FWC Bulletin

1 September 2022 Volume 21/22 with selected Decision Summaries for the month ending Wednesday, 31 August 2022.

Contents

Consultation: New enterprise agreements statistical reports

Hair and Beauty Industry Award extensively varied

Decisions of the Fair Work Commission

Other Fair Work Commission decisions of note

Subscription Options

Websites of Interest

Fair Work Commission Addresses

Consultation: New enterprise agreements statistical reports

22 Aug 2022

We propose publishing a new statistical report each fortnight, providing data from enterprise agreement approval applications lodged with the Fair Work Commission.

The report will include a fortnightly update on the average annualised wage increase for enterprise agreement approval applications lodged, and a monthly update on the number of applications made relating to enterprise agreements.

The Commission’s proposed statistical report is intended to complement published  information related to approved enterprise agreements available from the Commonwealth Department of Employment and Workplace Relations .

Read the President's statement – Statistical report: Enterprise agreements & other bargaining data (pdf).

Hair and Beauty Industry Award extensively varied

09 Aug 2022

Existing awards are being changed extensively as a result of the 4 yearly review of modern awards. The Hair and Beauty Industry Award has also been reviewed and rewritten using plain language principles, to make it easier to understand and use.

Most modern awards have already been changed, and are now available from the Find an award page on our website.

The technical and drafting matters for the Hair and Beauty Industry Award 2010 have been completed. The varied award has been issued and started operating on 9 August 2022.

Any outstanding substantive or common issues claims that have not yet been determined will be incorporated into the varied award by way of a subsequent variation determination.

If you are subscribed to updates for the Hair and Beauty Industry Award, your subscription to our email service will not change.

You can read the new version of the award on the Find an award page on our website.

To see the decisions relating to this award, go to [2022] FWCFB 136 and [2022] FWCFB 117.

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 month ending Wednesday, 31 August 2022.

 

1

TERMINATION OF EMPLOYMENT – contractor or employeess.394, 400, 604 Fair Work Act 2009appealFull Bench – decision at first instance concerned an unfair dismissal application made by Mr Franco arising from the termination of his engagement as a delivery driver in the appellant's meal delivery business – Commission found Mr Franco was (1) an employee (2) who had been unfairly dismissed and (3) ordered reinstatement, continuity of employment and lost pay – the appellant contended the decision was in error in respect of all 3 of these determinations – order for Mr Franco's reinstatement stayed by consent order – appeal was heard on 19 July 2021 – parties' written and oral submissions referred to both the terms of the successive contracts between Mr Franco and the appellant and the operation in practice of the working relationship between them as relevant to the determination of the issue in dispute as to whether Mr Franco had been an employee of the appellant – in approaching the matter this way, both parties proceeded on an understanding (shared by the Commission at first instance, and the Full Bench at the time) that, in accordance with the principles stated by the High Court in a number of decisions including Stevens and Hollis, it was necessary to look at the totality of a working relationship in order to determine whether it is one of employment or is an independent contracting relationship – following the hearing the Full Bench reserved its decision – on 4 August 2021 the High Court delivered its judgment in Rossato which concerned the question of whether a particular employee was employed on a casual basis – however, the judgment of the plurality contained a number of statements which called into question the previously-understood approach to identifying an employment relationship based upon Stevens and Hollis – on 6 August 2021 the Full Bench issued a statement which referred to the relevant passages in Rossato and expressed the view that Rossato potentially raised a number of questions relevant to the determination of this appeal [[2021] FWCFB 4840] – Full Bench also noted that the High Court had granted special leave to appeal against the Federal Court Full Court decisions in CFMMEU v Personnel Contracting P/L and Jamsek v ZG Operations P/L with these appeals listed for hearing before the Court on 31 August and 1 September 2021, and said that the determination of these appeals was likely to provide authoritative guidance in relation to the principal questions in the matter before the Full Bench – Full Bench decided to defer the determination of this appeal until judgments were handed down in the High Court appeals and that the stay order would continue to operate [[2021] FWCFB 5015] – on 9 February 2022 the High Court published its decisions in Personnel Contracting and Jamsek – this appeal was then listed for a directions hearing on 14 February 2022 and following this the Full Bench issued directions for the filing of further written submissions ahead of a further hearing – the further hearing was held on 14 June 2022 – Full Bench found that had this appeal been concerned only with the Commission's findings at first instance it would not have been satisfied that the grant of permission to appeal would be in the public interest – however, the question of whether or not Mr Franco was an employee of Deliveroo gives the appeal a different dimension: it is a jurisdictional question, and also one that is of broader potential interest and application since it concerns the application of the principles in Personnel Contracting and Jamsek to the 'gig economy' – Full Bench considered that the grant of permission to appeal would be in the public interest, and permission was therefore granted – Full Bench respectfully adopt the summary of the key propositions in Personnel Contracting stated in the Full Bench decision in Chambers and O'Brien v Broadway Homes P/L [[2022] FWCFB 129] – '(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties. (2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms. (3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract. (4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer. (5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship. (6) The label or characterisation placed on the relationship by the contract is not relevant even as a "tie breaker", or at least it is not determinative.' – Full Bench held that it was 'relevant to this appeal to add one further proposition, namely that a contractual freedom on the part of the party performing the relevant work to accept or reject any offer of work and to work for others is not necessarily a contraindication of employment and may rather be consistent with casual employment' – Full Bench found no dispute between the parties that the 2019 Agreement applied at the time of the termination of Mr Franco's engagement and that it comprehensively set out in whole the contractual rights and obligations of the parties – accordingly, consistent with Personnel Contracting, the analysis of the question of whether Mr Franco was an employee of Deliveroo at the time of his termination must proceed by reference to the terms of the 2019 Agreement – the Full Bench held that this 'obliged us to ignore certain realities concerning way in which the working relationship between Mr Franco and Deliveroo operated in practice' – held that if the Full Bench had been permitted to take the above matters into account, as the Commission did at first instance, the Full Bench would have reached a different conclusion in this appeal – Full Bench stated 'As a matter of reality, Deliveroo exercised a degree of control over Mr Franco's performance of the work, Mr Franco presented himself to the world with Deliveroo's encouragement as part of Deliveroo's business, his provision of the means of delivery involved no substantial capital outlay, and the relationship was one of personal service. These matters, taken together, would tip the balance in favour of a conclusion that Mr Franco was an employee of Deliveroo. However, as a result of Personnel Contracting, we must close our eyes to these matters.' – Full Bench concluded that the Commission erred in finding that Mr Franco had been an employee of the appellant immediately prior to the termination of his engagement – the consequence of this conclusion was that Mr Franco was not a person protected from unfair dismissal within the meaning of s.382 of the FW Act and the Commission had no jurisdiction to entertain his unfair dismissal application nor power to grant him the remedies that it did – appeal upheld – Full Bench determined that the Commission's decision and order at first instance must be quashed, and Mr Franco's unfair dismissal application must be dismissed as incompetent.

Appeal by Deliveroo Australia P/L against decision of Cambridge C of 18 May 2021 [[2021] FWC 2818] Re: Franco

C2021/3221

[2022] FWCFB 156

Hatcher VP
Catanzariti VP
Cross DP

Sydney

17 August 2022

 

2

ENTERPRISE AGREEMENTS – dispute about matter arising under agreementvaccination requirementappealFull Benchss.604, 739 Fair Work Act 2009 – appellant lodged appeal regarding his application under s.739 of the Fair Work Act regarding the University of Tasmania Staff Agreement 2017 – 2021 – Full Bench found that the Commission at first instance erred in finding that there was no jurisdiction for the Commission to arbitrate the dispute – at first instance, Commission characterised the subject matter of the dispute by reference to the fact that appellant's application posed as the question to be determined whether the respondent's vaccination requirement was lawful and reasonable – Commission at first instance considered that the dispute did not relate to the application of any term of the Agreement and was thus beyond jurisdiction – Full Bench disagreed and concluded that appellant's contention that the vaccination requirement was not a lawful and reasonable direction followed directly from his contention that the consultation requirements of clause 12 of the Agreement had not been complied with – appellant's case was that compliance with clause 12 was a condition precedent to the lawful introduction of any 'significant change' including a vaccination requirement – Full Bench found that was sufficient to render the dispute one about the application of clause 12 of the Agreement – Commission's decision at first instance was that the Commission did not have jurisdiction because the Agreement ceased to apply to appellant from date his employment was terminated – Full Bench noted that this was contrary to a long line of Commission authority [Kentz; Broadspectrum; Goonyella] – where an application under s.739 has been made when an employment relationship remains on foot, the Commission's powers to deal with the dispute are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end – Ausgrid distinguished – Simplot has been overtaken by the Full Bench decision in Falcon Mining, which was issued after the Commission's first instance decision in this matter – Full Bench found that Commission at first instance erred in concluding that the Commission had a discretion whether to arbitrate or not, by reference to the wording of clause 15.5(b) which states 'The FWC may resolve the dispute by conciliation in the first instance, and by arbitration if conciliation fails to resolve the dispute' – Full Bench did not accept that the use of the word 'may' in clause 15.5(b) connoted a discretion as to whether to arbitrate or not – to read the word 'may' as conferring a discretion would mean the Commission has the discretion to neither conciliate nor arbitrate (that is, to do nothing) – the better reading is that the word 'may' is used to identify what the Commission is permitted to do – that is, under clause 15.5(b), the Commission may arbitrate only if conciliation fails and may not do so otherwise – Full Bench found there was no proper basis for Commission's conclusion at first instance that the most favourable outcome that appellant could obtain would be an order for respondent to undertake further consultation in compliance with clause 12, being a process in which appellant could not participate because he was no longer an employee – Full Bench found that appellant's case was not merely about whether respondent complied with clause 12 but also about the legal consequence for respondent's vaccination requirement if clause 12 was found not to have been complied with – this could lead to a range of potential orders if appellant's case were upheld in full – subject to any limitations in the Agreement, s.595(3) provides that in arbitrating a dispute, Commission can make any orders it considers appropriate – permission to appeal granted – appeal upheld – first instance decision quashed – matter remitted for determination consistent with Full Bench's reasons

Appeal by Mitchell against decision of Lee C of 27 May 2022 [[2022] FWC 1115] Re: University of Tasmania

C2022/3507

[2022] FWCFB 165

Hatcher VP
Catanzariti VP
Yilmaz C

Sydney

31 August 2022

 

3

ENTERPRISE BARGAINING – scope orderbreach of bargaining obligations.229 Fair Work Act 2009 – 2 applications for bargaining orders – by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and by the Australian Municipal, Administrative, Clerical and Services Union (ASU) (the applicant unions) – applicant unions seek orders concerning bargaining, including interim orders – respondent to each of the applications is Utilities Management P/L (Utilities Management) trading as SA Power Networks (SAPN) – Utilities Management operates in the electrical power industry in South Australia – it conducts 2 businesses via subsidiary corporate entities – SAPN is the monopoly distributor of electricity in South Australia and operates subject to regulation by the Australian Energy Regulator, the Essential Services Commission of South Australia and the Office of the Technical Regulator – the second business, Enerven, engages in electrical, telecommunications and renewable energy infrastructure development and maintenance, and operates in a non-regulated contestable market – by agreement between Enerven and SAPN, and where operationally required, from time to time employees are seconded to work across both businesses – the applications concern common issues relating to bargaining for an agreement (referred to as the replacement agreement) to replace the Utilities Management P/L Enterprise Agreement 2018 – the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) is not an applicant, but is a union covered by the Agreement and supports the applications – the applicant unions and Professionals Australia are employee bargaining representatives, but are not the sole employee bargaining representatives, for the replacement agreement – Utilities Management responded to the applications by filing a strike-out application under s.587 of the FW Act on the ground that the applications were frivolous or vexatious and had no reasonable prospects of success – there has been protracted bargaining for a replacement agreement since June 2020 – bargaining has been contentious and litigious, though not disorderly – it has been characterised by claim, counter claim, accusations of good faith bargaining breaches, unsuccessful contested ballots and protected action – Utilities Management were seeking separate agreements and separate terms and conditions of employment covering 2 business entities (SAPN and Enerven) currently covered singularly by the Agreement – a decision by a Full Bench of the Commission on 25 March 2022 [[2022] FWCFB 42] granted applications by the CEPU and Professionals Australia (supported by the ASU) for a scope order and bargaining orders (the Full Bench scope order decision) – a subsequent Statement was issued by the Commission on 29 June 2022 [[2022] FWC 1673] dealing with a bargaining dispute notified by Utilities Management concerning conduct following the Full Bench scope order decision – the applications seek the following orders: 1. An interim order preventing the ballot of employees occurring; 2. A determination that an alternate scope to that contained in the scope orders has not been agreed by bargaining representatives in accordance with [paragraph] 789 of the explanatory memorandum; 3. An order restraining Utilities Management from requesting employees to vote on an Agreement with a scope inconsistent with the scope order; and 4. [An order] preventing Utilities Management from continuing to bargain for an enterprise agreement with a scope inconsistent with the Scope Order – the applicant unions sought the following interim orders: 1. an order preventing the conduct of a ballot of employees of Utilities Management working in its SAPN business for an agreement covering those employees only. The ballot was scheduled to commence on 21 July 2022 and conclude on 25 July 2022; and 2. an order restraining Utilities Management from requesting employees to vote on an agreement with a scope inconsistent with a scope order currently in operation – the Commission declined to make interim orders [[2022] FWC 1918] – the matters in issue concern Utilities Management's compliance with the good faith bargaining obligations of the FW Act in the wake of the Full Bench scope order decision – the determination of this matter concerns the effect on bargaining of a scope order under s.238 of the FW Act and the conduct of parties related thereto – it also concerns whether an employer is bargaining in good faith if it bargains for or ballots employees on a proposal for multiple replacement agreements covering subsets of its business in circumstances where a scope order has been issued for a replacement agreement covering its business as a whole – Commission considered Endeavour Coal – the obligation to bargain in good faith requires active not passive conduct – alternate and non-preferred positions put by others need to be actively considered and responded to, and not just passed by – Commission concluded that Utilities Management's conduct in submitting to ballot a proposed agreement covering employees in the SAPN business only in terms different to the scope order, whilst not capricious, was unfair and a breach of good faith bargaining obligations in that such conduct undermined collective bargaining rights – Commission did not conclude that Utilities Management breached good faith bargaining obligations by continuing to bargain inside a single bargaining track for an enterprise agreement (or agreements) with a scope different from the scope order or by maintaining a preference for separate agreements – Commission did not consider it reasonable to make the orders sought – made recommendation that all bargaining representatives (the employer, the SBU and independent bargaining representatives) include for specific discussion at a forthcoming bargaining meeting a compromise option wherein a single replacement agreement is made in the terms of the scope order of 25 March 2022 but where terms and conditions of employment, to the extent appropriate, vary between the SAPN and the Enerven businesses taking into account the circumstances of those businesses and persons working in those businesses – this could be achieved by separate schedules or other structures inside a proposed replacement agreement – applications granted in the terms of this decision but not the relief sought.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Utilities Management P/L

B2022/661 and Anor

[2022] FWC 1981

Anderson DP

Adelaide

2 August 2022

 

4

TERMINATION OF EMPLOYMENT – national system employerss.13, 394, 795 Fair Work Act 2009 – 3 applicants made unfair dismissal applications – applicants are former members of Northern Territory Police Force and were retired from the Force by NT Police Commissioner under s.89(d) Police Administration Act 1978 (NT) – respondent raised jurisdictional objection that s.53 of Northern Territory (Self-Government) Act 1978 (Cth) denies Commission any power regarding termination of employment of members of NT Police Force and that applicants were not national system employees under Part 3-2 Fair Work Act – s.53(3) states 'Until provision to the contrary is made by an Act, the powers of the Fair Work Commission do not extend to employment in respect of which a tribunal established by an enactment before 1 July 1978 has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment' – Commission concluded that Police Arbitral Tribunal fell within meaning of s.53(3) – however, Commission concluded that Appeal Boards mentioned in Police Administration Act 1978 (NT) were not covered by s.53(3) – Commission found that it was not precluded by reason of s.53(3) from exercising any powers it has in relation to termination of applicants' employment – in relation to national system employee issue, Commission noted that due to regulation 6.08 Fair Work Regulations, a member of NT Police Force is not a 'public sector employee' within meaning of s.795 Fair Work Act, but Commission observed that whether a person is a 'public sector employee' has no bearing on whether they are a 'national system employee' under s.13 Fair Work Act – but in the absence of a statutory provision to the contrary, members of a police force are not employed under a contract of employment but are independent office-holders [Ryan v Commissioner of Police, NSW Police Force] – Commission acknowledged that police officers have been held to be employees for purpose of particular legislation, for example New South Wales Court of Appeal has found that NSW police, while not employees at common law, were employees for purpose of anti-discrimination law – Commission found that in light of emphasis throughout Police Administration Act 1978 (NT) on police being statutory office-holders, the statute does not disclose legislative intention to abrogate long-recognised principles of common law concerning status of police as statutory office-holders, not employees at common law – Commission found that applicants were not employees of respondent and were not national system employees within meaning of s.13 Fair Work Act – accordingly, applicants not entitled to protection of unfair dismissal provisions of Fair Work Act – applications dismissed

Vale and Ors v Northern Territory Police, Fire and Emergency Services

U2022/1031 and Ors

[2022] FWC 2101

Saunders DP

Newcastle

8 August 2022

 

5

ENTERPRISE AGREEMENTS – genuinely agrees.180 Fair Work Act 2009 – applicant Ausdrill applied for approval of enterprise agreement (the Agreement) covering employees throughout Australia engaged in surface work in black coal mining industry in classifications described by agreement – approval opposed by bargaining representatives CFMMEU on grounds the Agreement was not genuinely agreed, amongst others – s.180(5) of the Act requires the employer to take all reasonable steps to ensure the terms of the agreement and the effect of that terms are explained to relevant employees, taking into account the particular circumstances and needs of the employees – employer gave evidence that employees were provided with explanatory material and both face to face meetings were held to explain agreement – employment of all employees covered by Black Coal Mining Award (BC Award) but BC Award did not apply to all employees at time of vote – employees fell into one of three categories, being employees to whom the BC Award applied, employees who were entitled to benefits of BC Award and previous agreement (Brandrill EA) incorporated into contracts of employment, and employee covered by Brandrill EA – communications and explanatory material provided to employees described present employee conditions as being covered by either the BC Award or the Brandrill EA – employees were sent either an explanatory document comparing the Agreement to the BC Award or to the Brandrill EA – CFMMEU submitted framing of current employment as covered by either BC Award or Brandrill EA incorrect – CFMMEU submitted necessary for employer to explain to employees entitled to both BC Award and Brandrill EA benefits that this was the case – Ausdrill submitted all employees provided with frequently asked questions and a link to the BC Award, which if read by an employee would be understood to apply to their employment – Ausdrill submitted no question was raised by employees demonstrating a lack of understanding of relevance of BC Award – Commission considered that not all employees were informed or would be capable of understanding from the information provided that the BC Award applied to them at the time of the vote – Commission found that absent a correct understanding of the source of their current terms and conditions of entitlement, employees were not in a position to understand how the terms and conditions of employment might be affected by a vote for the Agreement – Commission not satisfied that Agreement was genuinely agreed – Ausdrill requested opportunity to consider undertakings to address concerns – Commission directs that Ausdrill must file and serve any proposed undertaking by 4pm 26 August 2022 – in absence of undertaking application to be dismissed – outstanding issues in relation to adequacy of explanation of engagement of casual production employees and adequacy of explanation of change to conditions yet to be determined.

Ausdrill P/L t/a Ausdrill Ltd

AG2022/1886

[2022] FWC 2205

Saunders DP

Newcastle

19 August 2022

 

6

CASE PROCEDURES – costsindemnity costsss.400A, 403, 611 Fair Work Act 2009 – original application for unfair dismissal remedy dismissed – applicant had failed to attend hearing and failed to comply with subsequent procedural directions – respondent made an application for costs order against applicant – respondent submitted that it incurred costs due to applicant's unreasonable acts or omissions and that it should have been reasonably apparent to him that his application had no reasonable prospect of success – Commission must be satisfied that there is a casual link between unreasonable actions of a party and the costs incurred by the other party – time at which applicant acted unreasonably must be identified with precision – the filing of only a dubious COVID-19 vaccine medical contraindication certificate in response to Commission directions was considered an unreasonable act – the failure to file evidence or submissions was an unreasonable omission – applicant did not attend hearing or provide any explanation for absence – applicant failed to advise respondent that he would not be attending the hearing and failed to take steps to discontinue his application – Commission held that applicant's unreasonable acts and omissions caused respondent to incur legal costs – Commission not satisfied that, on the information known to applicant at time of lodging application, that a challenge to the reasonableness of respondent's vaccination policy had no substantial prospect of success – Commission held that there was no basis to make a costs order that applied to the whole of the proceedings – respondent sought costs to be paid on an indemnity basis by applicant – Commission has discretion to award indemnity costs [Goffett] – Commission considered that indemnity costs can be awarded in unfair dismissal proceedings in appropriate circumstances, but s. 403 of the Fair Work Act 2009 and Schedule 3.1 of the Fair Work Regulations 2009 restrict the amounts that can be awarded for some activities and legal services [Stanley] – Commission held that the costs incurred by respondent in preparing and pursuing its application for applicant's unfair dismissal application to be dismissed are recoverable – Commission made adjustments to Bill of Costs filed by respondent – applicant self-represented and may not have understood effect of conduct in litigation but he was provided with ample information and warnings about his conduct in the litigation – he chose not to engage with Commission in relation to respondent's costs application – self-representation does not relieve unsuccessful litigant from an obligation to pay costs if they are otherwise justified [Kennedy] – order requiring applicant to pay an amount in costs to respondent within 21 days to be issued.

Perdikaris v KLF Holdings P/L

U2021/9868

[2022] FWC 2192

Easton DP

Sydney

18 August 2022

 

7

TERMINATION OF EMPLOYMENT – genuine redundancys.394 of Fair Work Act 2009 – applicant was employed as language educator – in July 2021, the respondent's President, Ms Trindall, advised language educators (including applicant) that funding from the NSW Department of Education was not sufficient to enable continuation of the current level of service delivery – Ms Trindall held a virtual meeting with language educators on 23 November 2021, and advised that their employment contracts will cease at the end of December 2021 due to respondent's financial difficulties – Ms Trindall advised language educators that they will be stood down effective 22 December 2021 – in an email dated 14 December 2021, Ms Trindall stated that existing hours of work provided to language educators could not be continued and invited affected staff to reapply for the role – termination letter dated 20 December 2021 advising applicant that his employment was terminated on 22 December 2021 was sent to the applicant in an email on 21 December 2021 – applicant submitted that the dismissal was harsh, unjust and unreasonable and sought compensation as remedy – respondent submitted that applicant's dismissal was not harsh, unjust or unreasonable and that the application be dismissed – Commission found that the applicant was dismissed because the respondent did not have the financial capacity to continue applicant's employment – applicant was dismissed for reason of redundancy – the prospect that applicant and other language educators could apply to be re-employed at some point in the future did not mean that the job of the applicant continued to be required – observed respondent's contention the dismissal was not a redundancy was an unconscionable attempt to avoid payment of entitlements provided by the NES – further observed that respondent's attempt to use unpaid NES entitlements as a bargaining chip during proceedings was 'disturbing and distasteful to observe' – applicant's dismissal was not a case of genuine redundancy pursuant to s. 389 of the Fair Work Act 2009 because the respondent did not properly consult or contemplate redeployment opportunities or other measures to mitigate or avoid redundancy – observed dismissal by email without prior personal communication was 'unnecessarily callous and unreasonable' – termination was harsh, unjust, and unreasonable – application for unfair dismissal granted and compensation awarded.

Riley v NSW Aboriginal Education Consultative Group Incorporated

U2022/699

[2022] FWC 2254

Cambridge C

Sydney

25 August 2022

 

8

TERMINATION OF EMPLOYMENT – meritreinstatements.394 Fair Work Act 2009 – application for unfair dismissal remedy – Applicant and another individual co-founded Low Latency Media P/L (LLM) in January 2018 – LLM became the Australian subsidiary of Frameplay Holdings Corporation (Holdings Corporation) in July 2019 – Applicant remained LLM's sole director and employee – Applicant dismissed via a phone call on 2 July 2021 and advised to refer to termination letter sent via text – Respondent submitted that applicant was dismissed due to poor performance and misconduct – Applicant denied the allegations and submitted that dismissal was harsh, unjust or unreasonable as there was no valid reason for dismissal which also lacked procedural fairness – evidence on balance supports the conclusion that Applicant was direct, perhaps uncompromising, argumentative or abrasive however it failed to demonstrate Applicant's conduct occurred as described – Commission found that there was no valid reason for dismissal and that dismissal was harsh, unjust or unreasonable – Commission also considered other matters to be relevant including that Applicant was co-founder and invested financially into the business including by taking pay reductions and placing himself at serious financial risk when LLM lacked funds and to ensure employees were paid to which Mr Troughton and executive paid no regard – Applicant sought to be reinstated Respondent submitted that reinstating the Applicant would further cause a breakdown in working relations, trust and confidence between Applicant and Respondent's employees – Commission considered whether reinstatement is an appropriate remedy – Commission referred to the conclusion of the Full Bench in Nguyen v Vietnamese Community in Australia that '[u]ltimately, the question is whether there can be sufficient level of trust and confidence to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party' Commission found that there would be some loss of trust due Applicant's dismissal however, the co-founders have worked together in the past, had a productive business relationship and despite their differences, could continue to do so – Commission noted that the co-founders live and work in different countries and with development of appropriate policies and procedures it would be in their interest to maintain a working relationship – LLM including Holdings Corporation is more financially secure and pressures of start-up have alleviated – no evidence that reinstating the Applicant is contrary to the interests of LLM Applicant unfairly dismissed Applicant reinstated to position held prior to dismissal and awarded loss of pay for two months.

Rossi v Low Latency Media P/L t/a Frameplay

U2021/6369

[2022] FWC 2133

Yilmaz C

Melbourne

12 August 2022

 

9

CASE PROCEDURES – revoke or vary decisioncompensationss.394, 603 Fair Work Act 2009 – variation of original decision [2022] FWC 782 – applicant found to have been unfairly dismissed in original decision and compensation ordered – period of further employment assessed to be 10 weeks starting on 8 July 2021 and ending on 16 September 2021 – compensation period covered 39 working days – amount reduced as applicant commended new employment on 13 September – compensation of $7,484.17 ordered initially – after Order issued respondent raised concern with calculation of amount of projected remuneration, suggesting calculation was incorrect having regard to public health orders (PHO) which came into effect during the further employment period, potentially limiting the applicant's ability to have attended work – interim Order issued setting aside original compensation Order – PHO was came into effect on 19 July 2021 and restricted movement of persons in a designated local government area (LGA) – applicant lived in designated LGA – person who replaced applicant in role lived in the same LGA and was able to return on modified roster from 16 August 2021 following a business decision of respondent – respondent's staff resumed full time work on 11 October 2021 – upon reconsideration Commission considered three scenarios of further employment: 1) PHO prohibited the applicant from attending work from 19 July 2021 until 11 October 2021, 2) PHO did not permit the applicant to work from 19 July 2021 until 16 August 2021 but permitted work thereafter, subject to a change in working hours in line with the applicant's replacement and 3) PHO did not permit the applicant to work from 19 July 2021 until 16 August 2021 but permitted work thereafter without restriction – Commissioner reviewed PHO and variations in effect during relevant period – found applicant was an 'affected worker' and from 16 August would have been able to attend workplace subject to a negative COVID-19 test – observed it was unclear whether respondent could have lawfully stood down applicant during that period – found scenario 3 was most plausible – scenario 3 compensation amount assessed to be $5,818.20 – held original decision would be varied under s.603 – selected paragraphs in original decision deleted and replaced with varied text – original compensation Order and interim Order revoked – new compensation Order issued.

McCallum v Everstone P/L

U2021/6660

[2022] FWC 2050

Matheson C

Sydney

4 August 2022

Other Fair Work Commission decisions of note

Appeal by Baughen against decision of Cross DP of 15 June 2022 [[2022] FWC 1499] Re: Bawinanga Aboriginal Corporation

GENERAL PROTECTIONS – dismissal disputess.365, 386, 604 Fair Work Act 2009permission to appealFull Benchpayment in lieu of notice – appeal against Deputy President's decision to dismiss application – appellant employed by Bawinanga Aboriginal Corporation (BAC) under contract, as varied, expiring 1 year from commencement – contract entitled appellant to one 1 week's notice though BAC determined it would pay 2 week's in lieu of notice – Deputy President found BAC determined it would not offer another contact due to funding concerns and appellant's indication he did not wish to stay on site – Deputy President found contract ended due to effluxion of time – appellant raised multiple grounds of appeal, including Deputy President's 'effluxion of time' finding was flawed – Full Bench highlighted Khayam as preferred authority concerning s.386(1)(a) rather than Lunn – Full Bench found employment commenced on date specified in the contract, observing there is no requirement employment start date stipulated in contract be synonymous with the actual date an employee starts work – Full Bench agreed with Deputy President that appellant's contract was unambiguously for a maximum term and that express terms of contract should be given effect to – no issue with contra proferentum rule – consideration of payment in lieu of notice – Full Bench considered Deputy President fell into error as he failed to consider BAC had paid appellant in lieu of notice – Full Bench considered Siagian and effect of payment in lieu of notice – observed that Lunn suggests payment in lieu of notice can give rise to a termination of employment either at time notice is given or expiry of the period of notice – Full Bench expressed preferred approach is that in Siagian and expressed in obiter in Lunn that usually it should be inferred that the employer intended termination of employment to take effect immediately upon payment in lieu of notice, however when payment is made evidence must be considered to determine objective intent of the payment and whether this was to end the employment relationship immediately or if there is evidence of contrary intention – held Deputy President's failure to consider whether BAC terminated employment relationship immediately upon payment in lieu of notice was not an appealable error as it did not undermine the Deputy President's core conclusion the relationship ended due to expiry of the contract – other grounds of appeal not dealt with as they do not challenge the core conclusion – no appealable error demonstrated and no public interest – permission to appeal refused.

C2022/3930

[2022] FWCFB 146

Catanzariti VP
Beaumont DP
Williams C

Sydney

23 August 2022

Tytula v Coventry Group Limited t/a Cooper Fluid Systems

TERMINATION OF EMPLOYMENT – valid reasonvaccination policys.394 Fair Work Act 2009 – applicant worked as engineering manager for respondent at Regency Park site – during COVID-19 pandemic respondent conducted risk assessment of worksites – attendance at some sites required vaccination due to South Australian health orders – Regency Park site not subject to government order – after consultation with employees respondent determined it would implement a vaccination policy requiring all employees to be vaccinated by 30 November 2021 or present proof of medical contraindication – applicant objected to policy and was not vaccinated by 30 November 2021 – show cause process undertaken – applicant dismissed for non-compliance with vaccination policy – applicant commenced in Commission suggesting vaccination policy was unlawful and unreasonable –consideration whether valid reason – found vaccination policy did not breach the Work, Health and Safety Act 2012 as it did not create an unsafe workplace – found no breach of Criminal Code 1995, Nuremburg Convention 1947 or Australian Human Rights Commission Act 1986 insofar as applicant suggested he was denied a right to earn a living or otherwise denied bodily integrity – Commission observed rights are conditioned by responsibilities, including an employee's obligation to comply with their employer's lawful and reasonable directions – found policy was reasonable absent a government mandate at Regency Park site as employer could issue lawful and reasonable directions concerning workplace issues – observed reasonableness of a policy is to be objectively considered and not burdened by presumption of unreasonableness simply because government authorities have not declared the specific workplace a high risk setting – held vaccination policy was not unlawful – unreasonableness considered – applicant suggested general scientific and medical consensus on vaccination was flawed and the vaccine was unsafe, therefore rendering the policy unreasonable – Commission observed applicant's position was more than belief and characterised it as conviction – found policy was guided by specialist regulatory and government advice – found it was reasonable for respondent to not independently investigate vaccine safety given reliance on expert advice – held respondent's policy was not unreasonable – held direction to comply with policy was not unreasonable – held applicant's non-compliance with vaccination direction formed a valid reason for dismissal – Commission observed applicant had right to disagree with policy but no right to be sanction-free if non-compliant – application dismissed.

U2022/1934

[2022] FWC 2085

Anderson DP

Adelaide

10 August 2022

Organ v Boom Logistics Limited

TERMINATION OF EMPLOYMENT – identity of employerlabour hireminimum employment periods.394 Fair Work Act 2009 – application for unfair dismissal – respondent raised jurisdictional objections that it was not the applicant's employer and, if it were, the applicant did not satisfy the minimum employment period – applicant was employed as a rigger in March 2019 and worked for different periods between 2019 and his dismissal on 23 March 2022 – Commission found that applicant did not satisfy the minimum employment period irrespective of the identity of the employer – Commission found that applicant's employment was regular and systematic from March 2021 to November 2021 but from 21 November 2021 to 10 January 2022 the applicant's timesheets did not record chargeable hours – applicant conceded that during this period he worked for another employer for three weeks – Commission found that applicant did not remain an employee in period between 21 November 2021 to 10 January 2022 – applicant submitted that the respondent was his employer since 2019 – applicant's employment contract references Shutdown Staffing PL t/a readi – readi is a labour hire company and wholly owned subsidiary of the respondent – Commission observed concept of joint employment is not recognised in the Australian jurisdiction – Commission considered that mere existence of an arrangement under which a first company provides labour to second company does not point to second company being the employer of labour [FP Group v Tooheys] – identification of the parties to a contract requires an objective assessment of all of the relevant surrounding circumstances [Chambers referring to judgement in Tregidga] – the process of construction of the contract so as to identify the parties to it requires consideration of not only the text of the document but also the surrounding circumstances known to the parties and the purpose and object of the transaction – limited evidence provided by the applicant and respondent – applicant's Letter Of Offer and timecards referred to readi as the employer – Commission held that objectively it appears that applicant intended to contract with readi – applicant was fully aware that readi was a labour hire company and the respondent was its client – applicant entered into an employment contract with readi – it follows that readi was the applicant's employer – observed that situation where labour supplier is not conducting a business of its own and the arrangement lacks commercial practicality this may point to the labour hire supplier not being the true employer – given minimum employment period finding this element was not considered further – application for unfair dismissal remedy dismissed.

U2022/4202

[2022] FWC 2007

Beaumont DP

Perth

5 August 2022

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v BHP Billiton P/L t/a Nickel West Kalgoorlie

ENTERPRISE BARGAINING – majority support determinationorganisationally distincts.236 Fair Work Act 2009 – application for majority support determination (MSD) in relation to proposed enterprise agreement for group of maintenance employees working at nickel smelter operated by respondent – maintenance employees currently covered by 2012 agreement that also covers other employees at the workplace, applicant seeking narrower agreement – respondent refused to bargain and submitted that a redacted petition proffered by applicant (submitted unredacted to the Commission) purporting to show that a majority of the group supported bargaining was not credible evidence of the views of the group as applicant had not established the veracity and authenticity of signatures on the petition and there was insufficient evidence that petitioners understood purpose and effect of the petition required to satisfy s.237(2)(a) – respondent also submitted that there was insufficient evidence that group was fairly chosen per s.237(2)(c), including that the group was not organisationally distinct as managerial reporting lines did not clearly delineate the group from other maintenance employees – respondent also submitted that it is not reasonable in all the circumstances to make the MSD per s.237(2)(d) – citing Lovisa and Austral, Commission held there was sufficient evidentiary foundation to find petition was authentic, the group had an apparent understanding of the purpose of the petition and each petitioner in signing indicated their support for bargaining – in respect of whether group was fairly chosen Commission found that, despite the work or duties of maintenance and production employees not being similar, given considerable interdependencies between these two groups and their collective role in the larger production chain, on balance the group of maintenance employees is neither organisationally nor operationally distinct, further the group is not geographically distinct – citing Cimeco and Alcoa, Commission found that given no other matters were at play the group was not fairly chosen – Commission concluded making MSD not reasonable in all circumstances, order issued dismissing application.

B2022/82

[2022] FWC 1343

Beaumont DP

Perth

29 July 2022

Marson v Lutan P/L t/a Lutan Support Services

GENERAL PROTECTIONS – dismissal disputerepudiationss.365, 386 Fair Work Act 2009 – applicant employed as casual disability support worker – applicant declined shift requiring her to provide personal care services because she suggested she was not trained or experienced to provide such services – respondent and applicant engaged in email exchange – on 25 March 2022 respondent sent text message to applicant indicating that providing personal care services were part of role requirements and if applicant refused the shift the respondent could not keep her in employment – applicant did not reply – respondent cancelled applicant's rostered shifts – respondent submitted to Commission that applicant was not dismissed but in failing to reply to correspondence applicant had withdrawn her availability – respondent submitted that applicant did not require any formal qualifications or training to be employed as a disability support worker who provided personal care services – these services were an essential part of her role as set out in position description, award classification level and National Disability Insurance Scheme (NDIS) training – Commission considered whether conduct of applicant amounted to renunciation of employment contract terminating the employment relationship – test is 'whether the conduct of one party conveys to a reasonable person in the situation of the other party a renunciation of either the contract as a whole or of a fundamental obligation under it' [Koompahtoo] – Commission held that personal care work did form part of applicant's duties and responsibilities – it was lawful and reasonable for respondent to order applicant to work assigned shift – applicant's conduct showed unwillingness to render substantial performance of employment contract – applicant's conduct terminated the employment relationship – respondent did not engage in any action that could be held to be the principal factor resulting in termination of employment – applicant's employment not terminated by respondent – jurisdictional objection upheld – general protections application involving dismissal dismissed.

C2022/2372

[2022] FWC 2150

Saunders DP

Newcastle

12 August 2022

Brett v Transit Australia P/L

TERMINATION OF EMPLOYMENT – meritreasonableness of employer policys.394 Fair Work Act 2009 – applicant employed as bus driver – incident occurred at bus stop involving three boys between eight to ten years of age – children wished to travel on bus but had no money for fares – children and bus driver conversed and children exited bus – one child then launched metal rod striking driver's side window – applicant had safety concerns and contacted respondent's base office for further instructions – respondent's response team attended – applicant later terminated for serious misconduct on basis of breach of respondent's 'no child left behind policy' – applicant submitted that the termination was harsh, unjust and unreasonable – applicant contended that he did stop for children and followed respondent's procedures set out in handbook – applicant submitted lack of procedural fairness given one thirty minute disciplinary meeting and no previous conduct or performance issues – respondent submitted that its valid reason for the dismissal was the applicant's conduct breaching the policy – respondent contended that applicant's conduct escalated situation – applicant had received training and understood policy – Commission considered reasonableness of policy – what is reasonable will depend on all the all the circumstances including the nature of the employment, established usages, common practices and general provisions of the instrument governing the relationship – 'a policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy' [Woolworths] – Commission satisfied that policy reasonable given respondent's service proposition of providing reliable and respectful service to public, including children – Commission held that applicant was notified of reason and had an opportunity to respond – applicant attended meeting with his representative, shown video footage and given chance to respond – the respondent followed its own procedures – applicant had been trained to deescalate such situations and chose to disobey policy in circumstances where respondent's policy reflects role in providing public carriage in a safe and responsible manner – Commission held applicant not unfairly dismissed – application dismissed.

U2022/3068

[2022] FWC 2278

Lake DP

Brisbane

26 August 2022

Birkinshaw v Marlau Nominees P/L

TERMINATION OF EMPLOYMENT – misconductout of hours conducts.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as casual warehouse assistant since November 2020 – performed deliveries of wholesale liquor products to licenced venues – respondent asserts to be Australia's largest family-owned on-premise liquor wholesale businesses – in January 2021 applicant suffered a workplace injury and was on a graduated return to work plan – on 12 November 2021, applicant attended a number of venues in NSW and consumed alcohol – in early hours of 13 November 2021 applicant attended Websters Bar, a customer of the respondent, and made threats when denied request for free drinks – threats included delaying or not delivering liquor orders – Websters Bar staff contacted respondent to lodge complaint about applicant's behaviour – respondent immediately suspended applicant from work and conducted investigation – respondent found that applicant's conduct out of work hours constituted serious misconduct as it could have potentially damaged respondent's reputation and relationship with customers – applicant's employment terminated at meeting with respondent on 23 November 2021 – applicant claimed threats to delay deliveries were in jest and written warning should have been issued not dismissal – respondent claimed threats were perceived as a direct threats by Webster Bar, behaviour was in connection with employment though out of work hours and could seriously damage its relationship with customer – after consideration of evidence Commission comfortable to conclude that applicant did make serious threats to delay future liquor deliveries in retaliation for being refused free drinks – Commission observed out of hours conduct ordinarily beyond scrutiny of employer unless conduct damages, or is likely to damage, the reputation and/or commercial interests of the employer – Commission satisfied that applicant's conduct at Websters Bar constituted misconduct and was a valid reason for dismissal – Commission noted that applicant was given opportunity to respond to allegation after meeting on 16 November, but was not afforded opportunity to show cause and plead case as to why employment should not be terminated – failure to provide applicant with opportunity to show cause was a clear procedural defect which must be balanced against all other factors – applicant claimed respondent terminated employment due to work cover claim – respondent provided evidence that staff shortages meant that it was inconvenient to lose applicant as employee – Commission found no nefarious reason why respondent dismissed applicant – Commission found applicant dismissed for valid reason which related to established misconduct out of hours – despite procedural deficiencies when balanced against the nature of the valid reason for dismissal the applicant's dismissal was not harsh, or unjust or unreasonable – application dismissed.

U2021/11322

[2022] FWC 2019

Cambridge C

Sydney

3 August 2022

Ryzak v Starlluf Cranes P/L

TERMINATION OF EMPLOYMENT – genuine redundancycompensations.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by respondent on casual basis since 16 December 2013 and on permanent basis since 13 January 2014 – in or around May 2021 applicant made a claim for workers' compensation in relation to an ankle injury – applicant commenced restricted duties as per certificate of capacity – in September 2021 respondent forced applicant to take annual leave because there was not enough work for applicant – applicant wanted return to full unrestricted pre-injury duties as per employment contract – applicant and respondent had a pay dispute in relation to this period – in around October 2021 respondent sought to issue applicant with a new employment contract and applicant refused – on 18 October 2021 respondent verbally advised applicant his employment was terminated because his position was no longer available – respondent provided written notice of redundancy on 1 November 2021 – applicant continued to raise issues about pay dispute – on 15 November 2021 respondent retracted redundancy notice – on 2 December 2021 applicant rejected redeployment offer as not suitable – on 3 December respondent informed applicant that it considered his refusal to continue their employment relationship as his resignation – applicant submitted he was unfairly dismissed by respondent and sought financial compensation – respondent submitted applicant was not unfairly dismissed as it was his decision to leave – Commission considered Birrell, Sprigg, and Bowden – noting applicant did not consent to retraction of termination notice, Commission found applicant's last day of employment was intended to be 4 December 2021 and applicant was dismissed – Commission found the reason for dismissal was redundancy due to respondent no longer needing applicant's role to be performed by anyone because of changes in the operational requirements – Commission found respondent did not comply with the consultation provision in the Award covering applicant and consequently the dismissal was not a case of genuine redundancy – Commission found respondent had a valid reason to dismiss applicant having regard to its operational requirements and the impacts of the COVID-19 pandemic, however the dismissal of applicant was unjust as the manner in which the termination was effected was unreasonable and the failure to consult with applicant as required by the consultation provision in the Award was unjust – Commission found reinstatement not appropriate and considered whether compensation should be ordered – Commission found applicant would likely have remained in employment for a further period of one week and he would have been entitled to payment of one week's wages in addition to 11 weeks' redundancy pay – Commission decided to reduce the amount of compensation to be ordered by one week because there was no reason why applicant couldn't have negotiated to stay on a bit longer in the workshop-based role that was offered to him as a measure to mitigate his loss – Commission ordered respondent to pay applicant $19,646.00, less taxation, calculated at 11 weeks' pay based on applicant's entitlement under the NES and a 38 hour week at applicant's base rate of pay of $47.00 per hour.

U2021/12075

[2022] FWC 2105

Matheson C

Sydney

9 August 2022

EF International Language Schools (Sydney) (Teachers) Agreement 2018

ENTERPRISE AGREEMENTS – termination of agreements.222 Fair Work Act 2009 – application for termination of an enterprise agreement – on 2 May 2022 EF International Language Schools P/L t/a EF International Language Centres, Sydney (the applicant) made an application pursuant to s.222 of the Act to the Commission to terminate the EF International Language Schools (Sydney) (Teachers) Agreement 2018 (Agreement) – agreement nominally expired on 30 September 2021 – employees were shown a presentation (the presentation) prior to vote to terminate Agreement – Commission satisfied applicant had standing and that application made within requisite timeframe – Commission was not satisfied that employees had a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act – observed the presentation compared rates of pay for full-time and casual employees under the relevant Award, but did not compare those rates against the Agreement – found the presentation to employees compared entitlements of part-time sessional contract employees against casual employees – found this was an inappropriate comparison as all employees are casual – observed more appropriate comparison would have been between casual provisions in the Agreement compared to the relevant Award – Commission observed that termination of the Agreement would not allow the company to unilaterally change the mode of an employee's engagement – further found suggestion that employees could take on jobs from other colleges and take home more cash in hand was inaccurate and misleading – the Commission found that the information provided to employees via the presentation by the Applicant was misleading and inaccurate in relation to the effects of the termination of the Agreement on employee terms and conditions – the Commission was not satisfied that termination was agreed to in accordance with s.221(1), in that it is likely the misleading and/or inaccurate information was relied upon in the employees casting their vote – submissions by the IEU weighed against granting the application – application dismissed.

AG2022/1303

[2022] FWC 2162

Matheson C

Sydney

15 August 2022

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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.

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

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