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Anti-bullying benchbook

An overview of legal procedure & case law

What does ‘Reasonable management action carried out in a reasonable manner’ mean?

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  • Reasonable management action carried out in a reasonable manner
  • What is management action?
  • Case examples
  • When is management action reasonable?
  • What is a reasonable manner?
  • Case examples
  • References

 

Reasonable management action carried out in a reasonable manner

Contains issues that may form the basis of a jurisdictional issue

See Fair Work Act s.789FD(2)

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.[1] Section 789FD(2) is not so much an 'exclusion' but a qualification on the definition of when a worker is bullied at work.

This qualification is comprised of three elements:

  • the behaviour must be management action
  • it must be reasonable for the management action to be taken, and
  • the management action must be carried out in a manner that is reasonable.

Related information

  • What is management action?
  • When is management action reasonable?
  • What is a reasonable manner?

What is management action?

The following are examples of what may constitute management action:

  • performance appraisals[2]
  • ongoing meetings to address underperformance[3]
  • counselling or disciplining a worker for misconduct[4]
  • modifying a worker’s duties including by transferring or re-deploying the worker[5]
  • investigating alleged misconduct[6]
  • denying a worker a benefit in relation to their employment, or[7]
  • refusing an employee permission to return to work due to a medical condition.[8]

An informal, spontaneous conversation between a manager and a worker may not be considered management action, even if issues such as those listed above are raised.[9]

The term ‘management action’ has been extensively considered in the context of workers’ compensation laws. Recent workers’ compensation cases suggest that, to be considered management action, the action must be more than simply day-to-day operational instructions that are part and parcel of the work performed.[10]

The words used in s.789FD(2) however are less qualified: they exclude ‘reasonable management action carried out in a reasonable manner’. Unlike some workers’ compensation exclusions they do not refer to prescribed actions taken ‘in respect of the employee’s employment’ etc. or prescribe any list of ‘management’ or ‘administrative’ action. The Explanatory Memorandum suggests that the term may be required to be given a wider meaning under s.789FD(2):

112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker's performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.

This suggests that the legislature intended everyday actions to ‘effectively direct and control the way work is carried out’ to be covered by the term 'management action'.[11]

Case examples

Note: Some of the following case examples related to ‘management action’ are taken from decisions made in other jurisdictions, under different laws. Whilst these laws contain similar provisions, they are not identical. As a result these examples do not directly relate to the term ‘management action’ as contained in the anti-bullying provisions of the Fair Work Act.

NOT considered management action

Workers’ compensation – general operational action

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 (8 March 2012), [(2012) 217 IR 335].

Facts

A Commonwealth Bank manager sought workers’ compensation after developing a depressive illness. The Administrative Appeals Tribunal found that a number of circumstances contributed to the worker’s depression, including staffing changes affecting his branch in June 2008, and a number of events on the day of 18 July 2008. These included a telephone conference with fellow managers and his area manager in which the worker had to report poor results to colleagues and felt humiliated, an unsupportive visit from his area manager, his receipt of poor customer service results for the branch, and the anxiety he felt about reporting these results to his colleagues at an upcoming teleconference. The Bank sought judicial review of the AAT’s decision. It submitted that it was not liable to pay the worker’s compensation because the actions that contributed to his depression, such as the staffing changes and use of teleconferences, were ‘administrative action’ and excluded the Bank from liability.

Outcome

A Full Court of the Federal Court did not accept the Bank’s submission. It held that the exclusion applied to specific action taken in respect of an individual’s employment, such as disciplinary action, as opposed to action forming part of the everyday tasks and duties of that employment. This meant that the ordinary work routine, changes to routine and directions to perform work were not ‘reasonable administrative action taken in respect of the employee’s employment’. The worker’s claim for compensation was successful.

Relevance

In this case the appeal failed because the definition of ‘administrative action’ in s.5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) required that the action be taken ‘in respect of the employee’s employment’. Under the Fair Work Act the definition of ‘reasonable management action carried out in a reasonable manner’ does not have such an exclusion.

Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions to respond to poor performance, direct and control the way work is carried out or, if necessary, take disciplinary action.

Workers’ compensation – regular meetings

National Australia Bank Limited v KRDV [2012] FCA 543 (28 May 2012), [(2012) 204 FCR 436].

Facts

A worker attended regular weekly meetings with other team leaders and her manager, which were used to assess workloads for planning purposes. She was criticised for poor work performance during one of these meetings. The worker claimed workers’ compensation, alleging injury after being ‘picked on and singled out’ by her manager, and subjected to personal criticism in front of other managers. The worker’s employer denied the claim, arguing her condition was a result of reasonable administrative action taken in a reasonable manner in respect of her employment.

Outcome

The Federal Court held that, because the meeting was not arranged for the purpose of discussing the workers’ performance, the behaviour did not fall within the ‘reasonable administrative action’ exclusion for a workers’ compensation claim.

Relevance

When determining if actions are ‘management action’, it is necessary to examine the original intention of the actions. An informal, spontaneous conversation between a manager and a worker may not be considered management action, even if management issues are raised.

When is management action reasonable?

Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time, including:

  • the circumstances that led to and created the need for the management action to be taken
  • the circumstances while the management action was being taken, and
  • the consequences that flowed from the management action.[12]

This covers the specific ‘attributes and circumstances’[13] of the situation including the emotional state and psychological health of the worker involved.[14]

The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.[15] In general:

  • management actions do not need to be perfect or ideal to be considered reasonable
  • a course of action may still be ‘reasonable action’ even if particular steps are not[16]
  • any ‘unreasonableness’ must arise from the actual management action in question, rather than the worker’s perception of it[17], and
  • consideration may be given as to whether the management action involved a significant departure from established policies or procedures and, if so, whether the departure was reasonable in the circumstances.[18]

At the very least, to be considered reasonable, the action must be lawful[19] and must not be ‘irrational, absurd or ridiculous’.[20]

Any unreasonableness must arise from the actual management action in question rather than the worker’s perception of it.[21]

What is a reasonable manner?

For the exemption in s.789FD(2) to apply, the management action must be carried out in a ‘reasonable manner’.

As above, what is ‘reasonable’ is a question of fact and the test is an objective one.[22]

Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.[23]

This may include consideration of, for example:

  • the particular circumstances of the individual involved
  • whether anything should have prompted a simple inquiry to uncover further circumstances[24]
  • whether established policies or procedures were followed,[25] and
  • whether any investigations were carried out in a timely manner.[26]

However the impact on the employee cannot by itself establish whether or not the management action was carried out in a reasonable manner, and some degree of humiliation may often be the consequence of a manager exercising his or her legitimate authority at work.[27]

An employee must be able to demonstrate that the decision to take management action lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.[28]

Case examples

Reasonable management action – carried out in a reasonable manner

Discussions

Application by E.K. [2017] FWC 3907 (Simpson C, 21 August 2017).

Facts

The applicant alleged that the behaviour engaged in by her manager and supervisor was repeated, unreasonable behaviour and did not constitute reasonable management action conducted in a reasonable manner.

On a number of occasions the applicant’s supervisor had cause to address certain issues with the applicant. The applicant alleged that in each of these occurrences her supervisor commenced a discussion by raising their voice at the applicant.

Outcome

The Commissioner, in considering the case advanced by the applicant and the version of events from the perspective of the persons named, found that, whilst the applicant held a strong perception that she was the subject of bullying, it was not borne out by the evidence.

In dismissing the application the Commissioner considered that there was a pattern of the applicant making specific allegations about having been bullied when the evidence suggested that it was in fact her own behaviour that was inappropriate.

Relevance

When determining if the conduct of person(s) named is reasonable management action taken in a reasonable manner, it is necessary to examine the facts and circumstances of the matter. In this case the evidence demonstrated that the conduct of both the manager and supervisor of the applicant was at all times reasonable management action carried out in a reasonable manner.

Promotion

Devasahayam and Comcare [2010] AATA 785 (14 October 2010).

Facts

A public servant claimed she suffered psychological injuries during the course of her work, due in part to a number of issues relating to her performance appraisals, failure to be promoted and being ‘humiliated’ in front of others. Her compensation claim was refused on the basis her condition was a result of ‘reasonable administrative action undertaken in a reasonable manner’.

Outcome

The Administrative Appeals Tribunal upheld this decision, finding that all applicable guidelines had been followed.

Relevance

What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned.

Performance appraisal

Re Mr Sun [2014] FWC 3839 (Cloghan C, 16 June 2014).

Facts

The applicant was employed as an Application Developer. Later Mr A was appointed as General Manager, Information Systems. As a part of the performance appraisal process the applicant had to self-rate his performance. His direct manager queried some of the ratings; however the applicant received a rating of ‘Meets Requirements’ for each objective in the completed performance appraisal. On the day the applicant received notification of his annual discretionary bonus (which was less than he expected) he accessed Mr A’s electronic diary and saw an email between Mr A and his direct manager regarding his performance.

The applicant collapsed at work and was taken to hospital. At a meeting to discuss his return to work he alleged the collapse was work related and that an unnamed person changed the weightings on his performance appraisal (the First Complaint). The employer advised him that it would formally investigate the complaint in accordance with policy. The investigation found that his allegation was not substantiated.

Upon his return to work the applicant had a meeting with his manager and Mr A to discuss his role and how he carried it out. Mr A informed the applicant that he could allocate employees to undertake tasks irrespective of whether they were within the employee’s skills or position description, and that he was authorised to make such decisions and monitor those tasks and his expectations. This resulted in a situation where the applicant was critical of Mr A for requiring him to do a task which he considered was beyond his skills and capabilities, and consequently he accused Mr A of bullying (the Second Complaint).

Outcome

The Commission was satisfied that the applicant reasonably believed he was being bullied at work. However, with respect to the First Complaint, the alleged management action simply did not occur. Meanwhile, the Second Complaint involved management action by Mr A, which, when applying an objective test, was not bullying or unreasonable; it was reasonable and carried out in a reasonable manner.

Relevance

The Commission stated that caution should be exercised when considering whether payment of a discretionary bonus could be considered workplace bullying. The applicant’s belief that he should have been paid more did not constitute workplace bullying unless payment of the discretionary bonus was applied in a punitive manner. Of concern was that the applicant accessed Mr A’s email without permission; an employee does not have immunity from observing policies and practices expected in the workplace and employment relationship because they feel they are being bullied.

Performance review

Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Hatcher VP, 13 February 2015).

Facts

Amie Mac filed an application for orders to stop bullying at work. The application alleged that bullying occurred in the course of Ms Mac’s employment as a lawyer with the Bank of Queensland Limited (BOQ), and identified five persons employed by BOQ as the perpetrators of that bullying (jointly the respondents).

All staff undergo yearly Performance Development Assessments (PDAs). In her 2013 half-yearly PDA Ms Mac’s supervisor raised a number of areas where she needed to improve, and made a number of suggestions concerning how she might improve, her work performance. Shortly after Ms Mac went through the full-year PDA process she was put on a performance improvement plan (PIP). By about mid-February management had formed the view that Ms Mac was not meeting the objectives of the PIP and had therefore ‘breached’ it. In March 2014, Ms Mac’s solicitors sent a letter to BOQ advising that Ms Mac was on sick leave due to ‘acute stress’ caused by the PIP process and its surrounding circumstances.

Outcome

The Commission found that the decision to place Ms Mac on a PIP, and the manner in which the PIP process was implemented, were not unreasonable. Prior to the decision to place Ms Mac on a PIP being made, shortcomings in her performance had been identified by Ms Mac’s managers over a considerable period of time. Those shortcomings were brought to Ms Mac’s attention primarily through the documented PDA process, which was the established mechanism by which employees received feedback about their performance and were placed on notice if improvements were required. Although Ms Mac was rated as ‘Competent’ in her 2012 full-year PDA, significant shortcomings in her performance were identified. By the time of the 2013 full-year PDA, most of those shortcomings remained. The outcome of the 2013 PDA was an assessment of ‘Needs development’. In that context, BOQ was clearly entitled to take some form of action to achieve an improvement in Ms Mac’s performance.

The PIP process was the standard means by which this was done within BOQ. It was unsatisfactory that BOQ’s Performance Management Policy made no reference to the PIP process, with the result that the process was not fully transparent to all employees. Nonetheless, performance plans which clearly identify targets for improvement, require achievement of those targets within identified timeframes, and which provide support and feedback to employees to assist them to achieve such targets, are a legitimate and commonly used means to improve employee performance. In that context, the use of the PIP process by BOQ in relation to Ms Mac was reasonable.

Relevance

Where an applicant wishes to allege that the decision to implement a PIP amounted to bullying, such applicants must demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.

Perceived bullying and harassment

Ferguson and Commonwealth Bank of Australia [2012] AATA 718 (17 October 2012).

Facts

An employee claimed she developed a major depressive disorder as a result of bullying and harassment at work. The employer appointed a new manager to an under-performing branch. The new manager had a number of one-on-one meetings with the employee relating to her performance and minimum standards. The employee claimed that the manager’s manner was rude and belittling.

Outcome

The employer accepted that events at work had contributed to a significant degree to the employee’s mental health condition, but her compensation claim was refused because it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment. The Administrative Appeals Tribunal affirmed the decision.

Relevance

The mere fact that management action might have been conducted differently or in a more reasonable manner does not automatically render the management action unreasonable.

Reasonable management action – NOT carried out in a reasonable manner

Adherence to established internal policies

Yu and Comcare [2010] AATA 960 ((1 December 2010), [(2010) 121 ALD 583].

Facts

A high school teacher claimed she suffered a psychological injury which was significantly contributed to by her employment, including the implementation of a performance management process. Her compensation claim was refused on the basis that her condition was a result of ‘reasonable administrative action undertaken in a reasonable manner’.

Outcome

The Administrative Appeals Tribunal overturned this decision on appeal, finding that the employer failed to comply with the applicable employment instruments and policy provisions. This went well beyond ‘… a matter of legal or technical nicety’.

The Tribunal held that the management action in question was not within the meaning of ‘reasonable administrative action’ and that it was not undertaken in a reasonable manner. The worker for example had been denied procedural fairness and no documentation was produced setting out the evidence concerning the worker’s alleged underperformance.

The Tribunal noted that the employer’s inadequate record keeping may have adversely affected its case.

Relevance

It is important to keep records when dealing with performance or behaviour issues in the workplace. In this case it was in part the lack of evidence that the employer had complied with their own procedures and policies that saw the initial decision overturned.

Performance monitoring and mentoring

Krygsman-Yeates v State of Victoria [2011] VMC 57 (4 November 2011).

Facts

An experienced teacher alleged that she sustained an adjustment disorder with mixed anxiety and depressed mood as a result of having her performance as a teacher subjected to monitoring and mentoring, and being bullied and harassed by the school principal. Her compensation claim was refused on the basis that her condition was a result of ‘management action taken on reasonable grounds and in a reasonable manner…’.

Outcome

The Court found that the action taken was ‘management action’ based on reasonable grounds. The teacher’s employer had a legal duty and responsibility to respond to and take action in relation to complaints it had received about the teacher’s performance. However the management action was not taken in a reasonable manner because:

  • a three-page letter detailing performance-related issues was provided to the worker on her first day after returning from long service leave
  • guidelines on monitoring and mentoring weren’t followed
  • feedback was not provided to the worker during the monitoring and mentoring processes, and
  • insensitive and unreasonable action was taken by continuing to provide comment by the delivery of letters, given the worker’s ‘eccentricities and her previous emotional response and reaction to receiving [such] letters’.
Relevance

The failure of the employer in this matter to comply with their own procedures and policies saw that whilst the management action was taken on reasonable grounds, it was not taken in a reasonable manner.

Excessive emails

Application by Ms A [2018] FWC 4147 (Asbury DP, 13 July 2018).

Facts

The applicant, together with her husband, are directors of a company engaged to provide management services to a residential complex which is a community titles scheme (the Complex). The respondent is the Chairman of the Body Corporate Committee for the Complex.

The applicant complained of bullying conduct consisting largely of excessive emails sent continuously. The respondent argued his conduct was reasonable management action underpinned by the applicant’s failure to comply with her managerial responsibilities. The applicant sought an order to stop the respondent from a range of behaviours.

Outcome

The Commission considered the evidence and found that the applicant’s performance in providing management services was not ideal. However whilst many issues raised by the respondent were reasonable their manner, in frequency they were not. The Commission was satisfied that the respondent’s behaviour was unreasonable and repeated, and it was likely to continue. The Commission found that this behaviour was negatively affecting the applicant’s health.

The Commission issued an order dealing with the timing, subject matter and content of future emails by the respondent. The orders also required the respondent to attempt to contact the applicant by telephone before sending an email in relation to a particular issue.

Relevance

The bullying conduct involved the respondent sending emails to the applicant about matters which were not urgent, at times which were not reasonable. The bullying conduct also involved the inclusion in the emails of sarcastic and derogatory language in relation to the applicant and was exacerbated by the fact that the emails were disseminated to other members of the committee of management of the body corporate.

References

[1] Fair Work Act s.789FD(2).

[2] Thompson and Comcare [2012] AATA 752 (31 October 2012).

[3] Martinez and Comcare [2012] AATA 795 (14 November 2012).

[4] Truscott and Comcare [2012] AATA 220 (17 April 2012).

[5] Towns and Comcare [2011] AATA 92 (14 February 2011).

[6] State of Tasmania v Clifford [2011] TASSC 10 (24 February 2011).

[7] Towns and Comcare [2011] AATA 92 (14 February 2011).

[8] Drenth v Comcare [2012] FCAFC 86 (21 May 2012), [(2012) 128 ALD 1].

[9] Rutledge and Comcare [2011] AATA 865 (7 December 2011), [(2011) 130 ALD 94].

[10] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 (8 March 2012), [(2012) 217 IR 335].

[11] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 48.

[12] Georges and Telstra Corporation Limited [2009] AATA 731 (24 September 2009) at para. 23; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at paras 49–51.

[13] ibid.

[14] ibid.

[15] Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004) at para. 79, [(2004) 135 FCR 105]; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.

[16] Department of Education & Training v Sinclair [2005] NSWCA 465 (20 December 2005); Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.

[17] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.

[18] ibid.; Department of Education & Training v Sinclair [2005] NSWCA 465 (20 December 2005).

[19] Von Stieglitz and Comcare [2010] AATA 263 (15 April 2010) at para. 67.

[20] ibid.; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.

[21] Blagojevic v AGL Macquarie Pty Ltd; Mitchell Sears [2018] FWC 2906 (Saunders C, 23 May 2018) at para. 113.

[22] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 52.

[23] Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 6519 (25 February 1998), [(1998) 71 SASR 42]; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 52.

[24] Georges and Telstra Corporation Limited [2009] AATA 731 (24 September 2009) at para. 23.

[25] Yu and Comcare [2010] AATA 960 (1 December 2010), [(2010) 121 ALD 583]; Devasahayam and Comcare [2010] AATA 785 (14 October 2010).

[26] Wei and Comcare [2010] AATA 894 (11 November 2010).

[27] Comcare v Martinez (No 2) [2013] FCA 439 (17 May 2013) at paras 73, 76.

[28] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Hatcher VP, 13 February 2015) at para. 102.

Updated time

Last updated

02 October 2019

 

 

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      • Appendix L
      • Appendix M
      • Appendix N
      • Glossary
  • Annual Report 2015–16
    • Preliminary information
      • Letter of transmittal
      • Readers' guide
    • Part 1: Overview
      • President's report
      • General Manager's report
    • Part 2: About the Commission
    • Part 3: Performance
      • Performance summary
      • Annual performance statements 2015–16
      • Operational performance
        • Applications lodged
        • Hearings & conferences
        • Information & assistance
        • Major application types
          • Unfair dismissals
          • General protections & unlawful termination disputes
          • Anti-bullying
          • Enterprise agreements
          • Resolving disputes
          • Industrial action
        • New Approaches
        • Setting the minimum wage
        • Modern awards
        • Regulating registered organisations
        • Appeals
      • Significant decisions
      • Case studies
        • Case study: Enterprise agreements pilot
        • Case study: Patrick & the MUA
        • Case study: Encouraging regulatory compliance
    • Part 4: Management & accountability
      • Corporate governance
      • Financial management
      • Other mandatory information
    • Appendices
      • Appendix A: List of Members
      • Appendix B: Panel assignments
      • Appendix C: Member activities
      • Appendix D: Lodgment & case load statistics
      • Appendix E: Registered organisations data
      • Appendix F: Performance reporting for the RSRT
      • Appendix G: Financial statements
      • Appendix H: Subscription services
      • Appendix I: Service charter
      • Appendix J: List of requirements
      • Appendix K: Expense & resources outcome, agency resource statement & financial performance analysis
    • Glossary
    • Acronyms & abbreviations
    • Contact us
  • Annual Wage Review 2013–14
  • Anti-bullying benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is workplace bullying?
    • Who is covered by workplace bullying laws?
      • Definition of ‘worker’
      • Definition of ‘constitutionally-covered business’
        • What is a person conducting a business or undertaking?
        • What is a Territory or a Commonwealth place?
        • What is a constitutional corporation?
        • What is the Commonwealth?
    • When is a worker bullied at work?
      • What does ‘at work’ mean?
      • Risk of continued bullying
      • Reasonable management action
    • Making an application
    • Responding to an application
    • If the worker has been dismissed
    • Commission processes
      • Procedural issues
      • Representation by lawyers and paid agents
    • Evidence
    • Outcomes
      • Dismissing an application
      • Contravening an order of the Commission
    • Associated applications
      • Costs
      • Appeals
      • Role of the Court
  • Corporate Plan 2018–19
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Culture
    • 5. Capability
    • 6. Performance
  • Corporate Plan 2019–20
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Our focus
    • 5. Culture
    • 6. Capability
    • 7. Performance
  • Corporate Plan 2020-21
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Key activities
    • 5. Capability
    • 6. Risk
    • 7. Performance
  • Enterprise agreements benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is an enterprise agreement?
      • Single-enterprise agreement
      • Multi-enterprise agreement
      • Differences between single and multi-enterprise agreements
      • Greenfields agreement
    • Content of an enterprise agreement
      • Permitted matters
      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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