself in 2018 amounted to repudiation on the part of the respondent, and that once accepted by him was to be construed as a dismissal. The Commission considered the matter of Koompahtoo.
The Commission acknowledged that the applicant accepted the respondent’s repudiatory conduct and treated his contract of employment as having been terminated. The dismissal was a termination at the employer’s initiative and was not consistent with the Small Business Fair Dismissal Code. The Commission further found that there was no valid reason for dismissal let alone a valid reason relating to his capacity or conduct.
The Commission was satisfied that the dismissal of the applicant was harsh, unjust or unreasonable. In light of the circumstances the Commission considered that it was not appropriate for the applicant to be reinstated. The Commission ordered compensation in the amount of $33,133.00 less taxation, to be paid directly to the applicant, and $3,147.00 to be paid to his superannuation account.
This appeal concerned a decision at first instance where the Commission dismissed the appellant’s objection that it is a small business and that it had complied with the Small Business Fair Dismissal Code. The Commission concluded that CCTV footage that had been relied on by the appellant to justify the employee’s summary dismissal had been unlawfully obtained in accordance with the Workplace Surveillance Act 2005 (NSW) (the WS Act). The appellant’s grounds of appeal included that the Commission erred in holding that the CCTV recordings relied upon by the appellant were not obtained in compliance with the WS Act and that the CCTV footage was inadmissible. Permission to appeal was granted [ FWCFB 263].
The Full Bench found that the failure to give adequate reasons as to why the Commission did not accept the appellant’s submissions on the s.14 exemption under the WS Act was in error. The Full Bench also found there was a sufficient evidentiary foundation for the Commission to have formed the view that at the very least, the employee had impliedly agreed to the CCTV surveillance. The Full Bench held the Commission’s approach to ‘automatically exclude the CCTV footage was wrong and an error of law.
The Full Bench observed that the Commission had invited further evidence and submissions on the application and relevance of the WS Act. However, it was not readily discernible that the Commission took into account that it was entitled to inform itself in any manner as to the admissibility of the CCTV footage. The Full Bench found that this was an error. The appeal was upheld. The decision at first instance was quashed and the matter remitted to the Region 1 Coordinator for allocation to another Member for hearing.
This decision involved an application for unfair dismissal by an applicant who had been employed as a security officer for a period of two years. The applicant was summarily dismissed via text message with no reason provided. The applicant sought clarification on why he was terminated and was informed by the respondent that, as he was a casual employee no explanation was required.
The respondent submitted that the applicant was not a person who was protected from unfair dismissal because he was a causal employee who was not engaged on a regular or systematic basis and without a reasonable expectation of continuing employment on a regular and systematic basis.
The Commission noted that the work performed by the applicant was the subject of rosters that were issued either on a monthly or bi-monthly basis. It was further noted that this demonstrated that there was a method of engagement which established the employment of the applicant was on a regular and systematic basis. The Commission went on to acknowledge that the applicant had a reasonable expectation of continuing employment demonstrated by the regular rostering system and the Form F3 in which the respondent stated that the ‘the applicants [sic] next shift was not due until the 18th February 2019’.
There was no dispute that the respondent was a small business employer as comprehended by the meaning of s.23 of the Fair Work Act. The Commission found that the summary dismissal of the applicant was not consistent with the Small Business Fair Dismissal Code as there were no reasonable grounds or belief on the part of the employer that the applicant’s conduct was sufficiently serious to justify immediate dismissal. The Commission found that the employer simply believed that because the applicant was described and paid as a casual that it ‘it could dispense with his services whenever it felt like and without any reason’. It was found that the dismissal was not sound, defensible or well-founded.
The Commission further acknowledged that the respondent advising the applicant of the dismissal by way of text message, for undisclosed reasons, was ‘plainly unjust, unreasonable, harsh, and, unconscionably undignified. The dismissal of the applicant with such perfunctory disregard for basic human dignity reflects very poorly upon the character of the individual or individuals responsible’. The Commission concluded that the dismissal involved a manifestly unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was made.
The Commission found that the dismissal of the applicant was harsh, unjust and unreasonable and the claim for unfair dismissal was established. In calculating compensation, the Commission considered Sprigg and Pericich and compensation was ordered in the amount of $12,465.00 gross.
The CFMMEU made an application for approval of the Griffiths P/L t/a Botany Cranes & Forklift Services/CFMEU Collective Agreement 2018. The Application was not accompanied by Form F17 or a copy of the Agreement signed by Griffiths Cranes P/L. Griffiths unequivocal position was that it would never sign the Agreement as it had not been consulted by the CFMMEU and did not agree to the terms of the Agreement. The Agreement lodged with the application was however signed by an official of the CFMMEU.
The Commission dismissed the application for approval as it did not meet the signing requirements of the Fair Work Act and Fair Work Regulations. The CFMMEU’s grounds of appeal contended that the Commission wrongly answered the preliminary question of whether there was a valid application to approve the Agreement, absent a copy of the Agreement signed by the employer as required by s.185(2).
The Full Bench majority considered that it was in the public interest to grant permission to appeal as the appeal grounds raised questions on which there were differing views expressed in first instance decision of the Commission. The Full Bench decision of Sustaining Works was considered.
The Full Bench majority did not consider that the Fair Work Act evinces a purpose to render applications to approve agreements that are not accompanied by one or more of the instruments described in s.185(2) invalid and of no effect. The Commission is conferred with a discretionary power to dismiss applications under s.587(1)(a) or waive any irregularity in the form or manner in which the application is made under s.586(b).
The Full Bench majority found the application made by CFMMEU for approval of the Agreement under s.185(1) of the Fair Work Act was not invalid merely because it did not comply with s.185(2). The CFMMEU’s application was not made in accordance with the Fair Work Act, which resulted in it being amenable to dismissal under s.587(1)(a) and remedial action under s.586.
The Full Bench majority found that the Commission was not asked to do more than determine the preliminary questions and erred in confining his consideration to remedial action under s.586(a). The Full Bench majority granted permission to appeal. The appeal was upheld, the decision at first instance quashed and the application to approve the Agreement remitted to Lee C.
The Full Bench minority agreed that permission to appeal should be granted however concluded that appeal should be dismissed as there would be no utility in remitting the application for approval of the Agreement to the Commission for further consideration of s.586(b) of the Fair Work Act with the view of approving the Agreement with a singular CFMMEU signatory.
At first instance the Commission approved the termination of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014. The Commission noted in its decision that it was satisfied that the Agreement imposed restrictions on Alcoa’s ability to operate its business in the current commercial environment and was satisfied that is was not contrary to the public interest to terminate the Agreement.
The AWU appealed on several grounds, including that the Commission failed to take account of the lack of wage growth in Australia in assessing whether it was not contrary to the public interest to terminate the Agreement. The AWU submitted further grounds including that the Commission did not properly take into account Alcoa’s profitability and that it wrongly concluded that bargaining was at an impasse.
The Full Bench found that the Commission had considered wage growth stagnation and ultimately concluded that it was outweighed by other factors. It also found that it was reasonably open to the Commission to determine that the profitability of Alcoa was a neutral factor.
The Full Bench found that the Commission’s finding that the AWU would be unlikely to withdraw its concessions if the Agreement was terminated difficult to reconcile with its conclusion that bargaining had reached an impasse. The Full Bench held that an assessment of the facts would suggest a preparedness of the AWU to bargain. This ground of appeal was made out. Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the application remitted to Beaumont DP for redetermination.
At first instance the Commission approved the Opal Aged Care (Qld) Enterprise Agreement 2017 subject to undertakings. The appellant opposed the application for approval on numerous grounds including that the Agreement did not pass the better off overall test (the BOOT). On 19 November 2018 the Commission issued a decision in which it considered and rejected the ANMF’s contentions that the Agreement should not be approved, but identified further concerns about whether the Agreement passed the BOOT [ FWC 7061] (the November Decision).
In the Approval Decision (the decision under appeal), the Commission referred to the November Decision and concluded that it was satisfied that the requirements for approval of the Agreement had been met. The subsequent appeal contained 10 grounds of appeal contending that the Commission’s decision to approve the Agreement was affected by error. The grounds of appeal included whether the Agreement passed the BOOT, whether the undertakings involved substantial change or detriment, questions of procedural fairness and unlawful terms.
The Full Bench majority found that the issues identified with the BOOT were sufficient to uphold the appeal and quash the Approval Decision. These issues related to the Commission’s finding that the rates of pay in the Agreement were generally higher than the rates of pay in the Nurses Award 2010, applying to certain classifications of ‘assistant in nursing’ employed on a casual basis when working overtime, weekends and public holidays. The Full Bench majority also found some of the ANMF’s other grounds of appeal would, if upheld, be fatal to the application. Permission to appeal was granted, the appeal was upheld and the decision at first instance quashed. The matter was remitted to McKinnon C for redetermination.
The Full Bench minority agreed with much of the Full Bench majority’s reasoning, and agreed that permission to appeal should be granted, the appeal should be upheld and the subject decision be quashed.
The Full Bench minority also respectfully considered there were other reasons why the decision should be quashed. One of the bases upon which the appellant opposed the approval of the Agreement was its contention that the Agreement did not, within terms, actually cover employees of Opal Aged Care. In the November Decision the Commission accepted an application to amend the coverage of the Agreement. The Full Bench minority respectfully found it was not jurisdictionally available to vary an enterprise agreement in the way that occurred in relation to the application for the approval of the Agreement. It was also found that the the application for the approval of the Agreement did not have with it a ‘signed copy’ of the Agreement. The Full Bench minority further held a concern that the Commission may have erred in concluding that the Agreement did not contain any unlawful terms, particularly with regard to paid maternity leave provisions of the Agreement.
The CFMMEU lodged appeals relating to decisions made by the Commission in relation to the approval of the MSS Latrobe Valley Enterprise Agreement 2018. The CFMMEU initially sought to be heard in relation to the application. At first instance the Commission concluded that the CFMMEU did not have a right to be heard as it was not a bargaining representative for the Agreement but nevertheless exercised discretion and allowed the CFMMEU to make submissions in relation to whether the Agreement passed the better off overall test and the requirement that the Agreement include a dispute settlement term.
The CFMMEU was covered by an existing Greenfields Agreement and asserted that its rights under that agreement would be affected. The Commission held that such effects were indirect or consequential on any decision to approve the new enterprise agreements.
The grounds for appeal included the decision of the Commission to not to hear from, or to further hear from, the CFMMEU in opposition to the application to approve the Agreement, beyond the requirement for the Agreement to include a dispute resolution clause and in relation to the better off overall test.
The CFMMEU was, at the time the Commission considered its application to be heard, covered by the Greenfields Agreement. That agreement would cease to operate if the proposed Agreement commenced operation. The Full Bench recalled that in Collinsville account was made of the fact that enterprise agreements may confer or deal with the rights and obligations of an employee organisation vis-à-vis the employees, and that a new agreement might displace or alter those rights and obligations. The Full Bench found that a decision to approve an enterprise agreement which, when it commences operation has the effect of removing the right of a registered organisation to enforce the terms of an antecedent enterprise agreement covering it, directly affects that organisation.
The Full Bench likened the present case to Energy Australia Yallourn, where the Full Federal Court found that the operating enterprise agreement conferred substantive rights on the appellant. It followed that in the circumstances, hearing the CFMMEU was required to ensure that the decision concerning the approval of the agreement was made fairly. Since the Commission refused to hear the CFMMEU save as to the limited areas identified in the Decision, the CFMMEU was denied procedural fairness and the Commission was in error. However, that conclusion alone did not result in the grant of permission to appeal that Decision; the Full Bench noted that it would need to be satisfied that the Commission was in error in the approval Decision, otherwise there would be little utility in granting permission and upholding the appeal.
The Full Bench nonetheless agreed that there were grounds to believe that there was not sufficient evidence before the Commission to reach a conclusion that the application was capable of supporting the approval of the Agreement. Since appealable error was established, the Decisions at first instance were quashed and the Full Bench determined that the CFMMEU was entitled to be heard. The application for the approval of the MSS Latrobe Valley Enterprise Agreement 2018 was remitted to the McKinnon C for redetermination.
An application was made for the approval of the Bachy Solentache Australia Pty Ltd & Employees Enterprise Agreement (NSW) 2018-2020. The CFMMEU opposed the approval of the Agreement on the grounds that the employees covered by the Agreement had not genuinely agreed to the Agreement. The particular reason for the asserted lack of genuine agreement was that the Applicant had failed to provide the relevant employees with copies of the Building and Construction General On-Site Award 2010, being materials incorporated by reference into the Agreement, and described at Clause 2 of the Agreement as the ‘Parent Award’.
The Commission noted that s.180(2) of the Fair Work Act is prescriptive as to the steps that an employer must take. Reference was made to Dawsons, where it was observed that the legislation does not require that an employer take some reasonable steps or only those steps that it thinks necessary, instead the legislation requires that employers must take all reasonable steps to provide the requisite information. At the least, this would require no less than providing employees with a hard copy of the descriptors, or even to provide each person to be covered by the agreement with a hyperlink to the relevant clause of the applicable modern award.
The Commission clarified that ‘satisfaction on the part of the Commission that all reasonable steps have been taken would logically require cogent evidence on the part of the applicant employer as to the nature and detail of the explanation given. Mere blandishments to the effect that the agreement has been explained or that questions have been answered will inevitably be insufficient, as it is unlikely, if not impossible for the Commission to be satisfied that a genuine agreement has been reached on the basis of such general statements.’ [Dawsons at para. 48]
The Commission found employees could not be seen to have had effective access to materials to make an informed decision. The Commission was not satisfied that the error was minor, nor that the employees were not likely to have been disadvantaged by the error. As a result, the Commission found that the Agreement did not pass the pre-approval requirements, and it could not be satisfied that the Agreement was genuinely agreed to. The application for approval of the Agreement was dismissed.
This matter related to an application to deal with a dispute under the Dendrobium Mine Enterprise Agreement 2018. The dispute concerned the entitlements of Mr Gosek following his reinstatement on 13 April 2018 as a result of a Full Bench decision [ FWCFB 1829] and associated order [PR601730].
Mr Gosek was dismissed on 31 January 2017 for alleged misconduct. Mr Gosek made an application for an unfair dismissal and on 3 November 2017 Riordan C found he had been unfairly dismissed. The Commission ordered that Mr Gosek be reinstated to his former position, that his continuity of employment be maintained and also ordered an amount for lost remuneration (subject to certain discounts).
This dispute related to Mr Gosek’s entitlements to annual leave, long service leave and redundancy. The company filed an appeal against the Commission’s decision and on 23 February 2018, by way of a majority decision the appeal was upheld and the Commission’s decision and orders were quashed.
The Full Bench reheard the application, with the majority deciding that the dismissal was unfair and that Mr Gosek should be reinstated. The Full Bench did not consider it appropriate in light of the circumstances to make any order for lost remuneration. The time between Mr Gosek’s dismissal and his subsequent reinstatement was between 31 January 2017 and 13 April 2018 (the relevant period). The benefit of an order to maintain the continuity of an employee’s employment is in relation to such matters as the accrual of annual and long service leave during the relevant period. The Full Bench considered Kenley v JB Hi Fi.
The Commission held that the effect of the Full Bench’s order for continuity of employment was that Mr Gosek’s service related benefits should be calculated as if he had been employed during the relevant period. As such Mr Gosek should have been credited with the amount of annual leave that he would have accrued if he had been employed in the normal way, between his dismissal and subsequent reinstatement.
The Commission noted that the company should take all necessary steps to ensure that the amount of long service leave that Mr Gosek would have accrued if he had been employed in the normal way during the relevant period be credited to him. The Commission further noted that the company should calculate any redundancy pay entitlement (and any other service related entitlement) for Mr Gosek inclusive of the relevant period.
This matter relates to an application for an order to stop unprotected industrial action by the employer, Langports English Language College. On 10 April 2019, the Independent Education Union of Australia (the IEU) gave notice under s.414 of the Fair Work Act that it intended to take protected industrial action in the form of teachers not performing work unless they were wearing a badge that read ‘3 Rs Recognise Respect Reward’. At a bargaining meeting held on 12 April 2019, Langports issued a document notifying Langports employees and the IEU that they intended to take employer response action and that any employee attending work wearing a badge would be locked out without pay. Further notice was given on 15 April, however the notices did not specify when the employer response action would to begin.
On 16 April two teachers attended Langports wearing the badges and were directed that they would be locked out. The IEU submitted that the notices issued by Langports did not meet the requirements of the Fair Work Act on the basis that they did not did not specify the day on which the employer response action was to commence and therefore took unprotected industrial action against those employees.
The Commission found that the IEU and the employees had not been given a notice that specified the nature of the action or the day on which it would begin. The Commission was therefore satisfied the employer response action did not meet the requirements of ss.414(5) and (6) of the Fair Work Act. Accordingly, when Langports locked employees out of their employment on 16 April 2019 they were taking unprotected industrial action against those employees. At the hearing Langports gave no indication that it would not continue lockouts. The Commission was satisfied that the industrial action by Langports was not protected industrial action. The Commission ordered that the industrial action stop and not occur.
This matter involved an application for an order to stop bullying by a casino employee. The respondent alleged that the applicant was using a mobile phone at work contrary to policy. These allegations were investigated and CCTV footage reviewed. The applicant’s behaviour during the investigation was also alleged to be aggressive and inappropriate. This allegation was not denied and a warning was issued. A second allegation was made relating to the applicant spitting in a bin in a public place in the casino. This allegation was also investigated with the CCTV footage reviewed. The applicant was warned however refused to accept the warning.
The Commission found that the disciplinary action taken by the employer was reasonable. The applicant’s implausible explanations were rejected. The Commission held that any employer which has concerns about an employee’s conduct, and is able to prove that conduct occurred (as by the CCTV footage and Mr Karki’s own admissions), is perfectly entitled to conduct a disciplinary process and make a disciplinary outcome.
The applicant sought interim orders to stop any dismissal and to stop further bullying. The Commission held it was not acceptable to use the stop bullying jurisdiction ‘as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying’. The strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance is an improper use of this jurisdiction demeans and undermines the important work of the Fair Work Act’s stop bullying provisions.
The Commission found no evidence of bullying by the respondents. The incidents in question were reasonable management action carried out in a reasonable manner. The granting of interim orders was refused, with the application dismissed as jurisdictionally incompetent.
A first instance the Commission dismissed the appellant’s unfair dismissal application for unreasonably failing to comply with directions, namely failing to meet a deadline to file materials by the of close of business on 14 January 2019. The Commission contacted the parties 24 hours after the deadline and invited the respondent to apply to have the substantive issue dismissed. This was effectively a ‘strike out’ application pursuant to s.399A of the Fair Work Act.
The respondent filed a s.399A application. The reasons provided by the appellant for the delay in filing materials were that his wife recently gave birth and that his son was unwell. The Commission concluded that these circumstances were known to him in advance of the deadline. The Commission went on to note that if such circumstances posed a difficulty for him filing his materials, he could have informed Chambers in advance of the deadline for his materials and sought an extension. At first instance, the Commission found that appellant had unreasonably failed to comply with the issued directions and dismissed the application under s.399A.
The Full Bench considered that the appeal raised important issues in respect to the case management of unfair dismissal applications. The original decision was found to be inconsistent with the Objects of the Fair Work Act and the principles applying to ‘strike out’ applications. The Full Bench noted that this resulted in an injustice for which appellate intervention was necessary. The Full Bench noted the practice of extending an invitation to the employer to file a s.399A application was undesirable and should be avoided. The Full Bench discouraged ‘inviting’ the employer to file a s.399A application very shortly after a direction’s deadline not being met, and without taking into account any explanation before doing so.
The Full Bench also noted that procedural fairness is a component of natural justice, and a refusal to grant an adjournment may constitute procedural unfairness. The Full Bench accepted the appellant’s submissions that he was stressed and confused as to what was expected of him in complying with the Commission’s directions, and that his circumstances were exacerbated by family health issues. The Full Bench considered that the Commission should have provided a reasonable opportunity to for the appellant to prepare for and oppose his application being dismissed.
The Full Bench considered this to be a denial of procedural fairness and a jurisdictional error, and found that the Commission miscarried its discretion when it rejected the appellant’s explanation for his late filing; being primarily due to his infant son having been diagnosed with a condition which required open-heart surgery. The Full Bench was satisfied that that the exercise of discretion miscarried and lead the Commission into error and permission to appeal should be granted. The appeal was upheld and the decision and order at first instance was quashed. The matter was remitted to Beaumont DP.
In this matter the employee was dismissed by the appellant and made an unfair dismissal application. The appellant objected on the basis that employee was a casual but not regular and systematic, and without a reasonable expectation of continuing employment. The appellant also objected that as a small business the employee had not completed the minimum employment period. The Commission rejected both contentions (the Jurisdiction Decision) [ FWC 5665].
The appellant sought and was granted permission to appeal against the Jurisdiction Decision. The Full Bench upheld the grounds of appeal directed to the small business employer conclusion and quashed that part of the Jurisdictional Decision. The Full Bench rejected the ground of appeal directed to the counting of the employees period of casual employment and confirmed the Commission’s decision in that regard [ FWCFB 1099].
The appellant’s jurisdiction objection that it was a small business employer and that the employee had not served the minimum employment period of one year was remitted to the Commission for redetermination. When the matter returned, the appellant made an application to the Commissioner that he recuse himself on the ground of apprehended bias. The Commissioner refused the application (the Recusal Decision) [ FWC 2911] and the appellant applied for permission to appeal the Recusal Decision. The Full Bench granted an expedited hearing of the application for permission to appeal and decided to hear the merits of the appeal together with that application.
The appellant advanced three appeal grounds, the first contended the Commissioner failed to properly address the grounds for the application. The second ground contended the Commissioner applied irrelevant principles to deal with parts of the appellant’s concerns as to apprehended bias. The third ground concerned matters that arose after the Commissioner delivered the Recusal Decision.
The Full Bench was satisfied that the first and second appeal grounds identified an arguable case of appealable error and enlivened the public interest. Permission to appeal was granted. It would seem clear that the Commissioner did not deal with the appellant’s complaint about the manner of questioning recorded in the transcript. This was a material submission with which the Commissioner was obliged to engage but did not do so. Commissioner was therefore in error and this ground of appeal was upheld.
The appellant contended that the manner of questioning and the erroneous fact-finding may suggest that the Commissioner was predisposed to the employee’s case and therefore might not resolve the question before him impartially. It was evident from the Recusal Decision that the Commission did not engage with that central proposition. In failing to do so the Commissioner was in error and this appeal ground was upheld. The appeal was upheld and Recusal Decision was quashed.
The Full Bench reheard the application for disqualification, considering Ebner. The Full Bench found it unsurprising that a Member of the Commission will provide some assistance to unrepresented litigants in the nature of an explanation of the processes, and also of the matters that a litigant must establish in relation to an application. The Full Bench noted that it was not inappropriate for a Member of the Commission dealing with an application to ask questions of witnesses and of parties appearing before them, in order to assist the Member in identifying the issues to be decided and the factual findings that must necessarily be made in order to dispose of an application.
The Full Bench found there was little doubt that the Commissioner asked leading questions, however they were directed to relevant matters. In these circumstances context was important. The Full Bench did not accept that taken together the questioning of the employee and the erroneous factual findings provided a basis for concluding that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question he is required to determine. The Full Bench dismissed the appellant’s recusal application.
Two appeals were lodged by the CFMMEU against the Commissioner’s decision to refuse to recuse herself. The appellant argued that the Commissioner should recuse herself from arbitrating the dispute on the basis of a reasonable apprehension of bias. The appellant submitted that the Commissioner referring to the CFMMEU’s submission as a ‘smokebomb’, and referring to a CFMMEU representative’s Facebook page cover photo, despite it not being before Commission, demonstrated apprehended bias.
In the decision at first instance the Commissioner rejected the proposition that there was any general rule that a Member of the Commission should not arbitrate a matter if the Member had conciliated the matter.
The Full Bench considered the principles relating to disqualification on the ground of apprehended bias in Ebner, and was not satisfied that the ‘smokebomb’ comment when seen in context, constituted grounds for finding that there was a reasonable apprehension of bias. It was clear to the Full Bench that the Commissioner was raising the notion that the CFMMEU’s submissions about safety could be seen as a diversion from the real issue at stake in the dispute. However it was also clear that the Commissioner did in fact take those submissions seriously, most obviously by undertaking the site visit and not making the recommendation sought by Watpac.
The Full Bench also considered that the Commissioner referring to a personal Facebook page in the Decision, at least without giving the parties an opportunity to consider the matter and make submissions about it, was inappropriate and constituted a denial of natural justice. However the Full Bench was not satisfied that it provided a ground for finding a reasonable apprehension of bias. At most it seemed a passing reference of little consequence. In all the circumstances, the Full Bench was not satisfied that the denial of natural justice could have had any bearing on the outcome of the recusal applications.
The Full Bench held that concerns can arise where a Member of the Commission arbitrates a matter after having been involved in conciliation. This is so even where the Member has given no indication of any view he or she may have formed. It is essential for the proper functioning of the Commission that parties feel they may speak openly in conciliation, either in plenary session or in private with the Member, without fearing that what they say might subsequently adversely affect their interests in arbitration if the matter does not settle. That is one reason why conciliation proceedings are confidential and not recorded.
The Full Bench expressed the view that once a party to a dispute objects to a Member of the Commission who has been involved in conciliating that dispute from undertaking arbitration, that by itself should generally be enough to persuade the Member to arrange for the matter to be reallocated to another Member for arbitration. This is particularly the case where:
In relation to the matter currently under appeal, the Full Bench considered that once the Commissioner had finished conciliating the matter (and assuming the matter did not settle), in the view of the Full Bench it would be preferable for another Member of the Commission to conduct any arbitration, including the resolution of any jurisdictional questions.
The Full Bench dismissed the appeals against the Commissioner’s decisions not to recuse herself and referred the dispute back to the Commissioner. the Full Bench encouraged the Commissioner however to have regard to the observations it has made in considering whether it would be preferable to arrange for the matter to be reallocated to another Member of the Commission for arbitration.
On 6 July 2017 the Full Bench issued a decision [ FWCFB 3543] expressing a provisional view that because the Real Estate Industry Award 2010 does not provide for overtime payments for commission-only employees, or any restrictions on when hours may be worked, part-time and casual employment concepts were neither useful nor relevant for commission-only employees. Consequently the Full Bench decided the Minimum Income Threshold Amount for such employees would be set at 125 per cent of the relevant weekly wage rate, regardless of the hours worked by the employee. A decision [ FWCFB 354] and determination were subsequently issued.
The Commission received correspondence from the Real Estate Employers’ Federation, supported by the Real Estate Employees’ Federation of Western Australia, the Australian Property Services Association – Queensland Branch and the Australian Property Services Association that they had not understood there to have been a decision to exclude the employment of commission-only employees on a part-time basis. The Full Bench decided to amend the determination to preserve the pre-existing position. Parties were given an opportunity to file submissions and the matter was relisted. The parties also raised an additional issue in relation to the drafting of clause 16.3(a)(iii) of the Award.
The Full Bench found that there is no actual limit on the hours of work in a day, a week, or a month or a year for commission-only salespersons. Neither is there a prescribed daily spread of hours in which ordinary hours may be worked.
The amount which commission-only employees are required to be paid bears no relationship to how many, or how few, hours they work. By virtue of clause 17.5 of the Award, NES entitlements for commission-only employees are calculated not by reference to hours but by reference to the base rate of pay, being the minimum wage in clause 14.1 of the Award for the employee’s classification level. The whole concept of commission-only remuneration systems is that employees will be incentivised to perform the work necessary to obtain a sale, regardless of any notional hours of work attaching to their employment.
The Full Bench reinforced their provisional view and concluded that the Award should contain a provision that prevents commission-only employees from being employed on a part-time basis. The Full Bench concluded that the Award, together with the NES, would not provide a fair and relevant minimum safety net of terms and conditions of employment if the Award provided for commission-only salespersons to be employed on a part-time basis when the considerations in s.134 of the Fair Work Act are taken into account.
The Award was varied to remove the applicability of part-time employment provisions to commission-only salespersons. The Full Bench were not prepared to ‘grandfather’ preserve existing part-time arrangements. A variation was also made to clause 16.3 of the Award.
In a Decision on 2 April 2019, the Full Bench determined the form of the casual conversion clause in the Stevedoring Industry Award 2010 (the Stevedoring Industry Award); the overtime penalty rates for casual employees under the Horticulture Award 2010 (the Horticulture Award); and ACTU’s proposal to include the model casual conversion clause in the Educational Services (Post-Secondary Education) Award 2010 (the Post-Secondary Education Award).
The Full Bench confirmed their provisional view from August 2018 and stated the draft determinations for the Stevedoring Industry Award and the Horticulture Award would come into effect on or after 15 April 2019. The Full Bench provisionally considered that the Post-Secondary Education Award should be varied to include casual conversion provisions and that the variation would be made if no opposing submissions were received.
Following the Decision on 2 April 2019, the Full Bench provisionally determined the current casual conversion clause applicable only to the Wood and Timber Furniture Stream in the Timber Industry Award 2010 (the Timber Award) should be deleted and replaced with the model casual conversion clause. Interested parties were given 21 days to make submissions regarding the proposed amendment to the Timber Award.
During the 4 yearly review of modern awards, an issue was raised as to whether the coverage provisions of the Seagoing Industry Award 2010 and the Ports, Harbours and Enclosed Water Vessels Award 2010 (the Awards) interrelate in an appropriate and effective manner. The Full Bench intended to resolve this issue in a February 2017 decision by varying the coverage provisions of the Awards in the manner proposed by Sea Swift Pty Ltd [ FWCFB 1138]. Following several parties’ disagreement with the draft variations, the Full Bench issued a statement in November 2017 expressing a preliminary view that the Awards (and perhaps the Marine Towage Award 2010) be amalgamated to remove the potential for overlapping coverage [ FWCFB 5833]. If the course of amalgamation were to be pursued by the Full Bench, an exposure draft would be published for comment.
The Full Bench reserved its decision in relation to this issue and in the interim, gave effect to its February 2017 decision by publishing revised draft determinations. Upon consideration of parties’ comments on the draft determinations, the Full Bench considered that it would be impracticable to prepare a workable exposure draft of an amalgamated award given the significant differences between the Awards, particularly in respect of minimum wages and hours of work. The Full Bench noted that it will proceed to finalise the implementation of the February 2017 decision.
Clubs Australia Industrial (CAI) applied to vary the Registered and Licenced Clubs Award 2010 (the Clubs Award) as part of the public holidays common issue being dealt with under the 4 yearly review to modify:
The Full Bench agreed to insert the CAI claim clarifying that an employee working on Christmas Day, when it falls on a weekend and is not prescribed as a public holiday under the NES, is to be paid an additional loading of 50 per cent of their applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.
The Full Bench decided that in circumstances where Christmas Day falls on a weekend and the public holiday is moved to a weekday as a result of the operation of State and Territory public holiday laws (a substitute day), that it was not appropriate that an additional penalty beyond the public holiday penalty already applying be paid.
The Full Bench rejected the deletion of clause 34.3 on the basis that it was not appropriate or necessary to ensure that the Clubs Award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions.
The Full Bench found that clause 34.3 was a supplementary term of the NES under s.55(4)(b) of the Fair Work Act and that the RDO system in the clause was an important component to ensure that the integrity of the hours of work arrangements were maintained. The Full Bench noted that similar RDO provisions were not uncommon in modern awards where RDOs apply and that similar RDO provisions applied in most of the pre-modern awards and NAPSAs.
This decision dealt with the plain language standard redundancy clause, industry specific redundancy schemes in six modern awards, and a number of related matters. The Full Bench confirmed its provisional views expressed in a decision from December 2018 [ FWCFB 7447].
The Full Bench decided to make the following variations:
In December 2018 the Full Bench issued a decision [ FWCFB 7621] (the 2018 decision) concerning an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) for increases to the minimum rates of pay for pharmacists in the Pharmacy Industry Award 2010 (the Pharmacy Award) on work value grounds. In the 2018 decision, the Full Bench expressed the following three conclusions:
The Full Bench invited further submissions as to the form and quantum of the new allowance considered, an appropriate adjustment to remuneration given the findings of an increase in the work value of pharmacists and in relation to the lack of alignment of pay rates constituting a work value consideration. After considering submissions, the Full Bench determined the following:
This section provides summaries of the Full Court of the Federal Court of Australia reviews of Commission decisions.
Originating Application [NSD1960/2018] filed 22 October 2018, seeking relief under ss.562, 563 of the Fair Work Act, s.39B of the Judiciary Act 1903 (Cth), and ss.21, 22 of the Federal Court of Australia Act 1976 (Cth).
This matter was heard before Justices Flick, O’Callaghan and Wheelahan on 13 February 2019. On 2 May, the Court ordered the application for judicial review be allowed in part, finding the final paragraph of clause 3.3, Application, of the CPB Contractors NSW Civil Works Enterprise Agreement 2017 - 2021 was not an unlawful term for the purposes of s.194(ba) of the Fair Work Act, and was not inconsistent with or repugnant to s.58.
Application NSD414/2019 filed 19 March 2019 seeking relief under s.39B of the Judiciary Act 1903 (Cth).
This matter was heard before Justices Rares, Jagot and Bromwich on 30 May 2019. On 20 June, the Court ordered the application for judicial review be dismissed.
In July 2018 as a part of the What’s Next? (PDF) initiative, the Commission announced a major review of its correspondence, notices and guidance material. The Commission has started by redrafting the 87 unfair dismissal template letters and notices generated and sent from our electronic case management system.
In the redrafting process the Commission responded to findings arising from two 2018 unfair dismissal research reports that examined how employees and small to medium sized experience the Commission’s services. One recommendation from those reports was that ‘using plain English in correspondence, forms and other communication tools could improve users’ experience of the overall process.’ (Final report: Unfair dismissal user-experience research (PDF), Cube Group, March 2018, at p. 4)
On 10 May 2019, the Commission published a document outlining its approach to plain language redrafting of unfair dismissal correspondence (PDF).
The Commission also published a sample group of plain language unfair dismissal letters on its website for public comment. Persons interested in reviewing a larger sample were invited to contact the Commission. Larger samples have been sent to key industry stakeholders to provide feedback from the perspective of employees and small to medium employers. The letters will be subject of user testing with employees and employers who have previously participated in unfair dismissal cases.
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The Fair Work Commission has published an updated online version of our Enterprise agreements benchbook. The benchbook has been designed to help parties who are bargaining for, and making, an enterprise agreement. The benchbook contains plain English summaries of the key principles of bargaining and agreement making case law and how these have been applied in Commission decisions.
The online Enterprise agreements benchbook is now available on our website.
On 13 June 2019 we proudly launched the Workplace Advice Service’s Online Request Form. The Online Request Form allows employees and small business employers to view information about the Service and to also check their eligibility to access free legal advice and assistance. The Online Request Form enhances visibility and accessibility to the service and forms part of the suit of helpful tools and resources we have developed to assist unrepresented people and small businesses.
Find more information about the Workplace Advice Service and the Online Request Form on the Workplace Advice Service webpage.
As part of Law Week 13-19 May 2019, the Fair Work Commission hosted three information sessions:
The information sessions were recorded and are now available on the Commission’s YouTube channel.
Find out more:
From 1 July 2019 the application fee for dismissals, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act increased to $73.20.
Also effective from 1 July, the high income threshold in unfair dismissal cases increased to $148,700, and the compensation limit for dismissals occurring on or after 1 July 2019 is now $74,350.
Entry permit cards issued by the Commission changed from 1 July 2019 as a result of the Fair Work Amendment (Modernising Right of Entry) Regulations 2019 (Cth). The Regulations require the new entry permit to contain the photo and signature of the permit holder. Following consultation with stakeholders, and consideration of the National Identity Proofing Guidelines (PDF), the design of the new entry permit has been approved.
The Commission has made every effort to minimise the additional administration for registered organisations, including piloting the new process with registered organisations. Proposed permit holders will need to verify their identity by obtaining a Digital iD from Australia Post – a fast and easy process at Australia Post outlets across the country. At a time and location that suits the proposed permit holder, they will then participate in a Skype video call with a staff member at the Commission to enable visual verification of the photo on the entry permit card.
Current permit holders are not required to do anything. They will be able to continue to use their existing permit until it expires. However, from 1 October 2019, they will be required to produce photographic identification along with their existing permit when entering premises.
The Commission has been working closely with registered organisations and their peak bodies. Detailed information about the Regulations have been provided to all registered organisations that have applied for permits within the past three years. Information has also been provided to their peak organisations and Commonwealth and State regulators. In addition, specially trained staff in the Commission’s Registered Organisations Section are available to assist registered organisations transition to the new arrangements.
Information about right of entry under the Fair Work Act is available on the Commission's Entry permits page.
You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.
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