FWC Bulletin

20 May 2021 Volume 18/21 with selected Decision Summaries for the week ending Friday, 14 May 2021.

Contents

Decisions of the Fair Work Commission

Other Fair Work Commission decisions of note

Subscription Options

Websites of Interest

Fair Work Commission Addresses

Decisions of the Fair Work Commission

The summaries of decisions contained in this Bulletin are not a substitute for the published reasons for the Commission's decisions nor are they to be used in any later consideration of the Commission's reasons.

Summaries of selected decisions signed and filed during the week ending Friday, 14 May 2021.

 

1

CASE PROCEDURES – evidenceproduction of documentsss.604, 789FC Fair Work Act 2009appealFull Bench – in September 2020, appellant lodged anti-bullying application – in November 2020, Commission adjourned matter until respondent had opportunity to investigate appellant's allegations – in December 2020, respondent's advisor directed appellant to attend meeting with investigator (Bullying Investigation) on basis that it was a lawful and reasonable direction that appellant was required to comply with – respondent's advisor subsequently directed appellant to attend another meeting with separate investigator to discuss allegations raised against appellant by some former employees of respondent (Employee Conduct Investigation) – in February 2021, appellant applied to Commission for orders to produce documents but respondent's lawyer objected on basis that documents were subject to legal professional privilege – Commission at first instance upheld privilege claims and held that letters of engagement sent to investigators established that dominant purposes of Bullying Investigation and Employee Conduct Investigation were to obtain legal advice and prepare for litigation – appellant applied for permission to appeal on grounds the Commission erred in concluding that legal professional privilege applied – Full Bench found claims of legal professional privilege made by respondent's sole director personally could not be upheld because Bullying Investigation and Employee Conduct Investigation were not commissioned for purpose of providing legal advice to sole director personally – found that respondent's lawyers could not claim privilege either, as it was a right belonging to a client, not lawyers or any third party – 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' – Full Bench found that Commission was correct at first instance to identify correspondence from respondent's lawyers commissioning Bullying Investigation as proper basis for ascertaining dominant purpose of Bullying Investigation, as that correspondence shows the only purpose for that investigation and documents created in connection with it was to assist respondent's lawyers to provide legal advice to respondent and potentially assist in conduct of anti-bullying proceedings – Full Bench further agreed with first instance decision that privilege had not been waived but found that respondent's advisors 'disingenuously' made misleading representations to appellant about purpose of Bullying Investigation to persuade appellant that he could be lawfully and reasonably directed to attend a compulsory interview with investigator, on 'pain of dismissal' – Full Bench found that respondent intended to induce appellant to provide information to investigator which was to be used to assist in provision of legal advice to respondent about appellant's anti-bullying application – concluded that circumstances were analogous to those in Brown v BlueScope Steel in relation to waiver of privilege – concluded that because appellant was accompanied by his lawyers at investigation interview, during which his lawyers made objections before appellant provided any information of note, respondent had not waived privilege, but if respondent's conduct had 'persisted to fruition…it would have been inconsistent with the maintenance of legal professional privilege' – Full Bench found that initially, appellant was told on various occasions that Bullying Investigation was: conducted in accordance with Commission's directions, for purpose of investigating bullying allegations, required due to respondent's obligations under work health and safety laws, and required by respondent's internal bullying/harassment policy – noted that a number of the represented purposes, if true, would not be protected by legal professional privilege, for example if dominant purpose of Bullying Investigation was Commission taking into account any final or interim investigation outcomes under s.789FF(2)(a) FW Act, then it could not have been intended to be confidential because s.789FF(2)(a) was predicated on outcomes of investigation being made known to Commission – 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' – 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' – Full Bench concluded that respondent had not 'yet' claimed privilege with respect to documents relating to Employee Conduct Investigation but expressed a view that dominant purpose of that investigation was to provide legal advice to respondent and there was no evidence that privilege had been waived – Full Bench upheld Commission's first instance decision that certain documents relating to Bullying Investigation were subject to legal professional privilege – Full Bench quashed first instance decision that certain other documents were subject to legal professional privilege and remitted matter to Commission for determination – permission to appeal granted – appeal upheld in part.

Appeal by Stephen against decision of Simpson C of 24 February 2021 [[2021] FWC 972] Re: Seahill Enterprises P/L and Anor

C2019/1216

[2021] FWCFB 2623

Hatcher VP
Dean DP
Platt C

Sydney

12 May 2021

 

2

CASE PROCEDURES – apprehension of biasss.604, 789FC Fair Work Act 2009appealFull Bench – Regional Express Holdings Ltd (REX), Mr Png, Mr Burgess and Ms Penglis (jointly, the appellants) lodged a joint appeal, for which permission to appeal was required, against a decision of the Deputy President delivered on 22 February 2021 (the recusal decision) in which the Deputy President declined to recuse himself from determining a stop-bullying application made by the respondent, Mr Hanson, against the appellants – on 22 April 2021, the day before the hearing of the appeal, the Deputy President issued a decision in respect of Mr Hanson's stop-bullying application (the liability decision), in which the Deputy President made findings that Mr Hanson had been bullied at work by the individually-named respondents to his application and that there was a real risk that he would continue to be bullied at work by them – Mr Hanson's stop-bullying application was lodged on his behalf by his union, the Australian Licenced Aircraft Engineers' Association (ALAEA) – the Deputy President conducted conferences in relation to the matter on 14 and 28 May and 20 June 2019, but the matter was unable to be resolved by agreement and a determinative hearing became necessary – it was agreed that Mr Hanson's stop-bullying application should be heard together with an application lodged by the ALAEA under s.739 of the FW Act for the Commission to deal with a dispute about related matters (the dispute application) – the hearing commenced on 23 September 2019, and continued on 24 and 25 September 2019, 15 and 18 November 2019 and 18 February 2020 – the Deputy President reserved his decision in respect of both matters at the conclusion of the hearing on 18 February 2020 – the Deputy President issued a brief decision dismissing the dispute application on 29 July 2020 [[2020] FWC 3988] – on 14 August 2020, the Deputy President's Associate made a telephone call to Mr Morgan, a lawyer employed by the ALAEA who had carriage of Mr Hanson's stop-bullying application – usual practice of the Commission is that where a telephone call is made from the chambers of a Member of the Commission to a party in relation to a matter, the details of the call are noted on the file contained in the Commission's computerised Case Management System (CMS) – however, the file for Mr Hanson's application contains no notation in respect of this telephone call (nor indeed any reference to it at all) – the appellants were not informed about this telephone call – on 18 August 2020 Mr Morgan sent an email to the Deputy President's Associate – the legal representative of the appellants was copied into the email and thus became aware of the telephone call of 14 August 2020 – in due course the appellants filed a formal recusal application – the hearing of the recusal application occurred on 27 October 2020 – the Deputy President reserved his decision as to the recusal application at the end of the hearing – nothing further happened until the Deputy President issued the recusal decision dismissing the recusal application almost 4 months later – the appellants advanced 5 grounds of appeal – the appellants submitted that the Deputy President's reasons for the recusal decision, together with his conduct and communications with the appellants' lawyers prior to the hearing of their recusal application, and his conduct at that hearing, demonstrated that he failed to give genuine and realistic consideration to the matter he was called upon to consider: whether a fair-minded lay observer might reasonably have apprehended that he might not bring an impartial mind to the resolution of the issues in the stop-bullying proceeding by reason of either or both of the impugned communications – it was further submitted that this failure stemmed, in part, from a misunderstanding of the test for apprehended bias and the legal principles concerning the adducing of evidence as to the issue of apprehended bias, and also from what presented, in his communications and at the recusal hearing, as a closed-minded attitude to the consideration of whether he should recuse himself – the appellants submitted those matters reinforced the apprehension of bias that a fair-minded lay observer would feel by reason of the impugned communications – the Full Bench held that undisclosed ex parte communications between a member of a court or a tribunal and a party about matters of substance in contested litigation are a serious matter – in the High Court decision in Re JRL; Ex parte CJL Gibbs CJ said that '[i]t is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other' – in the Fair Work Commission, although some greater flexibility concerning communications between parties and the chambers of Members is sometimes allowed having regard to the requirements of s.577(b) of the FW Act, it remains a bedrock principle that, in contested inter partes proceedings, a Member should not engage in undisclosed communications with a party about a significant issue in contest – the Full Bench found that it was clear in this case that the Deputy President breached the principle stated in Re JRL by initiating, via his Associate, an ex parte telephone communication between his chambers and the legal representative of the applicant in the matter before him – this occurred after he had reserved his decision in the matter – the Full Bench held that the communication did not concern matters of a merely administrative or procedural nature but matters of substantive significance in the proceedings – it is well-established that ex parte communications may properly give rise to a reasonable apprehension of bias requiring a judge or decision-maker to recuse themselves from further dealing with a matter – Full Bench considered that the Deputy President's conclusion was incorrect – by reason, first, of his engagement (via his Associate) in ex parte communication with Mr Hanson's legal representative on 14 August 2020 and, second, his conduct in dealing with and determining the appellants' application for him to recuse himself, the Deputy President gave rise to a reasonable apprehension of bias and was consequently disqualified from further dealing with Mr Hanson's stop-bullying application – in reaching that conclusion, the Full Bench considered that all of the appellants' grounds of appeal had been made out – the Full Bench considered that it was in the public interest to grant permission to appeal and uphold the appeal – the recusal decision must be quashed – it was also necessary, regrettably, to quash the liability decision – Mr Hanson's stop-bullying application will be referred to another Member of the Commission who is in a position to deal with it expeditiously on the basis of the evidence and submissions received to date and such further evidence and submissions as the member may choose to receive.

Appeal by Regional Express Holdings Ltd and Ors against decisions of Boyce DP of 22 February 2021 [[2021] FWC 951] and 22 April 2021 [[2021] FWC 2200] Re: Hanson

C2021/1397

[2021] FWCFB 2755

Hatcher VP
Gostencnik DP
Bissett C

Sydney

14 May 2021

 

3

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for unfair dismissal – applicant engaged as plant mechanic with respondent since 2015 – applicant collided with power pole while reversing work vehicle in August 2019 – accident caused approximately $35,000 in damage and injury to an apprentice passenger in applicant's vehicle – applicant stated at interview that he believed he was travelling at about 10 km/h at the time of the accident – initial investigation in September 2019 concluded the cause of the accident was human error and poor visibility – applicant required to take additional driver training – passenger informed manager in November 2019 interview that applicant was 'egged on' by colleague in another vehicle – employer re-opened investigation in April 2020 – investigator formed view that vehicle had been travelling between 30-40 km/h – investigator considered applicant had provided misleading information in initial interview – applicant dismissed for failing to take reasonable care of his health and safety and that of his passenger, and for providing misleading information about the circumstances of the accident – Commission found little evidence that applicant provided misleading information – no witness able to provide evidence of vehicle's speed beyond personal belief – Commission satisfied applicant's lack of driving diligence provided valid reason for dismissal – respondent did not rely on allegations that applicant was 'egged on' – specific conclusions of second investigation not put to applicant – no evidence produced in hearing that was not available at time of initial investigation – unfair by respondent to revisit accident and arrive at different outcome 12 months later – Commission found dismissal unfair – Commission not satisfied employment relationship broken down to the extent it could not be reinstated – due to applicant's conduct Commission did not order compensation for loss of earnings – an order for reinstatement with continuity of service to be issued.

Brelin v Sydney Trains

U2020/14707

[2021] FWC 1314

Bull DP

Sydney

13 May 2021

 

4

GENERAL PROTECTIONS – contractor or employeess.365, 386 Fair Work Act 2009 – application to deal with contraventions involving dismissal – Mr Fogarty (Mr Fogarty or the first Applicant) alleged that either he or his company Lion Global P/L (Lion Global or the second applicant) was dismissed by either named respondent, Cybernet Australia P/L (Cybernet Australia or the first respondent) and Cybernet Manufacturing Incorporated (Cybernet Manufacturing or the second respondent) – respondents raised a jurisdictional objection is that neither Mr Fogarty nor Lion Global were dismissed within the meaning of the FW 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 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 – 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, a dismissal is required to have occurred from a contract of employment between the person dismissed and their employer – Claims against Cybernet Australia – Commission 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 FW Act – being no contract between either Mr Fogarty or Lion Global and Cybernet Australia, there can be no contract of employment between those parties – Commission found it was not possible for Cybernet Australia to have dismissed either Mr Fogarty or Lion Global – found the application insofar as it is brought against Cybernet Australia was not within the Commission's jurisdiction and must be dismissed – Claim by Lion Global against Cybernet Manufacturing – being a foreign corporation, Cybernet Manufacturing is a national system employer for the purposes of the FW Act – however, Lion Global P/L was not an employee of a national system employer because it was not and cannot be an employee – s.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 FW Act, it had no standing to bring an application under s.365 – Commission found the application insofar as it is brought by Lion Global against Cybernet Manufacturing was not within the Commission's jurisdiction and must be dismissed – Claim by Mr Fogarty against Cybernet Manufacturing – 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 – issue in dispute was whether Mr Fogarty was an employee or an independent contractor – French Accent considered – Commission found factors that tended towards a contractor relationship on the one hand and an employment relationship on the other – did not consider the Agreement to have been a mere label or subterfuge to avoid obligations – Commission concluded that Mr Fogarty was not an employee at the date his service contract was terminated – as Mr Fogarty was not an employee of Cybernet Manufacturing, he was not dismissed by Cybernet Manufacturing – Commission found that the application was not within the Commission's jurisdiction and must be dismissed.

Fogarty and Lion Global P/L v Cybernet Australia P/L and Cybernet Manufacturing Incorporated

C2021/360

[2021] FWC 2512

Anderson DP

Adelaide

12 May 2021

 

5

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a meat process worker from 15 October 2009 to 15 July 2020 – applicant was dismissed following verbal altercation with another production line worker – respondent alleged that the applicant's conduct was threatening in nature – applicant denied threatening respondent – applicant stated that she had said 'I feel like knocking her off her perch' – respondent stated that applicant said 'if you talk to me like that again, I will hit you' – Commission considered the events that had led to the altercation – the busy bacon line and failure of the respondent to have the right equipment on-hand was found to have caused significant stress to both parties and was considered relevant to the altercation – Commission found inconsistencies and identical wording in the respondents evidence cast doubt over the independence and credibility of witness statements – conversely, applicant's evidence was found to be consistent and reliable – Commission found that the applicant made frustrated remarks though did not make actual threats – concluded there was no valid reason for the dismissal – Commission found dismissal was disproportionate to the gravity of the actual conduct – the procedure used was deficient leading to unfairness of the process – found the respondent relied on the applicant's prior disciplinary history as a factor in terminating employment though did not communicate this to the applicant for response in the show cause letter – the respondent also did not provide the applicant with an investigation report or summary of investigation findings for further response – Commission not satisfied that the applicant was given an opportunity to respond – the applicant's length of tenure, absence of proven misconduct and contested nature of the prior warning meant dismissal was harsh – Commission ordered reinstatement and made an order to maintain continuity of employment – no further renumeration ordered as the Commission determined the applicant's misconduct was unacceptable.

Whitfield v Primo Foods P/L

U2020/10426

[2021] FWC 2729

Booth C

Brisbane

13 May 2021

Other Fair Work Commission decisions of note

Lumsden v Ringthane P/L t/a Tradewinds Hotel

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for unfair dismissal – applicant primarily performed casual bar tending duties – not long after the Food and Beverage Manager commenced in his role the applicant admitted he took a disliking to him – the applicant did not approve of the Manager's interactions with other staff members – the applicant used a variety of mediums including Facebook to encourage his colleagues to make complaints about the Manager – applicant was dismissed after a confrontation where the applicant was alleged to have pointed a knife at the Manager – Commission satisfied the applicant's conduct constituted a valid reason for his dismissal – found dismissal of the applicant was not harsh, unjust nor unreasonable – Commission held the applicant's conduct directed to his manager was inappropriate and justified dismissal – application dismissed.

U2020/13992

[2021] FWC 816

Binet DP

Perth

10 May 2021

Richardson v Aaction Traffic P/L

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for unfair dismissal – applicant had known Managing Director of respondent socially for years before commencing employment in 2018 as traffic controller on $50,000 salary – subsequently accepted new role with $75,000 salary – applicant submitted that there was no mention of a requirement to be on-call after hours when employment commenced – in 2020 asked to be removed from on-call roster because of negative effect on his family life and mental health – respondent submitted situation was untenable and other employees complained about resulting lack of 'team work' – advised applicant that on-call work was required or applicant would have to return to previous position – applicant told respondent he wanted his current position to be terminated before he would consider any other positions within the respondent's business – respondent emailed applicant asking for reconsideration by COB and also attached the termination letter of his current position to the email – applicant enlisted union representative who put forward only two options to either reinstate applicant or pay him $50,000 to 'go away quietly' – respondent considered this to be 'emotional blackmail' and bordering on 'extortion' and terminated applicant's employment with 3 weeks' pay in lieu of notice – respondent contended that applicant brought application for 'collateral purposes' as a vendetta against the respondent and Managing Director – Commission found refusal to participate in on-call roster constituted a valid reason for dismissal – satisfied that the applicant was not unfairly dismissed – application dismissed.

U2020/11417

[2021] FWC 2650

Lake DP

Brisbane

11 May 2021

Subscription Options

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Websites of Interest

Attorney-General’s Department - www.ag.gov.au/industrial-relations - provides general information about the Department and its Ministers, including their media releases.

AUSTLII - www.austlii.edu.au/ - a legal site including legislation, treaties and decisions of courts and tribunals.

Australian Building and Construction Commission www.abcc.gov.au/ - regulates workplace relations laws in the building and construction industry through education, advice and compliance activities.

Australian Government - enables search of all federal government websites - www.australia.gov.au/.

Federal Register of Legislation - www.legislation.gov.au/ - legislative repository containing Commonwealth primary legislation as well as other ancillary documents and information, and the Federal Register of Legislative Instruments (formerly ComLaw).

Fair Work Act 2009 - www.legislation.gov.au/Series/C2009A00028.

Fair Work (Registered Organisations) Act 2009 - www.legislation.gov.au/Series/C2004A03679.

Fair Work Commission - www.fwc.gov.au/ - includes hearing lists, rules, forms, major decisions, termination of employment information and student information.

Fair Work Ombudsman - www.fairwork.gov.au/ - provides information and advice to help you understand your workplace rights and responsibilities (including pay and conditions) in the national workplace relations system.

Federal Circuit Court of Australia - www.federalcircuitcourt.gov.au/.

Federal Court of Australia - www.fedcourt.gov.au/.

High Court of Australia - www.hcourt.gov.au/.

Industrial Relations Commission of New South Wales - www.irc.justice.nsw.gov.au/.

Industrial Relations Victoria - www.vic.gov.au/industrial-relations-victoria.

International Labour Organization - www.ilo.org/global/lang--en/index.htm - provides technical assistance primarily in the fields of vocational training and vocational rehabilitation, employment policy, labour administration, labour law and industrial relations, working conditions, management development, co-operatives, social security, labour statistics and occupational health and safety.

Queensland Industrial Relations Commission - www.qirc.qld.gov.au/index.htm.

South Australian Employment Tribunal - www.saet.sa.gov.au/.

Tasmanian Industrial Commission - www.tic.tas.gov.au/.

Western Australian Industrial Relations Commission - www.wairc.wa.gov.au/.

Workplace Relations Act 1996 - www.legislation.gov.au/Details/C2009C00075

Fair Work Commission Addresses

 

Australian Capital Territory
Level 3, 14 Moore Street
Canberra 2600
GPO Box 539
Canberra City 2601
Tel: 1300 799 675
Fax: (02) 6247 9774
Email: canberra@fwc.gov.au

New South Wales

Sydney

Level 10, Terrace Tower
80 William Street
East Sydney 2011
Tel: 1300 799 675
Fax: (02) 9380 6990
Email: sydney@fwc.gov.au



Newcastle

Level 3, 237 Wharf Road,
Newcastle, 2300
PO Box 805,
Newcastle, 2300

 

 

 

Northern Territory
10th Floor, Northern Territory House
22 Mitchell Street
Darwin 0800
GPO Box 969
Darwin 0801
Tel: 1300 799 675
Fax: (08) 8936 2820
Email: darwin@fwc.gov.au

Queensland
Level 14, Central Plaza Two
66 Eagle Street
Brisbane 4000
GPO Box 5713
Brisbane 4001
Tel: 1300 799 675
Fax: (07) 3000 0388
Email: brisbane@fwc.gov.au

South Australia
Level 6, Riverside Centre
North Terrace
Adelaide 5000
PO Box 8072
Station Arcade 5000
Tel: 1300 799 675
Fax: (08) 8308 9864
Email: adelaide@fwc.gov.au

 

 

 

Tasmania
1st Floor, Commonwealth Law Courts
39-41 Davey Street
Hobart 7000
GPO Box 1232
Hobart 7001
Tel: 1300 799 675
Fax: (03) 6214 0202
Email: hobart@fwc.gov.au

Victoria
Level 4, 11 Exhibition Street
Melbourne 3000
PO Box 1994
Melbourne 3001
Tel: 1300 799 675
Fax: (03) 9655 0401
Email: melbourne@fwc.gov.au

Western Australia
Floor 16,
111 St Georges Terrace
Perth 6000
GPO Box X2206
Perth 6001
Tel: 1300 799 675
Fax: (08) 9481 0904
Email: perth@fwc.gov.au

 

Out of hours applications

For urgent industrial action applications outside business hours, please refer to our Commission offices page for emergency contact details.

The address of the Fair Work Commission home page is: www.fwc.gov.au/
 

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Commonwealth of Australia 2021