FWC Bulletin

28 January 2021 Volume 3/21 with selected Decision Summaries for the week ending Friday, 22 January 2021.


Decisions of the Fair Work Commission

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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, 22 January 2021.



CASE PROCEDURES – representationss.394, 596, 604 Fair Work Act 2009appealFull Bench – appeal against decision by the Commission to refuse an application by the appellant to be represented by a lawyer in unfair dismissal proceedings – Commission was not satisfied that the requirements in s.596(2) of the FW Act were satisfied – appeal is brought against an interlocutory decision – Full Bench noted courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604, whether or not s.400(1) applies – Full Bench agreed with the Commission's assessment in the decision subject to appeal; this was not a complex matter – appellant contended that it would be unfair not to allow it to be represented because it is unable to represent itself effectively – Full Bench accepted the appellant's assertion that its management team 'has no relevant training or experience in matters before the Commission'; 'have only a rudimentary appreciation of the statutory framework underpinning the substantive application' and that 'none of them have any experience in advocacy or legal analysis' – it may also be accepted the appellant would be more effectively represented if it were granted permission to be represented by a lawyer – however, in the context of this matter, the acceptance of these propositions does not carry the appellant the requisite distance – criterion to be satisfied is that 'it would be unfair not to allow the person to be represented because the person is unable to represent… itself effectively' – the matter is to be heard by way of determinative conference and the parties will be afforded an opportunity to provide written closing submissions – there is no requirement for the appellant to obtain permission for it to engage a legal representative to prepare those written submissions – Full Bench not persuaded that it would be unfair not to allow the appellant to be represented because it is unable to represent itself effectively – appellant did not rely on s.596(2)(c) in support of its application for permission to be represented by a lawyer – to the extent that Mr Govender was seeking to rely on s.596(2)(c) in opposing the appellant's application for permission to be represented by a lawyer, those submissions are misconceived – s.596(2)(c) directed at the circumstances of the person who is applying for permission, so much is clear from the words 'it would be unfair not to allow the person to be represented' – any unfairness to the other party, in this case Mr Govender, is not relevant to whether the criterion in s.596(2)(c) is established – granting permission to one party may give rise to unfairness in circumstances where the other party is a litigant-in-person – such a consideration is relevant to the second step in the s.596 process, that is whether in all the circumstances the discretion should be exercised in favour of the party seeking permission – Full Bench noted that you only get to the second step if the first step is satisfied – found the appellant had failed to establish any of the criteria in s.596(2)(a) to (c) – it followed that the discretion to grant permission for the appellant to be represented by a lawyer was not enlivened – application for permission to be represented by a lawyer refused – a s.596 application should be determined ex temporare, with brief reasons, at the conclusion of a short hearing – there is no obligation to publish written reasons in respect of such applications.

Appeal by Wellparks Holdings P/L t/a ERGT Australia against decision of Binet DP of 26 November 2020 and 22 December 2020 [[2020] FWCFB 6947] Re: Govender


[2021] FWCFB 268

Ross J
Masson DP
Wilson C


20 January 2021



CASE PROCEDURES – evidenceproduction of documentsss.185, 590, 604 Fair Work Act 2009appealFull Bench – at first instance the Commission approved the Fredon Industries P/L NSW Enterprise Agreement 2020 – the Agreement was purportedly made on 5 June 2020 when a majority of employees voting for the Agreement voted to approve it – at that time three employees were said to be covered by the Agreement – two employees voted in favour of approving the Agreement while another employee voted against its approval – not in dispute that the CEPU was, at all relevant times, a bargaining representative for the Agreement – CEPU's notice of appeal contains eight appeal grounds – the first five contend error in the Commission's decision not to make an order directed to Fredon for production of certain documents (Production Grounds) – remaining appeal grounds are concerned with the decision to approve the Agreement (Approval Grounds) – this decision deals only with the Production Grounds raised by the CEPU in its notice of appeal – uncontroversial that in considering whether to exercise its discretionary power to require production of documents under s.590(2)(c) of the FW Act the Commission will be guided by the practice followed by courts in civil proceedings when issuing subpoenas – in short compass, the test is whether the documents sought have an apparent relevance to the issues in the proceedings – Full Bench found that it was plain enough on the face of the Decision that the Commission did not consider whether to order production of some or all of the categories of documents sought by the CEPU through the prism of whether the categories of documents or some of them had an apparent relevance to the issues in the proceedings – instead, in declining to make an order, the Commission reasoned that some documents sought had been produced in the material filed by Fredon, while other documents sought were either not necessary or not relevant to matters it needed to determine or were otherwise of minimal probative value – Full Bench held that in so doing the Commission erred – the case which the CEPU sought to advance below was that some employees who voted for the Agreement were not covered by it – in addition, the CEPU contended that a combination of the circumstances of the redundancies during bargaining of persons who would have been covered by the Agreement, and the redeployment of persons who were not into roles that would be covered by the Agreement, raised reasonable grounds for believing that the Agreement was not genuinely agreed to by the relevant employees – the CEPU case was that the documents it sought were relevant because they would cast light on when the employees were employed and the capacity in which they were employed and whether they were entitled to participate in the ballot because they were employees who would be covered by the Agreement – Full Bench held that because the Commission failed to consider the application for an order for production by assessing the apparent relevance of each of the categories of documents sought, the Commission's discretion miscarried – given the grounds advanced by Fredon to resist an order for production, an order requiring production of some of the documents should have been made – it follows that the failure to make such an order arguably denied the CEPU procedural fairness – Full Bench found it was difficult if not impossible to assess whether the failure in this case deprived the CEPU of the possibility of a successful outcome without reviewing the documents which ought to have been ordered to be produced – the CEPU was certainly denied the opportunity to run the case it wanted to in opposition to the approval application, but it is a significant step to quash the Decision (and render inoperative the Agreement) only to later determine on a rehearing of the application that the objections raised are not made out – therefore, before assessing the remaining appeal grounds including whether there was a denial of procedural fairness, the Full Bench considered that it was appropriate to grant permission to appeal on the Production Grounds – Full Bench propose to make an order for production of documents and once production is complete to allow the parties an opportunity to make further submissions on whether, in light of the documents produced, the CEPU was deprived of the possibility of a successful outcome and if so what consequences should follow.

Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against decision of Dean DP of 29 September 2020 [[2020] FWCA 5198] Re: Fredon Industries P/L t/a Fredon


[2021] FWCFB 128

Hatcher VP
Gostencnik DP
Mansini DP


22 January 2021



TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed by respondent since May 2017 – applicant dismissed on 2 September 2020 after respondent formed the view that applicant had sworn at, threatened and behaved aggressively towards other employees at incidents that occurred earlier on in the day – Commission considered Briginshaw standard as allegations of serious misconduct were made – Commission found respondent had four reasons for applicant's dismissal, three related to incidents between applicant and other employees and one related to repeated conduct which had previously been subject of a verbal warning – Commission not satisfied that one of the incidents was a valid reason for dismissal however other interactions were valid reasons – respondent conducted investigation and interviewed other employees who were involved in incidents or witnessed incidents – applicant notified of reasons for dismissal in same communication that terminated his employment giving no opportunity for response before decision to dismiss was make or took effect – Commission found no acceptable reason for failing to provide applicant with opportunity to respond to serious allegations – sensible for respondent to have acted promptly when dealing with serious allegations but not appropriate for respondent to have accepted other employees evidence without notifying applicant – Commission found that applicant was not provided opportunity to consider allegations and reply – satisfied that deficiencies in process followed by respondent would not have made any difference to ultimate outcome of dismissal – applicant's dismissal not harsh, unjust or unreasonable – applicant was well aware from previous warning that conduct on 2 September 2020 was unacceptable – application dismissed.

Battle v Macleay Options Inc


[2021] FWC 237

Saunders DP


18 January 2021



TERMINATION OF EMPLOYMENT – termination at initiative of employerresignations.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by employer since 1989 – applicant experienced difficulties at work due to progressive hearing loss – applicant applied to take all accrued long service leave in a period between 26 October 2019 to 31 March 2020 – respondent approved long service leave for 2019 but not 2020 – applicant resigned on 20 June 2019 with an intended departure date of 12 June 2020, being the date the applicant would exhaust all accrued long service and annual leave – respondent accepted resignation but refused to grant full period of leave applied for – granted leave up to 13 March 2020 – following improvements in applicant's health, applicant applied to rescind resignation on 18 October 2019 – at meeting on 18 October 2019, respondent terminated applicant's employment effective 31 December 2019 – applicant's employment ended on 31 December 2019 – applicant submitted that resignation was conditional upon granting full period of leave – applicant did not seek to rescind resignation when period of leave denied – applicant's resignation letter set 12 June 2020 as outer limit of when employment would end – respondent conceded it terminated applicant's employment on 18 October 2019, effective 31 December 2019 – Commission found applicant's employment terminated at respondent employer's initiative – Commission found no valid reason for dismissal – considered termination of employment effective prior to end date of approved leave on 13 March 2020 weighed towards finding of unfairness – Commission considered bringing forward applicant's end date did not disadvantage the employer, but did disadvantage the applicant – Commission found dismissal harsh, unjust, and unreasonable – considered it would be unreasonable to reinstate applicant well after employee's preferred end date of employment – reinstatement inappropriate – Commission considered applicant's employment would have ended on 12 June 2020 – applicant submitted total loss from dismissal was remuneration and value of leave for work performed between 1 January to 12 June 2020 – Commission ordered compensation up to the compensation cap of $74,350.00, less taxation and plus superannuation.

Barton v Viva Energy Refining P/L


[2021] FWC 193

Lee C


20 January 2021



TERMINATION OF EMPLOYMENT – termination at initiative of employers.394 Fair Work Act 2009 – applicant worked as Care Assistant since 2009 – respondent implemented an Influenza Vaccine procedure every year – applicant experienced adverse reactions to influenza vaccines as a child and so declined vaccination each year – applicant submitted that in April 2020 respondent issued a letter informing her that influenza vaccinations had become mandatory – applicant declined vaccination and was subsequently advised she would not be rostered on for work from May as she would create a 'significant risk' to clients – respondent objected to unfair dismissal application on basis that there was no dismissal – submitted applicant was unfit for work as a non-vaccinated employee and on unpaid leave – submitted their vaccination policy had not changed – Commission found that respondent had changed its policy regarding vaccinations – found that respondent's assertion that applicant was on indefinite unpaid leave left her in 'limbo' and was 'entirely unsatisfactory' – found that employment came to an end in October 2020 – jurisdictional objection dismissed – substantive matter to be heard on the merits.

Glover v Ozcare


[2021] FWC 231

Hunt C


18 January 2021

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

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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/.

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

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Australian Capital Territory
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Commonwealth of Australia 2021