Fair Work Commission

Matter reviewed:  [2014] FWCFB 2293

Summary

Watson VP, Boulton J and McKenna C

CASE PROCEDURES – appeals  – ss.400, 604 Fair Work Act 2009  – Full Bench  – appeal against decision that dismissal was not harsh, unjust or unreasonable – permission to appeal in unfair dismissal matters can only be granted if in public interest to do so – way in which public interest may be attracted described in GlaxoSmithKline – decision under appeal discretionary – appeal bench can only substitute its view on matters if error of appealable nature in decision at first instance – considered House v The King – Full Bench did not consider permission should be granted arising from matters advanced by appellant concerning operation of non-excluded workers' compensation legislation – grounds of appeal did not disclose any error in exercise of Commissioner's discretion or any other error – individually or collectively, grounds of appeal do not attract public interest – permission to appeal refused – application dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [WAD167/2014] under s 39B of the Judiciary Act filed 23 June 2014.

Status

Judgment handed down on 10 November 2014 by Dowsett, Tracey and Katzmann JJ. The Full Court dismissed the application. On 5 December 2014 the Full Court awarded costs against the appellant for instituting proceedings without reasonable cause.

Matter reviewed:  [2013] FWCFB 8960

Summary

SDP O'Callaghan, DP Hamilton and Gregory C

CASE PROCEDURES – costs – unreasonable act or omission – ss.401, 611 Fair Work Act 2009 – Full Bench – application for costs lodged by applicant after initial unfair dismissal matter – employee lodged appeal – appeal refused – subsequent costs application lodged by employer after appeal – s.400A FW Act had no application – s.401 FW Act as it applied at relevant time considered – s.401 refers to concept of whether reasonably apparent that no reasonable prospect of success existed – actions or omissions by legally qualified and trained people measured against higher standard than unrepresented party – considered Goffet, Brazilian Butterfly, and Stagno regarding unreasonable act or omission – concept of vexatious considered in Holland – phrase 'without reasonable cause' considered in Read – noted Commissioner's decision with respect to remedy involved exercise of discretion – initial costs application – terms of s.401(1)(a) – evidence did not establish that employer's representatives encouraged response to matter when no reasonable prospect of success – evidence did not establish representatives' actions unreasonable act or omission – employer presented arguable case – not satisfied employer's behaviour in responding to application involved unreasonable act or omission – initial costs application refused – second costs application – s.401 – circumstances lead Full Bench to conclude employee's representative engaged in unreasonable actions – costs paid pursuant to s.401 – given extraordinarily high costs associated with matter, chances of appeal achieving new result which benefited employee extremely remote – appeal weak – offer made highly advantageous to employee – representative should have advised employee to accept offer – employee's representative's actions unreasonable – costs should apply from date of settlement offer – s.611 – not satisfied employee's actions vexatious – costs application under s.611 rejected – costs awarded against employee's representative pursuant to s.401 – matter referred to Drake SDP for assessment of costs.

Court summary

Application [VID78/2014] for relief under section 39B Judiciary Act 1903

Status

Matter settled following mediation.

Matter reviewed [2014] FWCFB 1846

Summary

Boulton J, Harrison SDP and Roe C

Modern Awards Review 2012 - Junior rates - Application by the SDA to vary the General Retail Industry Award 2010 to provide for adult rates to be paid to 20 year old employees - variation granted and determinations varying award issued.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD140/2014] under section 562 and 563 of the Fair Work Act 2009, sections 21, 22 and 23 of the Federal Court of Australia Act 1976 and section 39B of the Judiciary Act filed 8 April 2014. On 16 June 2014 the National Retail Association also filed an interlocutory application seeking an order that the order of the Commission of 11 April 2014 be stayed or, in the alternative, to prevent the orders of the Commission taking effect. On 24 June 2014 Collier J dismissed the interlocutory application.

Status

The Full Court handed down their judgment on 11 September 2014. The Full Court found that none of the grounds upon which the Commission's decision was challenged had been made out and dismissed the appeal.

Matter reviewed: [2014] FWC 2062

Summary

Asbury DP

Application to deal with a dispute - Application of clause 32 of the Agreement in relation to redundancy - Obligation to consult - Finding that BHP has not met obligations to consult in relation to redundancies - Order issued

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD192/2014] under section 562, 563 and 739(5) of the Fair Work Act 2009, sections 21, 22 and 23 of the Federal Court of Australia Act 1976 and section 39B of the Judiciary Act filed 13 May 2014.

Status

Discontinued by the applicant.

Matter reviewed:  [2014] FWCFB 1996

Summary

Hatcher VP, Watson VP, Boulton SDP, Roberts C and McKenna C

MODERN AWARDS – review  – s.604 Fair Work Act 2009  – Sch.5, Item 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009  – appeal  – Full Bench  – appeal against decision of Gooley DP rejecting large range of proposals to vary  Restaurant Industry Award 2010  under Modern Awards Review 2012 – Restaurant and Catering Association of Victoria (RCAV) appealed only limited aspects of decision – appealed refusal to grant alternative application to reduce Sunday penalty rate from 50% to 25% and changes to classification structure – majority decision  – Full Bench majority decision granted permission to appeal – subject matter sufficient to attract public interest and because errors identified in Deputy President’s decision – decision concerning Sunday penalty rates attended by appealable error – decision determined by reference to significant change in circumstances test – therefore matter not considered in accordance with relevant requirements of Transitional Act – necessary for Full Bench to re-determine RCAV case regarding reduced Sunday penalty rate – RCAV’s case regarding benefits to employment and business turnover not made out – accepted Sunday penalty rates limited effect on owner-operators preference to work on Sundays in preference to engaging staff on Sundays – RCAV proposition that level of disability for working Sunday is no higher than on Saturday rejected – special emphasis on Sunday as family time in Australian society – 50% penalty rate generally appropriate – for transient and lower-skilled causal employees who mainly work weekends and are primarily younger workers, casual loading plus penalty rate overcompensates for Sunday work – in that respect award not meeting s.134 FW Act modern awards objective – award varied from 1 July 2014 to affect casual employees employed in Introductory Level or Level 1 and 2 pay grades – Sunday penalty rate shall not exceed 50% in total for casual employees in those classifications – considered Deputy President erred in respect of two of proposed changes to classification structure – award not meeting modern awards objective with respect to Food and Beveridge attendants Grade 1 and 2 – classifications artificially limit use of classifications – award varied to remove limitation – minority decision  – also granted permission to appeal and found decision attended by appealable error – preferred different outcome to majority decision.

Court summary

Application [NSD598/2014] pursuant to section 39B of the Judiciary Act filed 16 June 2014.

Status

The application was dismissed by the Full Court on 25 August 2014. The Full Court held that the applicant failed to establish that it had not been afforded procedural fairness.

Matter reviewed: [2013] FWCFB 6191

Summary

Lawler VP, Hamberger SDP, Cribb C

TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – cross appeal – majority – accessing, sending or receiving and storing pornography – not a separate species of misconduct to which special rules apply – form of misconduct to which general principles relating to unfair dismissals must be applied – leave to appeal granted – public interest – relationship between valid reason and harsh, unjust, unreasonable – meaning of valid reason – Selvachandran v Peteron Plastics P/L – valid reason is a reason that is sound, defensible or well-founded – facts in Queensland Rail distinguished – majority found that the issue in original unfair dismissal before the Commissioner whether dismissal was disproportionate disciplinary sanction – Commissioner focused erroneously on valid reason – rehearing – majority held dismissals were harsh – decision and order quashed remedy remitted to Vice President for determination – dissenting decision – adopted principles from GlaxoSmithKline Australia P/L v Makin – permission to appeal declined in relation to both appeals – no public interest.

Court summary

Application [VID1082/2013] under section 562 of the FW Act and section 39B of the Judiciary Act filed 10 October 2013. Listed for interlocutory hearing on 21 October 2013

Status

A Full Court of Besanko, Jessup and Bromberg JJ handed down their judgment on 23 July 2014. The Full Court held that the Full Bench of the Commission did not err in granting permission to appeal to the first and second respondents and dismissed their application. With respect to the third respondnet, the Full Bench failed to consider whether it was in the public interest to grant permission to appeal. The appeal insofar as it related to the third respondent was allowed and the orders of the Full Bench were quashed.

Matter reviewed: [2013] FWCFB 1846

Summary

Watson SDP, Hamberger SDP and Cargill C

CASE PROCEDURES – appeals  – ss.604, 611 Fair Work Act 2009  – Full Bench  – costs  – decision concerned application for costs in respect of appeal filed against decision of Commissioner in respect of an unfair dismissal application – Commissioner found no valid reason for dismissal and that it was harsh, unjust and unreasonable ordering reinstatement – decision appealed – Full Bench decided Commissioner was in error failing to find there was a valid reason for dismissal – despite finding error there were no others established by grounds of appeal – applications seeking costs in relation to both proceedings at first instance before Commissioner and in respect of appeal before Full Bench – dismissed for making changes to flight bookings in manner considered to be unauthorized and in breach of fare rules – no evidence that acted in fraudulent or dishonest way in making numerous changes to bookings nor obtained any benefits for providing upgrades to passengers – Commissioner was not satisfied grounds in s.611 were established warranting exercising discretion to award costs – not satisfied any adequate basis had been made out for finding appeal was made either vexatiously or without reasonable cause – not persuaded on objective basis it should have been reasonably apparent that at time appeal was made there were no reasonable prospects of success – not persuaded there was any objective evidence to support submission appeal was strategy to destroy and “bleed him financially and emotionally” – application for costs dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD1301/2013] filed 8 July 2013.

Status

Judgment handed down by Flick J on 2 May 2014. The Court ordered that the decisions of the Deputy President and the Full Bench be set aside.

The Australian Nursing and Midwifery Federation has now appealed the decision of Flick J. Application NSD507/2014 was filed on 22 May 2014. The appeal was listed for hearing on 14 November 2014.

Matter reviewed: [2014] FWC 2632

Summary

Ross J

MODERN AWARDS - Four yearly review of superannuation default fund terms in modern awards - potential conflict of interest of expert panel members - expert panel reconstituted pursuant to s.622 to include President of the Commission.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD447/2014] under section 562 and 563 of the Fair Work Act 2009, sections 21, 22 and 23 of the Federal Court of Australia Act 1976 and section 39B of the Judiciary Act filed 6 May2014.

Status

On 6 June 2014 Gilmour J, Flick J and Perram J declared the Direction given by the President on 17 April 2014 invalid.

Matter reviewed: [2013] FWCFB 8255

Summary

Catanzariti VP, Cloghan C, Hampton C

TERMINATION OF EMPLOYMENT – costs – ss.394, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision and order granting security for costs and subsequent order dismissing unfair dismissal application – extension of time granted – Full Bench granted permission to appeal first decision and order – public interest – manifests injustice – merits of original unfair dismissal application not considered in determining whether to grant security for costs order – Full Bench held second order disclosed appealable error – appellant not afforded procedural fairness – appeal upheld – orders quashed – matter remitted to Commissioner to conduct hearing pursuant to s.394.

Court summary

Application [WAD423/2013] for relief under section 562 Fair Work Act 2009 and section 39B Judiciary Act 1903

Status

Notice of discontinuance filed by the applicant.

Matter reviewed:  [2013] FWCFB 3369

Summary

Watson VP, Sams DP and Riordan C

TERMINATION OF EMPLOYMENT – misconduct – enterprise agreement provision – ss.400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal and cross appeals relating to application for unfair dismissal remedy and application to deal with dispute under enterprise agreement – employee challenged finding that reinstatement not appropriate – employer challenged finding that termination was harsh – also challenged order to set aside directions issued in respect of material to be filed regarding remedy – employer's appeal against merits decision lodged more that 21 days after decision handed down – majority – employer's appeals – prepared to extend time for filing of employer's appeal given history of matter and availability of appeal against ultimate decision of Deputy President – conclusion that dismissal was harsh a discretionary decision – Deputy President well placed to make assessment as to whether misconduct was serious – no error in approach – Deputy President correctly identified need for additional degree of seriousness to warrant description of serious misconduct – Full Bench did not believe Deputy President erred in approach or in reaching conclusion – decision very much exercise of discretion on specific facts in the circumstances – not satisfied in public interest to grant employer permission to appeal – employee's appeal – determination whether reinstatement appropriate a discretionary decision – in highlighting issues of terms of enterprise agreement and role of Chief Investigator, Deputy President was inviting parties to address question directly – did not read analysis as confining considerations to those two matters – concluded Deputy President made no mistake of fact in assessment of evidence on practicality of reinstatement – Deputy President aware of obligations and provisions of FW Act – did not consider Deputy President's discretion miscarried in relation to reinstatement – permission to appeal granted because of importance of terms of enterprise agreement to question of remedy – appeal dismissed – no sound case to overturn procedural decision to set aside directions in this case – Deputy President adopted approach of sequentially determining aspects of case – reasonable to await final position on preceding elements before assessing compensation, if relevant – permission for procedural appeal not granted – minority – only disagreed with majority on question of remedy – to extent Deputy President's analysis of employee's 'position' for purposes of reinstatement involved error of fact, it was significant error of fact – decision affected by error within boundaries of House v R – agreed dismissal was harsh, unjust and unreasonable – mitigating factors identified by Deputy President weigh in favour of reinstatement as appropriate remedy – significant weight should be given to term of enterprise agreement – failure to make arbitral determination of employee's dispute resolution application involved failure to properly exercise Commission jurisdiction – that error constitutes separate and additional basis to grant permission to appeal – reinstatement is remedy required to ensure employer observes terms of enterprise agreement – Commissioner would make determination requiring reinstatement – remains open for employer to deal with employee in accordance with terms of enterprise agreement – would allow appeal, quash decisions and order of Deputy President and make order requiring reinstatement with continuity

Court summary

Application [NSD 2389/2013] for relief under section 39B Judiciary Act 1903

Status

Discontinued by the applicant.

Matter reviewed [2013] FWCFB 4960

Summary

Acton SDP, Sams DP and Macdonald C

TERMINATION OF EMPLOYMENT – extension of time – ss. 394, 400, 604, 607 – appeal – Full Bench – appellant employee sought to introduce new evidence or information on appeal about the notice of dismissal afforded to him by respondent employer, about his lack of preparedness for proceedings before Commission in first instance and about matters he thought he should have presented but did not present – majority in J.J. Richards recognised that s.607(2) confers a discretion on a Full Bench hearing on appeal to "admit further evidence" and "take into account any other information or evidence" and that the principles governing the admission of fresh evidence on appeal in the courts provide a useful guide to exercise of discretion – new evidence or information appellant sought to have admitted or taken into account on appeal was evidence or information that was available to appellant at the time matter was heard by Commission in first instance – new evidence or information not sufficient to lead to satisfaction that there are exceptional circumstances as required by s.394(3) for allowing appellant further period for the making of his unfair dismissal remedy application – Full Bench declined to admit or take into account appellant's new evidence or information – Full Bench was not persuaded Commission in first instance made an appealable error in its decision to refuse appellant an extension of time – Commission in first instance took into account appellant's application to Queensland Industrial Relations Commission (QIRC) and the period within which it was made but did not consider that an exceptional circumstance – finding was reasonably open – Commission in first instance considered appellant's delay between him receiving advice about his application to the QIRC and him making his unfair dismissal remedy application to Commission but found no meaningful explanation was provided for delay and no exceptional circumstances were evident – such findings were also reasonably open – significant error of fact not established – appellant's appeal did not raise matters that attract public interest in granting permission to appeal – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [QUD570/2013] filed 22 August 2013.

Status

Judgment handed down by Collier J on 8 April 2014. The application was dismissed.

Matter reviewed   [2012] FWAFB 3540

Summary

Watson VP, McCarthy DP and Jones C

TERMINATION OF EMPLOYMENT – performance – s.604 Fair Work Act 2009 – appeal – Full Bench – appellant dismissed for alleged poor performance following warnings – various grounds of appeal – whether denial of natural justice in delay in handing down decision and errors in findings and law – delay longer than could be reasonably expected – however decision discloses exhaustive process of analysis of complex matter and full and balanced consideration of matters raised – findings not shown to be obviously incorrect – in all circumstances delay did not make decision unsafe or amount to material unfairness – delay does not constitute grounds for allowing appeal – fundamental facts of matter beyond dispute – conclusion that valid reason for dismissal correct – no error in approach in considering all other relevant circumstances and finding that termination harsh, unjust or unreasonable – no issues of general principle raised – decision neither counter-intuitive or unjust – no relevant legal principles misapplied – public interest not attracted – permission to appeal denied – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID705/2012] for judicial review brought under s 39B of the  Judiciary Act 1903  , and also a range of claims brought under the original jurisdiction of the Court (s 562 of the  Fair Work Act 2009  (the FW Act) refers):

• an application for penalties under s 546 of the FW Act for breach of the applicable certified agreement
• an application for reinstatement and compensation under s 545 of the FW Act
• a claim for damages for breach of contract
• a claim for damages for negligence

Status

Judgment handed down on 4 April 2014 by Mortimer J. All of the claims set out above were rejected except for the breach of contract claim.

Matter reviewed: [2013] FWCFB 2022

Summary

Lawler VP, Sams DP and Lewin C

INDUSTRIAL ACTION – extension of protected industrial action period – ss. 459, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision and order granting extension of 30 day period in which industrial action authorised – issue is whether Commission has jurisdiction to extend 30 day period where application to extend made after expiry of 30 day period – several single member decisions have held that power to extend may be exercised after 30 day period has expired – issue has not been considered by Full Bench – public interest in Full Bench considering issue – permission granted – meaning of “extend” discussed – appellant argued that ordinary and natural meaning of “extend” presupposes continued existence of thing being extended such that power to extend can’t be exercised once 30 day period expired – not satisfied meaning that narrow – dictionary definitions show range of meanings – appellant relied on examples of statutes where express provision made for extension after expiry of period – held: consistent legislative does not exist in real world – no established rule of construction that statutory power to “extend” cannot be exercised after expiry of period unless expressly empowered – purpose of limitation in s.459(1)(d) in relation to commencement time of industrial action not identified in explanatory memorandum – best inference is that intended to ensure authorisation in relation to industrial action could only be relied on if authorisation remained relatively fresh – many cases where conducive to purposes and objects of Act for 30 day period to be extended – construction advanced by appellant likely to lead to greater and sometimes unnecessary resort to protected industrial action – construction contended by union better attuned to objects of Act – appellant also relied on prospect of extension having retrospective effect to confer protection on action taken after expiry of 30 day period but before extension granted – not persuaded that on proper construction, extension order would retrospectively confer protection on industrial action that was unprotected at time it was taken – power conferred by s.459(3) may be exercised after 30 day period has expired, including where application made after expiry of that period – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia

Application [VID281/2013] under section 562 of the FW Act and section 23 of the Federal Court of Australia Act 1976 filed 15 April 2013

Listed for hearing on 17 April 2013.

Status

Judgment handed down on 19 February 2014 by North, Dowsett, Bromberg JJ. The Federal Court ordered that the application be dismissed.