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 email@example.com.
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 2021 and 30 June 2021.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The Workplace Advice Service (the Service) is an important Commission initiative delivering access to justice to those most in need. The Service provides free legal advice to eligible employees and employers about claims for unfair dismissal, bullying and the protection of workplace rights. Its success relies on our partnerships with private law firms, community legal centres and legal aid, who volunteer their time to provide this vital pro bono program. Through this partnership, the Service helped 3,406 clients in 2020–21, an increase of 42% compared to the previous year.
We provide professional development opportunities to support our partners. In June we delivered professional development sessions on conciliation. Around 80 participants from over 50 partner organisations attended. We will use the feedback we received to plan future professional development sessions.
Pending the Parliamentary outcome of the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill), and the introduction of express Commission powers to make orders to stop sexual harassment, we anticipate expanding the Service to cover workplace sexual harassment. The Commission hopes to provide training to its Service partner organisations on its stop sexual harassment jurisdiction, including on such issues as trauma informed practice.
If your organisation is interested in partnering with the Commission in delivering the Service, please email firstname.lastname@example.org to find out more. We are particularly interested in hearing from you if you are able to assist clients in Victoria, Queensland, Western Australia and New South Wales where we need to increase appointment capacity to keep up with demand. Since the onset of COVID-19 most consultations have occurred by telephone, making cross-state consultations possible.
The Fair Work Act requires the Commission, constituted as an Expert Panel for annual wage reviews (the Panel), to conduct and complete a review of the national minimum wage (NMW) and modern award minimum wages in each financial year (the Review). The Panel must make a NMW order and may set, vary or revoke modern award minimum wages. The NMW order applies to award/agreement free employees and the modern award minimum wages are the minimum wages contained in modern awards.
The decision affects an estimated 2.3 million employees whose wages are set by the NMW or by a modern award. In setting the NMW rate the Panel must take the objects of the Fair Work Act and the minimum wages objective in s.284 into account. In reviewing modern award minimum wages, the Panel must also take the matters in s.284 into account, as well as the modern awards objective in s.134.
As was the case last year, the Review was undertaken during a global pandemic. The Review timetable was again varied to allow parties to provide submissions regarding the impacts of the pandemic as they unfolded and to comment on the most recent available data. The Panel received submissions from the Australian Government, most state governments, and bodies that represent the interests of employers and employees, other entities and individuals.
The Panel considered all the relevant sections of the Fair Work Act in arriving at its decision. The Panel noted there was a broad consensus in the submissions received that the current performance of the economy had exceeded expectations and the economic recovery was well underway. The Panel took into account the impact of the pandemic and that the extent of the recovery has varied between and within industry sectors. The Panel also acknowledged that domestic COVID-19 outbreaks necessitating further containment measures remains a significant risk. The Panel decided that overall, the change in circumstances—the markedly better economic environment, the scheduled Superannuation Guarantee increase and tax-transfer changes—weighed in favour of a higher increase than was awarded in last year’s Review.
The Panel decided that it was appropriate to increase the NMW by 2.5%. The new NMW will be $772.60 per week, or $20.33 per hour, which amounts to an increase of $18.80 per week to the weekly rate, or 49 cents per hour to the hourly rate. The hourly rate was calculated by dividing the weekly rate by 38, based on a 38-hour week for a full-time employee.
The Panel also decided to increase modern award minimum wages by 2.5%. Weekly wages in the NMW order and modern awards will be rounded to the nearest 10 cents. The increase also applies to modern award minimum wages for junior employees, employees to whom training arrangements apply, employees with a disability, and to piece rates, through the operation of the methods apply to the calculation of those wages. Wages in the National Training Wage schedule were increased by 2.5%. The casual loading in the NMW order and modern awards remained at 25%.
The Panel was not satisfied that there were ‘exceptional circumstances’ to justify the adjustments set by the NMW order taking effect on a day later than 1 July 2021. The NMW order will come into operation on 1 July 2021.
Regarding the date of operation of the determinations varying modern award minimum wages, the Panel was satisfied that exceptional circumstances warranted delayed operative dates for the variation determinations for certain modern awards, and modern enterprise awards in certain sectors.
The variation determinations for the following sectors will come into operation on 1 November 2021:
The variation determinations in respect of the General Retail Industry Award 2020 will come into operation on 1 September 2021.
For all remaining modern awards, modern enterprise awards, and state reference public sector awards, the Panel was not satisfied that exceptional circumstances existed to warrant delayed operative dates for the variation determinations so all other modern awards (including the Fast Food Industry Award 2010 and the Horse and Greyhound Training Award 2020), modern enterprise awards, and state reference public sector awards, came into operation on 1 July 2021 with the increase taking effect from the start of the first full pay period that starts on or after 1 July 2021.
In response to a request by Australian Business Industrial that the Panel ‘set out how it intends to reunify the clusters going forward’, the Panel stated that absent a case being made out that exceptional circumstances exist in respect of a particular modern award, any variations arising from next year’s Review will operate from 1 July 2022.
The applicant in this unfair dismissal matter made his application on 4 March 2021. The date on which the applicant's dismissal took effect is in dispute. In September 2020 the applicant was suspended with pay as an investigation was opened in response to a complaint made by a civilian and allegations of misconduct. On 24 November 2020 a Community and Public Sector Union (CPSU) representative sent the respondent an email stating that the applicant had requested all emails regarding the misconduct be sent to her while the applicant was on Workcover. On 8 February 2021 the respondent sent the CPSU representative a termination email with the applicant's termination letter attached. The respondent did not send this email to the applicant. The CPSU representative stated that upon receiving the termination email and letter she did not scan the intended recipients and genuinely believed a copy had been sent directly to the applicant and therefore did not contact the applicant, instead she waited for him to contact her to discuss next steps.
On 15 February 2021 the respondent contacted the CPSU representative and they both realised the applicant had not received the termination email or letter. As a result the CPSU representative informed the applicant of the termination that day by telephone and email. The respondent argued that the email from 24 November 2020 clearly inferred that the applicant had expressly authorised the CPSU representative to act as his agent and therefore the respondent did not need to send the termination email directly to the applicant, however believed the dismissal date should be 8 February 2021.
The applicant argued the date of dismissal was 15 February 2021, the day he received the termination letter, as the letter states 'You are now advised that your termination will be effective from the date you receive this letter'. Regardless of this, the applicant also stated the respondent did not inform him that his termination was effective from 8 February 2021.
The Commission found the respondent's assumption of an agency relationship between the applicant and the CPSU representative was incorrect as the 24 November 2020 email did not state the CPSU representative was authorised to act on the applicant's behalf. The Commission also found the language in the termination letter outlined the date of dismissal as the date the applicant received the letter, therefore Commission found date of dismissal as 15 February 2021 which was inside the 21-day statutory timeframe for lodgement. The respondent's jurisdictional objection was dismissed.
The applicant who made this application for unfair dismissal was a Brazilian national. He made an online application to provide services to Deliveroo. His application was progressed into the Sydney motorcycle/scooter application stream of Deliveroo and he was notified that his application to be a supplier had been accepted. The next step of the process was that he was required to complete an online quiz. Following the successful completion of the online quiz and the provision of further information, the applicant was provided access to a link which enabled him to establish his personal Deliveroo rider account. The applicant electronically signed a Deliveroo supply agreement (the 2017 supply agreement), after that Deliveroo sent an email to the applicant requesting that he book into an 'onboarding' session. At the onboarding session, the applicant (and others) were provided with information including how to use the Deliveroo Rider App; where services could be performed; requirements in respect of safe operation of the performance of services, together with an offer to be provided with Deliveroo branded clothing and related equipment. The applicant accepted the offer to be provided with the Deliveroo branded clothing and related equipment for which a bond of $220 in total was subsequently deducted by way of $55 instalments taken from his first 4 fortnightly payments.
The applicant commenced performing services for Deliveroo on 22 April 2017, when he made his first delivery using a Honda CB 125 cc motorcycle that he had purchased for $1,500. The applicant continued to regularly perform delivery services for Deliveroo up until his services were terminated with effect on 30 April 2020. The applicant purchased a second motorbike, a Kawasaki 650, in 2018, and this machine was also used from time to time to perform delivery services. The 2 motor bikes were also used more generally as the only means of private transportation the applicant had for himself and his family.
In April 2017, the applicant also signed up to provide services for the Portier Pacific Pty Ltd company via the Uber Eats Partner App, however he did not commence to undertake delivery services for Uber Eats until 6 April 2018. The applicant performed what might be described as supplementary delivery work for Uber Eats, and from March 2020, he also performed work for the Door Dash delivery business.
The delivery services that were performed by the applicant for Deliveroo were arranged and undertaken by means of various computer-based applications (or apps), which were accessed via the use of smart phones and/or other mobile electronic devices. Deliveroo periodically reviewed the provision of delivery services provided by individual riders and relevantly identified any aspects of what it considered to be poor or inadequate performance.
Two particular aspects of the applicant's performance of delivery services were the subject of recorded complaint and warning. Firstly, a circumstance where an order has not been received, but the rider has marked the order as delivered, is an event that was described as an Order Marked Delivered, Not Received (OMDNR). On 19 October 2017, 22 February 2018, 4 February 2019, and 22 January 2020, Deliveroo sent emails to the applicant identifying an OMDNR event on each occasion and provided warning about the potential for that event to lead to the termination of his supplier agreement. Secondly, Deliveroo regularly reviewed its delivery time records in order to identify any significant delays in the provision of its delivery services to customers. In such reviews Deliveroo initially compares the difference between what it refers to as the expected rider experience time (Average RET) and the actual rider experience time (Actual RET). On 3 February 2020, Deliveroo's weekly RET analysis showed that in the 2 previous weeks, the applicant's average Actual RET was between 10% and 30% slower than comparable riders in the relevant zones. Because of this Deliveroo's Operations Supply and Support Manager sent an email to the applicant which warned him that his supplier agreement may be terminated because of the identified delays with his delivery times.
In April 2020 Deliveroo undertook a review of rider accounts that were associated with customer complaints. This review resulted in the identification of the applicant as a rider having significantly delayed delivery times. The Operations Supply and Support Manager conducted a further detailed investigation into the applicant's Expected RETs when compared with his Actual RETs. The manger determined that the applicant's delivery times were unacceptably delayed, and she decided to terminate his supplier agreement. On 23 April 2020 Deliveroo sent an email to the applicant which advised that because he was failing to deliver orders in a reasonable time, he had breached the supplier agreement, and therefore 7 days' notice of termination of the agreement was provided. Following his termination with Deliveroo the applicant continued and increased his supplementary delivery work for Uber Eats, and he also increased deliveries for another delivery company, Door Dash Technologies Australia Pty Ltd.
The first matter requiring determination by the Commission was whether the applicant was an employee or an independent contractor. It was submitted for the applicant that he was not carrying on his own business, he was not pursuing profits, but only obtaining remuneration for work performed. It was further submitted that there were several other factors which established that the applicant was working within and for Deliveroo's food delivery business. The remuneration he received was not negotiated and was not able to be negotiated. Further, the applicant clearly presented as an emanation of Deliveroo, as he wore clothing and carried an insulation bag which were emblazoned with the Deliveroo name and logo.
The written submissions made on behalf of Deliveroo asserted that, having regard to the totality of the relationship, the applicant was not an employee of Deliveroo but rather an independent contractor. It was submitted the applicant was an independent contractor because of factors such as he was not required to perform services for Deliveroo personally; he was permitted to work largely whenever and wherever he chose, and for whatever length of time he wished; he was able to reject or accept work offered to him without consequence; he was able to perform work for multiple entities at the same time. It was further submitted that the applicant entered into a contract expressly providing that he was a supplier in business on his own account; he was paid on invoice for each delivery performed; he provided at his own expense, the 2 principal tools required to perform his duties; when he completed deliveries he determined what route to take; and he was required to indemnify Deliveroo for any loss incurred as a result of his or his delegate's negligence.
The Commission held the common law question of whether a person was an employee, or an independent contractor was an issue that had involved an extensive amount of litigation over many years. The relevant legal principles have been described as the adoption of a multifactorial approach which involves the consideration of various factors including a number of identified indicia, with no single factor being decisive, and an overriding requirement for examination of the totality of the relationship between the parties so as to ultimately provide a sound basis upon which to determine whether the relationship was one of employment or independent contractor.
The various factors or indicia relevant to the proper characterisation that should be provided for the relationship between the applicant and Deliveroo were 'carefully examined, evaluated, balanced, and considered' by the Commission. The Commission found that in this case, when consideration of all the relevant indicia, had, 'like the colours from the artist's palette, emerged to form a complete picture', the correct characterisation of the relationship between the applicant and Deliveroo was that of employee and employer. Although, the picture was 'impressionistic and not precise', it was nevertheless a compelling conclusion, drawn from the answer to the question: Does the relationship between the applicant and Deliveroo look more like employment or does it look more like independent contracting?
The Commission concluded that the applicant was not carrying on a trade or business of his own, or on his own behalf, instead he was working in Deliveroo's business as part of that business. Importantly, the Commission considered that the level of control that Deliveroo possessed, and which it could choose to implement or withdraw, whilst not immediately apparent, when properly comprehended, represented an indicium that strongly supported the existence of employment rather than independent contracting. In addition, the Commission noted the fact the applicant could and did work for competitors of Deliveroo, must be assessed in the context of a modern, changing workplace impacted by our new digital world. The applicant was, despite aspects of his relationship with Deliveroo including elements usually associated with that of an independent contractor, engaged in work as a delivery rider for Deliveroo as an employee of Deliveroo.
The Commission then considered whether the applicant was a person protected from unfair dismissal. The reason stated for the dismissal of the applicant was 'Failing to deliver orders in a reasonable time is a breach of your supplier agreement.' Deliveroo's Operations Supply and Support Manager confirmed that in the 4 weeks prior to 23 April 2020, the applicant's RETs were in 96% of cases, slower than the expected RET. Further, his average actual RETs were 21% and 20% slower than comparable riders in the same zones. The Commission found that consequently, the fundamental reason for dismissal was established as a matter of fact. The applicant was, in the 4-week period prior to his termination, delivering orders considerably slower than other comparable riders.
However, the Commission also noted that a factual confirmation of the conduct or capacity that provided the reason for dismissal does not necessarily translate into a finding that the reason was valid. Conduct which may be factually established could not represent a sound, defensible and well-founded reason for dismissal unless the employee was aware that that particular conduct would be relied upon as the basis for dismissal. At no time prior to the termination of his services was the applicant advised of the delivery times that were expected of him, and which would, if not achieved, be deemed unreasonable and the basis for dismissal. The Commission found the absence of clear identification of the required delivery time standards meant the failure to deliver orders in a reasonable time could not represent a reason that was sound, defensible or well-founded. The Commission found there was not a valid reason for the dismissal of the applicant related to his capacity or conduct.
The Commission found the procedure Deliveroo adopted where it advised the applicant of the termination of his services by way of email communication and without any proper, prior warning, was unjust, unreasonable, and unnecessarily harsh. The Commission found that the applicant's claim for an unfair dismissal remedy had been established. The applicant sought reinstatement as remedy for his unfair dismissal. The Commission held that in the particular circumstances of this case the primary remedy of reinstatement would represent an appropriate and just rectification that reflected a termination that was most notable for its absence of compassion. The Commission found that irrespective of whether the applicant was a contractor or an employee, it was plainly unconscionable to terminate what would be well understood to be his primary source of income, without first hearing from him. The Commission ordered the applicant's reinstatement and continuity of service, and an order to restore lost pay was made.
Note: An appeal has been lodged against this decision.
The applicant who made this application for unfair dismissal was employed as a care assistant who provided at home care to clients. The respondent is an aged and disability care provider. The respondent raised a jurisdictional objection and argued that the applicant was not dismissed. In a previous decision the Commission found the applicant was dismissed effective from 4 October 2020 [ FWC 231].
In response to the COVID-19 pandemic, in April 2020 the respondent amended their Immunisation Policy to make receiving the influenza vaccination an inherent requirement for all employees, volunteers and students in all aged care facilities and community care programs. In this amended policy the respondent also outlined that any employee, volunteer or student who refused the influenza vaccination on any grounds would not be rostered on for work after 1 May 2020.
The applicant declined the influenza vaccination for medical reasons, arguing that as a child she received the influenza vaccine and was told she had suffered some anaphylaxis reactions. The applicant argued the dismissal was harsh, unjust and unreasonable for the respondent to dismiss her because she refused to receive a vaccination that could potentially risk her life.
The Commission found the respondent's decision to mandate influenza vaccinations for all its client-facing employees, without allowing any exemption, was lawful and reasonable. The Commission did not consider the reason for the dismissal was capricious, fanciful, spiteful or prejudiced, and was satisfied there was a valid reason for the dismissal having regard to applicant's capacity and respondent's operational requirements. The dismissal was not found to be unfair and the application was dismissed.
The applicant in this unfair dismissal matter was employed as casual pool attendant for nearly 6 years, until his alleged dismissal on 19 February 2021. The respondent contended the applicant was not dismissed within the meaning of s.386 of the Fair Work Act.
The respondent was a not-for-profit charity that operated pools for the elderly and people with disabilities or injuries. On 15 February 2021 there was an altercation because the applicant believed he had not been paid for 2 hours of work he had recorded on his timesheet. The respondent gave conflicting evidence as to what was said during the discussion. According to notes taken by the administration manager immediately after the altercation (contemporaneous notes), the applicant said he would hand in his resignation and left the premises. However, according to administration manager's affidavit, the applicant said, 'Well I am resigning then'. In oral evidence, the administration manager claimed that applicant said 'Well I am resigning then. I will hand in my notice'.
On 16 February, the applicant discussed the Fitness Industry Award 2020 with the respondent. The Award had a minimum shift duration of 3 hours for casual employees and the applicant considered that the Award had been breached because he was frequently rostered to work 2-hour shifts. The applicant also told the respondent he had worked approximately 28 unpaid additional hours in the previous 3 weeks alone.
The applicant completed his normal shift on 17 February, and nobody suggested he had resigned or that he should not be at work. On 18 February the applicant also worked his normal shift and discussed some concerns with 2 members of the committee of management, one of whom was the President. On the evening of 18 February, the applicant sent a text message to the respondent saying he would hand in his resignation on the following day. After receiving advice from his mother, the applicant then sent a further text message, 20 minutes later, that said 'I've been told not to quit so I will be into work as per normal'. On 19 February the applicant attended work and was given a letter that said the respondent had formally accepted his resignation. The applicant said he had not handed in a resignation letter nor resigned.
The Commission held there was a 'material difference' between saying 'I am resigning' or 'I resign' (which has immediate effect or is notification of a decision that has been made) and 'I will hand in my notice' (which is a statement of intention as to the future). The Commission concluded that the administration manager's contemporaneous notes were accurate, namely that the applicant did not resign on 15 February but did say he would hand in his resignation, which was a statement as to his future intention. The Commission also found that the applicant did not follow through on his intention. On the contrary, the applicant called in sick on 16 February and worked as normal on 17 and 18 February and after again stating on 18 February his intention to resign, the applicant retracted his statement and attended for work on 19 February. The Commission concluded that the applicant's conduct, including the retraction of his intention to resign and his attendance at work on 19 February, showed that the applicant did not voluntarily leave the employment relationship. The Commission held that the respondent, in giving the letter to the applicant and asking him to return his keys to the premises and leave, terminated the employment relationship on 19 February under s.386(1)(a).
The respondent did not run an alternative case that it had a valid reason to dismiss the applicant. The Commission found that the applicant was not given any oral or written warning about his conduct. The Commission held that the applicant raised legitimate issues concerning compliance with the Award and potential underpayment, and instead of working through those issues, the respondent brought the employment relationship 'to a hasty end' without prior notice to the applicant. The Commission found that the applicant's dismissal was harsh and unreasonable under s.387.
The Sprigg formula was used to assess appropriate compensation. The Commission was satisfied on the balance of probabilities that if the dismissal on 19 February had not occurred the employment would have ended within 4 weeks by either resignation or dismissal. This was because the relationship had been deteriorating since September 2020 and the applicant was 'very close' to bringing the employment relationship to an end. This was evidenced by his stating on 2 occasions within 3 days of his intention to hand in his resignation. The Commission ordered compensation of $2,778.21 (less taxation as required by law).
This matter deals with an application to deal with contraventions involving dismissal. Mr Fogarty (Mr Fogarty or the first Applicant) alleged that either he or his company Lion Global Pty Ltd (Lion Global or the second applicant) was dismissed by either named respondent, Cybernet Australia Pty Ltd (Cybernet Australia or the first respondent) and Cybernet Manufacturing Incorporated (Cybernet Manufacturing or the second respondent).
The respondents raised a jurisdictional objection that neither Mr Fogarty nor Lion Global were dismissed within the meaning of the Fair Work Act and that in the absence of a dismissal the Commission has no jurisdiction to deal with the application. Cybernet Manufacturing is incorporated in the State of California, United States of America. It is a manufacturer and supplier of equipment (such as computer products) to the health industry, including hospitals. It operates internationally, including in the United States, Asia and the Asia-Pacific. Cybernet Australia was a service company established by Cybernet Manufacturing for repair and warranty purposes in the Australian jurisdiction.
Around August 2019 Mr Fogarty expressed interest in working for Cybernet. Cybernet was seeking a person based in the Asia-Pacific region who could be a point of reference for its regional business. In September 2019 Mr Fogarty flew to California from Sydney to discuss arrangements with Cybernet, to be acquainted with its products and systems and to meet senior management. An agreement was reached between Mr Fogarty and Cybernet that Cybernet would engage the services of Mr Fogarty as its Asia-Pacific and Middle East Regional Sales Manager. The method by which Mr Fogarty would provide these services was via an independent contractor relationship with services provided through Mr Fogarty's company Lion Global. Financial terms were also discussed and agreed. Neither party expected it to be full-time work. Mr Fogarty was prepared to work hours as needed and commit to Cybernet with the prospect of earning significant dollar commissions on large new orders. In the second half of 2020 the relationship strained, a decision was made by Cybernet to end the relationship with Mr Fogarty and his company.
For the purposes of an application under s.365 of the Fair Work Act, a dismissal is required to have occurred from a contract of employment between the person dismissed and their employer.
The Commission was not satisfied that there was a contract between either Mr Fogarty or Lion Global and Cybernet Australia which could underpin a claim under Part 3-1 of the Fair Work Act. The Commission held that as there was no contract between either Mr Fogarty or Lion Global and Cybernet Australia, there could be no contract of employment between those parties. The Commission found it was not possible for Cybernet Australia to have dismissed either Mr Fogarty or Lion Global. The Commission found the application, insofar as it was brought against Cybernet Australia, was not within the Commission's jurisdiction and must be dismissed.
As a foreign corporation, Cybernet Manufacturing is a national system employer for the purposes of the Fair Work Act. However, Lion Global Pty Ltd was not an employee of a national system employer because it was not and cannot be an employee. Section 335 provides that these terms have their ordinary meanings. An employee must be a natural person, an 'individual'. A contract of employment cannot be made between one corporate entity and another corporate entity. It can be made only with an individual such as Mr Fogarty, a natural person, not with his company. Whilst Lion Global may have standing for other purposes under Part 3-1 of the Fair Work Act, it had no standing to bring an application under s.365. The Commission found the application, insofar as it was brought by Lion Global against Cybernet Manufacturing, was not within the Commission's jurisdiction and must be dismissed.
Mr Fogarty, as an 'individual' within the meaning of s.30C(1)(a) had standing to bring an action under s.365 against Cybernet Manufacturing as a 'national system employer', provided Mr Fogarty could establish that he was an employee, and that he was dismissed from his employment. The Commission held that the issue in dispute was whether Mr Fogarty was an employee or an independent contractor. The Commission considered French Accent. The Commission found factors that tended towards a contractor relationship on the one hand and an employment relationship on the other. The Commission did not consider the Agreement to have been a mere label or subterfuge to avoid obligations. The Commission concluded that Mr Fogarty was not an employee at the date his service contract was terminated. The Commission held that as Mr Fogarty was not an employee of Cybernet Manufacturing, he was not dismissed by Cybernet Manufacturing. The Commission found that the application was not within the Commission's jurisdiction and must be dismissed.
In relation to this application dealing with a general protections dispute involving dismissal the respondent submitted that there was no employment relationship at the time and as a result the applicant was not dismissed within the meaning of the Fair Work Act.
In around December 2016, the Victorian government transferred its public disability services to the non-government disability sector. As part of this process, employees were seconded and then transferred to direct employment with certain providers. The applicant received a letter of offer with employment said to commence on 1 January 2021. The letter confirmed that the offer was conditional on the applicant satisfactorily completing safety screening requirements, including police checks. The applicant did not provide a satisfactory police check or cooperate in obtaining a check. The applicant was advised that she needed to provide a current police check and was reminded by letter on 2 occasions. She was given an extension of time to respond by 31 January 2021 and did not. On 10 February 2021, the respondent wrote to the applicant confirming that due to her failure to meet the safety screening requirements the employment offer had lapsed, although the language used was 'termination of employment'.
The Commission found that the language used by the respondent was imprecise however, the failure to use the correct technical language was not held against them. The Commission found that the applicant deprived herself of the opportunity to explain and harmed her own interests. The issue should have been discussed between the applicant and the respondent but was not because of the applicant's failure to respond to the respondent. The Commission determined that as the conditions of employment were not met, the offer lapsed, and employment never commenced. That is, while an offer was made for future employment, acceptance was not fulfilled as the pre-employment requirements were not met in accordance with the terms contained within the offer. The applicant was not an employee of the respondent when it withdrew its offer of employment and therefore was not a termination of employment within s.386 of the Fair Work Act. The application was dismissed
The Commission is building a new way for users to fill in and lodge forms.
We have developed an online application form which allows users to fill in and lodge single-enterprise and multi-enterprise agreement applications electronically.
The online application form pre-populates information and alerts users when important information has been left out or seems incorrect.
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The President of the Commission has issued a statement setting out new timeliness benchmarks for the Commission to determine applications for approval of enterprise agreements.
The statement also provides information about:
Application by Sphere Healthcare Pty Ltd t/a Sphere Healthcare Pty Ltd (Sphere) to terminate the Sphere Healthcare Pty Ltd Enterprise Agreement 2018-2020. In April 2020, 15 of Sphere's 155 employees were made redundant due to the COVID-19 pandemic and Sphere's financial difficulties, leaving 140 employees remaining. In July 2020, Sphere's factory was severely damaged by fire leaving employees with no work to perform. All 140 employees were made redundant.
Sphere re-engaged 5 former employees under fixed-term contracts to decommission machinery and equipment prior to demolition of factory. The re-engaged employees were covered by the Agreement and Sphere notified them of its proposed termination and gave them an undertaking to maintain any terms that were more beneficial under the Agreement. In October 2020, all 5 re-engaged employees voted in favour of terminating the Agreement and in November 2020 their employment ended because decommissioning had been completed.
The Australian Workers' Union opposed the termination of the Agreement because the business may open up again on the site. Sphere said it did not have plans to recommence operations in the immediate future but conceded it was reasonable to assume that if it did, it would seek to re-employ former employees.
The Commission noted that s.13 of Fair Work Act defined 'national system employee' as '… an individual so far as he or she is employed, or usually employed … by a national system employer …' [Commission's emphasis]. The Commission also found that s.220(2) did not specify that employees be 'employed at the time' of vote (unlike ss.180(2)(a) and 181(1)) and that when vote took place. Sphere was 'usually' an employer of not just the 5 re-engaged employees but all 140 employees who were made redundant only one or 2 months before the vote, and at least some of whom would be considered for re-employment if Sphere's operations recommenced. The Commission was not satisfied that Sphere complied with s.220(2) in respect of all 'employees covered by the agreement', within meaning of s.220(1), and so the Commission could not approve the termination of the Agreement under s.223(a). The application to terminate the Sphere Healthcare Pty Ltd Enterprise Agreement 2018-2020 was dismissed.
This matter relates to an application made under s.185 of the Fair Work Act for the approval of a single enterprise agreement known as the Commonwealth Bank Group Enterprise Agreement 2020. The Agreement covers Commonwealth Bank of Australia (CBA), Commonwealth Securities Limited (CommSec), Commonwealth Insurance Limited (CommInsure) and Colonial Services Pty Limited (Colonial) (collectively the employers). The Finance Sector Union of Australia (FSU) was a bargaining representative for the Agreement.
In their declaration the FSU raised 4 objections to the approval of the Agreement. The first objection was that employees who voted on the Agreement included employees who were not eligible to vote. The second and third objections contended that the Agreement was not properly explained to employees and therefore the Commission could not be satisfied that the Agreement had been genuinely agreed to by employees. The final objection was that the Commission could not be satisfied that the Agreement passed the better off overall test (BOOT).
Although the FSU did not press its first objection, the Full Bench gave it some consideration and found that employees covered by Australian Workplace Agreements (AWAs) and Individual Transitional Employment Agreements (ITEAs) were ineligible to vote as it could not have been said that they will be covered by the Agreement after it was made, instead it could only be said that they may later be covered if their AWAs or ITEAs were terminated. However, the Full Bench was satisfied that, even if the ineligible votes were removed from the total votes, the ‘yes’ vote would still prevail.
In relation to the final objection, the Full Bench considered a number of BOOT issues including:
The Full Bench considered that the existing reconciliation provision in the Agreement may have resulted in employees receiving remuneration equal to the award rather than leaving them better off overall. The employers provided a further undertaking which stated that the employers would not only pay employees any shortfall owed under the clause but also an additional amount of 5%.The Full Bench considered that where an Agreement contains a reconciliation clause the Commission’s consideration as to whether the Agreement passes the BOOT would take into consideration whether employees will regularly work in a way that would attract the operation of the reconciliation provision and if so, the margin by which the provision will exceed the shortfall and whether it outweighs the late payment detriment. The Full Bench considered each of the BOOT issues and was satisfied that it was not probable that employees would regularly work in such a way that would result in them receiving less pay under the Agreement than the award and if employees did work in such a way the 5% payment under the reconciliation provision would see them better off under the Agreement than the award.
Lastly, the Full Bench considered the issue of genuine agreement, in particular in relation to the pay increases contained in the Agreement and the promise of additional ‘life leave’ if the Agreement was approved. The Full Bench was concerned that the employers did not take all reasonable steps to explain the Agreement and the effect of its terms, as there were statements made in some videos and documents provided to employees that made inaccurate representations that the pay increases under the Agreement were guaranteed when they were not. To meet this concern the Full Bench indicated that it will be necessary for an undertaking to be made to make good the inaccurate representations made to employees regarding pay increases. In response to representations made about employees receiving additional ‘life leave’ should the Agreement be approved, a benefit which was not contained in the Agreement, the employers provided pre-emptive undertakings which the Full Bench considered remedied their concerns.
Additionally, the FSU brought to the Full Bench’s attention that some employees did not receive the notice of employee representational rights within 14 days of notification time, however in the circumstances the Full Bench was satisfied that the employers took all reasonable steps to comply with ss.173 and 180 of the Fair Work Act.
With the exception of the outstanding concern regarding inaccurate representations made about the pay rises in the Agreement, the Full Bench were satisfied that the Agreement met the approval requirements in the Fair Work Act.
In a further decision, the Full Bench considered an undertaking provided by the employers to address their outstanding concern. The undertaking had the effect of granting the wage increases to employees in the amounts that had been referred to in the representations made. The FSU contended the undertaking did not meet the concern raised by the Full Bench for 4 reasons:
In relation to the second and third issues raised, the Full Bench found that the employer had no obligation to explain the terms of the Agreement to employees on AWAs and ITEAs who are not covered by the Agreement and that the inaccurate representations of concern did not extend to the second pay increase. The Full Bench considered that further amendments to the undertakings were required to address the first and fourth issues raised by the FSU. The employers provided a further 2 versions of amended undertakings addressing these concerns. The Full Bench accepted the second version of the amended undertakings and was satisfied that it met their concerns, would not cause any financial detriment to any employee covered by the Agreement and did not result in substantial changes to the Agreement.
This matter refers to a dispute pursuant to s.739 of the Fair Work Act and the dispute resolution provision in clause 34 of the Meat Industry Award 2020. The dispute arose between the appellant and Bindaree, regarding a claim by the appellant that he was not receiving a full 30-minute unpaid meal break because of requirements to undertake a range of activities including:
At first instance Commission found that the time spent by the appellant donning and removing PPE, before and after work and before taking a meal break, was not work for which he is entitled to payment under the Award or his contract of employment.
The Full Bench found it apparent there were 2 separate disputes that were ultimately agitated for resolution on appeal. The first was the operation of clause 15.1 of the Award, unpaid meal breaks (the first dispute). The second matter in dispute was evidently only raised by the appellant in his submissions filed after the directions for the programming of the matter were issued. That matter involved whether undertaking activities including donning and doffing PPE prior to and after each shift should be regarded as work and remunerated accordingly (the second dispute).
With regard to the first dispute, the Full Bench considered that the meal break clause should be interpreted as providing a 30-minute break to engage in a meal related activity or an activity of the employee's choice. If an employer requires an employee to undertake substantive tasks or activities before they can commence their 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award, the period of time reasonably required to undertake those tasks or activities is not part of the employee's break and was 'work' within the meaning of clause 15.1.
Other activities, necessary hygiene procedures and appropriate health and safety practices, were 'required' by Bindaree to be undertaken before the appellant could enter the locker room or otherwise commence activities of his choice whilst off-duty. The Full Bench found that some of the activities, such as donning and doffing PPE, provided some benefit to the appellant as well as to Bindaree, and are a feature of the industry in which the work is conducted. The Full Bench found that because the appellant was 'required' by Bindaree to undertake the activities, which were substantive, before and after he could prepare or partake in a meal or engage in any other activity of his choice, the time reasonably taken to engage in the activities was not part of the appellant's 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award. These activities constituted 'work' undertaken by the appellant within the meaning of clause 15.1 of the Award. However, it was apparent to the Full Bench on the evidence that from 6 July 2020, and prior to the lodging of the dispute, Bindaree had provided a paid period of 10 minutes each day in addition to the appellant's unpaid 30-minute meal break.
With regard to the second dispute, that is whether or not activities including the doffing or donning of PPE before and after shift is work for which the appellant is entitled to be remunerated, the Full Bench was of the view that the second dispute was not within the jurisdiction of the Commission and the Deputy President erred in determining to the contrary.
Permission to appeal was granted and the appeal upheld in part. The decision at first instance was quashed insofar as it concerned the first dispute in respect of the period from the commencement of the appellant's employment to 5 July 2020. The matter was remitted to the Commission to determine the first dispute in respect of the period from the commencement of the appellant's employment to 5 July 2020. The second dispute was dismissed.
On 2 September 2019, the Full Bench issued a decision dealing with the nature of the 4 yearly review of modern awards, the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award), the SCHADS sector, the National Disability Insurance Scheme and the Tranche 1 claims [ FWCFB 6067]. In dealing with the Tranche 1 claims, the Full Bench expressed the provisional view that the increase in overtime rates for casuals should come into operation from 1 December 2019 and the increase in weekend and public holiday penalty rates for casuals were to be introduced in 2 instalments: the first on 1 December 2019 and the second on 1 July 2020. In a further decision issued on 18 October 2019, the Full Bench decided that the increases in overtime, weekend and public holiday rates for casuals were to operate from 1 July 2020, rather than in phased instalments[ FWCFB 7096].
This decision dealt with the Tranche 2 claims made in relation to the following:
The Full Bench rejected the United Worker’s Union claims to vary the change in roster clause, to insert a new clothing and equipment clause and to insert a mobile phone allowance. Further, the Full Bench dismissed the Health Service Union’s proposals to remove the client cancellation clause and to vary the overtime for part-time and casual's clause. Lastly, the Full Bench rejected the Australian Services Union’s proposal to introduce a community language allowance.
In respect of part-time and casual employees, the Full Bench decided to vary the minimum engagements clause to introduce a minimum payment period of 3 hours for social and community services employees (except when undertaking disability work) and 2 hours’ pay for all other employees. In addition, the Full Bench decided to vary the broken shifts clause to define a broken shift as consisting of 2 separate periods of work with a single unpaid ‘break’ (other than a meal break). To clarify how the broken shifts clause interacts with the minimum engagement clause, and to accommodate the need for a broken shift to involve more than one unpaid break subject to a maximum of 2 ‘breaks’ in the shift, the agreement of the employee, and an additional payment.
The Full Bench expressed a number of provisional views with respect to additional renumeration for working a broken shift and the calculation of the broken shift allowance. Regarding the travel time claim, the Full Bench expressed the provisional view that employees should be compensated for time spent travelling between engagements but noted considerations under s.134 of the Fair Work Act. Additionally, the Full Bench posed provisional views regarding the roster change clause, minimum payments for remote response work, client cancellation provisions, clothing and equipment reimbursements, overtime for part-time workers, the 24-hour-care clause, the sleepover clause and equal renumeration. The Full Bench expressed the provisional view that an operative date of 1 October 2021 was appropriate.
The Full Bench directed parties to file submissions and evidence with respect to its provisional views and the draft determination attached to the decision. A conference was convened on 27 May 2021 to discuss the travel time claim, remote/recall to work and clothing equipment claims. Due to interdependencies between the travel time claim and other claims, that claim will now to be dealt with after the other claims.
The Commission is undertaking a review of relevant terms in modern awards that interact with the new casual employee definition and casual conversion arrangements contained in the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth). The Commission must complete its review by 27 September 2021.
As part of the first stage, a 5-member Full Bench is considering the nature and scope of the review and reviewing relevant terms in an initial group of 6 awards. Once the Full Bench issues its decision on the initial awards, it will determine the process for the second stage covering the remaining awards.
On 21 June 2021 the Full Bench issued a statement expressing its provisional views in relation the review and shortly after a hearing was convened to deal with any opposition to the provisional views.
During the 4 yearly review, the Australian Council of Trade Unions (ACTU) made a claim for 10 days' paid family and domestic violence leave (FDV leave) to be included in all modern awards. The claim was rejected in 2017. The Full Bench majority at the time formed a preliminary view that all employees should have access to unpaid FDV leave and employees should be able to access personal/carer's leave for the purpose of taking FDV leave [ FWCFB 3494]. The Full Bench, differently constituted, issued a decision on 26 March 2018 [ FWCFB 1691] confirming the previous Full Bench's preliminary view regarding access to unpaid FDV leave. A model term providing an entitlement of 5 days' unpaid leave for employees to deal with family or domestic violence was finalised in a decision on 6 July 2018 [ FWCFB 3936] and 123 modern awards were varied to include the unpaid FDV leave entitlement. The Full Bench noted the decision was a cautious regulatory response and proposed to revisit the issues in June 2021 after the model term had been operating for 3 years.
On 18 December 2018 the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) amended the Fair Work Act to include an entitlement to unpaid FDV leave as part of the National Employment Standards (NES). The Full Bench issued a statement on 3 February 2019 expressing the view that the model term in the modern awards and the NES entitlement were substantially the same. In a decision on 25 July 2019 the Full Bench decided to remove the model term from the modern award exposure drafts produced during the 4 yearly review and insert a note referring to the NES entitlement [ FWCFB 5144].
On 12 April 2021 the ACTU, noting an increased incidence of family and domestic violence during the pandemic, requested the Commission to urgently commence the proposed review of the adequacy of unpaid FDV leave entitlement and to revisit the 10 day’s paid leave claim.
The Full Bench statement indicated the 2021 review of FDV leave terms in modern awards (FDV Review) would start with a conference on 30 April 2021. The FDV Review will include a consideration of:
The Full Bench noted a recent report from the inquiry into family, domestic and sexual violence, outlined a research program to assist in FDV Review, listed a and issued draft directions providing key dates for the FDV Review in 2021.
Following a request from the Minister for Industrial Relations to amend priority modern awards in sectors hardest hit by the pandemic, the President issued a Statement commencing a process on the Commission's own motion pursuant to s.157(3)(a) of the Fair Work Act to consider the inclusion of loaded rates and exemption rates clauses in four priority modern awards, including the General Retail Industry Award 2020. In a further Statement parties were invited to file variation proposals in relation to the Award.
The Shop, Distributive and Allied Employees’ Association (SDA), the Australian Workers’ Union (AWU) and Master Grocers Australia (MGA) filed a joint application to insert ‘Schedule I – Additional flexibility measures – Part-time employees’ into the Award. The proposed schedule facilitates agreements between an employer and certain part-time employees to work more ordinary hours than their guaranteed number of hours agreed under clause 10.5.
Following the Full Bench Decision on 24 March 2021 and a conference before Commissioner Hampton on 20 April 2021, the Commissioner issued a Further Report to the Full Bench (PDF) on 28 April summarising submissions lodged by conference participants in response to the issues identified at paragraph  of the 24 March decision. The Further Report identified some limited points of consensus around the interpretation of clause 10, and that views expressed by some parties during the conference differ to the views those parties have expressed in other forums.
Following further submissions on the interaction of clauses 10.6 and 15.9 a Full Bench Statement was issued on 18 May 2021 including provisional views on these submissions and a draft determination. All parties were given an opportunity to comment on these provisional views and the draft determination and on 31 May 2021 submissions were received from Australian Business Industrial (ABI), MGA, SDA, National Retail Association, Newsagents Association of NSW and ACT, and the Retail and Fast Food Workers Union. On 7 June 2021 submissions in reply were received from 2 parties.
Ai Group was involved in the earlier proceedings and had given qualified support to ABI’s alternative proposal but made no submission in respect of the provisional views expressed by the Full Bench in the 18 May Statement. Several parties expressed support for some or all of the provisional views in the Statement but suggested minor changes to the Draft Determination to clarify its operation. These minor changes related to:
No change was made to the proposed minimum engagement term.
The Full Bench identified a number of issues with the proposal to insert standing consent arrangements and declined to take the proposal further on its own motion.
The Full Bench confirmed its provisional views in the 18 May Statement. The Retail Award was varied in accordance with the Draft Determination, including the additional minor changes outlined above, with effect from 1 July 2021.
Following a request from the Minister for Industrial Relations to amend several priority modern awards in sectors hardest hit by the pandemic, the President issued a Statement commencing a process on the Commission's own motion pursuant to s.157(3)(a) of the Fair Work Act to consider the inclusion of loaded rates and exemption rates clauses in four priority modern awards, including the Restaurant Industry Award 2020. In a further Statement parties were invited to file variation proposals in relation to the Award.
Restaurant and Catering Industrial (RCI) applied to vary the Award by inserting a new Schedule R which includes an exemption rate, a simplified classification structure, and an all-purpose substitute allowance. Following a private conference, RCI filed further materials, including an amended draft determination.
RCI submitted the proposed exemption rate would remove excessive administration; provide a minimum guaranteed rate of pay; and provide a realistic cap of 57 hours instead of relying on 'reasonable overtime' for an annualised salary arrangement. In this decision the Full Bench clarified that the clause contemplates hours being worked above the ‘cap’. In relation to the proposed simplified classification structure, RCI submitted it would:
RCI also submitted the proposed substitute allowance would:
RCI noted the proposed Schedule provided a number of safeguards, including limited operation, a consultation clause and dispute resolution procedure, a requirement the exemption rate and substitute allowance can only be accessed by an agreement in writing and can be terminated with notice.
The Full Bench expressed the provisional view that the proposed variation strikes an appropriate balance between additional flexibility and treating affected employees fairly, and that the Award should be varied as per the amended draft determination, subject to including a note to the exemption rate clause referring to s.62 of the Fair Work Act. The provisional view was that new Schedule R should operate for a period of 12 months subject to review prior to end of 12-month period. Submissions and evidence in response to the provisional views were sought.
In September 2020, the appellant lodged his anti-bullying application. In November 2020, the Commission adjourned the matter until the respondent had an opportunity to investigate the appellant's allegations. In December 2020, the respondent's advisor directed the appellant to attend a meeting with the investigator (Bullying Investigation) on the basis that it was a lawful and reasonable direction that the appellant was required to comply with. The respondent's advisor subsequently directed the appellant to attend another meeting with a separate investigator to discuss allegations raised against the appellant by some former employees of the respondent (Employee Conduct Investigation).
In February 2021, the appellant applied to the Commission for orders to produce documents, but the respondent's lawyer objected on the basis that the documents were subject to legal professional privilege. At first instance the Commission upheld the privilege claims and held that the letters of engagement sent to the investigators established that the dominant purposes of the Bullying Investigation and the Employee Conduct Investigation were to obtain legal advice and prepare for litigation. The appellant applied for permission to appeal on the grounds that the Commission erred in concluding that legal professional privilege applied.
The Full Bench found that the claims of legal professional privilege made by the respondent's sole director personally could not be upheld because the Bullying Investigation and the Employee Conduct Investigation were not commissioned for the purpose of providing legal advice to the sole director personally. The Full Bench also found that the respondent's lawyers could not claim privilege either, as it was a right belonging to a client, not lawyers or any third party. The Full Bench noted that a 'communication … brought into existence for the dominant purpose of a client being provided with professional legal services will be privileged notwithstanding that some ancillary or subsidiary use … was contemplated at the time'. The Full Bench found that the Commission was correct at first instance to identify correspondence from the respondent's lawyers commissioning the Bullying Investigation as a proper basis for ascertaining the dominant purpose of the Bullying Investigation, as that correspondence showed the only purpose for that investigation, and any documents created in connection with it, was to assist the respondent's lawyers to provide legal advice to the respondent and potentially assist in the conduct of the anti-bullying proceedings.
The Full Bench further agreed with the first instance decision that privilege had not been waived, but found that respondent's advisors 'disingenuously' made misleading representations to the appellant about the purpose of Bullying Investigation to persuade the appellant that he could be lawfully and reasonably directed to attend a compulsory interview with an investigator, on 'pain of dismissal'. The Full Bench found that the respondent intended to induce the appellant to provide information to the investigator which was to be used to assist in the provision of legal advice to the respondent about the appellant's anti-bullying application. The Full Bench concluded that the circumstances were analogous to those in Brown v BlueScope Steel in relation to the waiver of privilege. The Full Bench further concluded that because the appellant was accompanied by his lawyers at the investigation interview, during which his lawyers made objections before the appellant provided any information of note, the respondent had not waived privilege, but if the respondent's conduct had 'persisted to fruition … it would have been inconsistent with the maintenance of legal professional privilege'.
The Full Bench found that initially, the appellant was told on various occasions that the Bullying Investigation was:
The Full Bench noted that a number of the represented purposes, if true, would not be protected by legal professional privilege. For example, if the dominant purpose of the Bullying Investigation was the Commission taking into account any final or interim investigation outcomes under s.789FF(2)(a) of the Fair Work Act, then it could not have been intended to be confidential because s.789FF(2)(a) was predicated on outcomes of the investigation being made known to the Commission.
The Full Bench concluded that a 'workplace investigation initiated by an employer the outcome of which is intended to be made known to relevant employees … and which is to lead, where necessary, to corrective or disciplinary action is not one which ordinarily has a purpose confidential to the employer'. The Full Bench found that Bowker 'is not to be read as standing for the proposition that a workplace investigation … may … be subject to legal professional privilege merely on the basis that the investigation is undertaken by a lawyer'. The Full Bench concluded that the respondent had not 'yet' claimed privilege with respect to documents relating to the Employee Conduct Investigation but expressed a view that the dominant purpose of that investigation was to provide legal advice to the respondent and there was no evidence that privilege had been waived.
The Full Bench upheld the Commission's first instance decision that certain documents relating to the Bullying Investigation were subject to legal professional privilege. The Full Bench quashed the first instance decision that certain other documents were subject to legal professional privilege and remitted the matter to the Commission for determination. Permission to appeal was granted and the appeal upheld in part.
The Commission has published 63 amended forms to include improved information about interpreting services.
These forms now include:
You can find the new versions from the Forms page on our website.
The forms that have been updated are:
The Commission has published an updated version of our Enterprise agreements benchbook.
The updated version incorporates recent changes relating to casual employees, including:
It also incorporates changes to the requirements for declarations in support of agreement applications, and information about related offences under the Criminal Code.
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. It is intended to help parties who are bargaining for, and making, an enterprise agreement.
The Enterprise agreements benchbook is designed to be read online and can be accessed on the Commission’s website. A printable version of the benchbook is also available for download.
From 1 July 2021 the application fee for dismissals, general protections and bullying at work applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act has increased to $74.90.
Also effective from 1 July 2021, the high income threshold in unfair dismissal cases has increased to $158,500 and the compensation limit is now $79,250 for dismissals occurring on or after 1 July 2021.
In addition, the Commission has published an updated version of the Unfair dismissals benchbook and the General protections benchbook. The updated versions reflect:
The Commission's benchbooks are designed to be read online and can be accessed from the Benchbooks page of the Commission’s website. A printable version of each benchbook is also available for download.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) was introduced into Parliament on 24 June 2021. If passed, the Bill will (among other things) amend the anti-bullying jurisdiction to provide the Commission with express power to make an order to prevent a worker being sexually harassed at work. The text of the Bill and the Explanatory Memoranda are available here.
The Senate has referred the Bill to the Education and Employment Legislation Committee for inquiry and report by 6 August 2021.
On 18 June 2021 the Australian Industrial Relations Commission website was retired.
Although the site will no longer be available to the public, the information on it will be kept by the Commission.
Any party who wants information that was previously available on the site can request it by emailing us at firstname.lastname@example.org, and staff of the Commission will assist where possible.
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