5 May 2022 Volume 17/22 with selected Decision Summaries for the month ending Friday, 29 April 2022.
Quarterly Practitioner Update has been replaced
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Decisions of the Fair Work Commission
Other Fair Work Commission decisions of note
Key court reviews of Fair Work Commission decisions
Fair Work Commission Addresses
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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 Friday, 29 April 2022.
1 |
MODERN AWARDS – variation – family and domestic violence leave – ss.156, 157 Fair Work Act 2009 – Full Bench – model term for leave to deal with family and domestic violence – in its Statement of 9 March 2022 [[2022] FWCFB 26], the Full Bench noted that 5 modern awards still contain the model term for leave to deal with family and domestic violence, that was inserted into 123 modern awards in 2018 as part of the 4 yearly review [[2018] FWCFB 3936] – in March 2022, Full Bench expressed a provisional view that the model term should be deleted from those awards and replaced with a reference to the entitlement to unpaid family and domestic violence leave that was inserted into the Fair Work Act by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 – Full Bench confirmed its provisional view to vary the following awards accordingly: the Aged Care Award 2010; Children's Services Award 2010; Fast Food Industry Award 2010; Hair and Beauty Industry Award 2010; and Social, Community, Home Care and Disability Services Award 2010 – Awards varied – operative date for the variations is 19 April 2022 | |||
Family and domestic violence leave review 2021 | ||||
AM2021/55 |
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Ross J |
Melbourne |
11 April 2022 | ||
2 |
MODERN AWARDS – 4 yearly review – annualised wage arrangements – ss.134, 156 Fair Work Act 2009 – Full Bench – 2 outstanding issues concerning annualised wage arrangements conducted as part of the 4 yearly review of modern awards – first issue is what the 'outer limit' numbers of penalty rate hours and overtime hours prescribed in the annualised wage arrangements provisions to be placed in the Hospitality Industry (General) Award 2020, Restaurant Industry Award 2020 and Marine Towage Award 2020 should be – Full Bench decided that the outer limit for penalty rate hours could be increased to 18 hours average per week – the outer limit for overtime could be increased to an average of 12 hours – Full Bench noted that if an employee on an annualised wage arrangement is required to work at or near those outer limits over the course of a year, the minimum payment uplift of 25% will be nowhere near enough to properly compensate the employee – the reconciliation mechanism will require employer to make a significant payment to employee to cover the shortfall unless the payment uplift is much higher than 25% – Full Bench emphasised that its adjustment to the outer limits should not be understood as an endorsement of the proposition that the minimum 25% uplift will necessarily be sufficient to properly compensate employees with work patterns that are typical for full-time employees under the Hospitality Industry (General) Award 2020 or Restaurant Industry Award 2020 – operative date of the variations to the outer limit for penalty rate hours and overtime hours will be 1 September 2022 to enable employers and employees a reasonable opportunity to adjust any existing annualised wage arrangements so as to meet the new requirements – regarding the Marine Towage Award 2020, Full Bench decided to adopt its provisional view stated in its December 2019 decision [[2019] FWCFB 8583] regarding outer limits of penalty rate hours and overtime hours, and that Award will be varied with effect from 9 May 2022 – second issue is whether annualised wage arrangements under the Health Professionals and Support Services Award 2020 should be available in respect of employees classified as Health Professional Levels 1-3 – Full Bench accepted Health Services Union's submission that the classifications of Health Professional Levels 1-3 do not involve the exercise of managerial or supervisory functions – however, a broader scope of consideration is required to determine which classifications annualised wage arrangements should apply to – Full Bench did not consider that annualised wage arrangements should apply to the Level 1 classification because it is an entry level classification and employees at this level may not have sufficient employment experience as a health professional to give informed consent to an annualised wage arrangement, particularly if offered at the outset of employment when the employee has no familiarity with the usual patterns of working hours across the year and is likely to have little bargaining power – Full Bench considered that annualised wage arrangements should be available for employees in Level 2 and 3 classifications – employees at these levels have had a number of years' employment experience as health professionals and will be well placed to assess whether an annualised wage arrangement is appropriate having regard to their pattern of working hours over the long term – such employees enjoy relatively high minimum pay rates in the modern award system and may be characterised as employees for whom a salary-type arrangement would broadly be appropriate – decided that the Health Professionals and Support Services Award 2020 should be varied to include Model Clause 3, which will be applicable to employees in the classifications of Support Services Employee Level 8 and 9 and Health Professional Level 2, 3 and 4 – the variation is required to achieve the modern awards objective in s.134(1) of the Fair Work Act – Full Bench placed particular weight on considerations in s.134(1)(d), (da), (f) – operative date for variation will be 9 May 2022 – interested parties can file submissions as to the draft determinations (but not in relation to merit issues) within 14 days of the date of this decision | |||
4 yearly review of modern awards – Annualised Wage Arrangements | ||||
AM2016/13 |
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Hatcher VP |
Sydney |
7 April 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – termination at initiative of employer – acceptance of resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was absent from work from May 2021 until end of employment in September 2021 – applicant certified medically unfit during this period – in August 2021 respondent directed applicant to attend medical examination to assess capacity to perform inherent requirements of her role – no examination took place as applicant did not sign consent form – show cause letter sent to applicant on basis she could not safely perform inherent requirements of her role – applicant tendered resignation on 4 weeks' notice – respondent purported to treat resignation as open to acceptance, accepted the resignation and unilaterally brought it forward to have immediate effect – applicant submitted that she was forced to resign within meaning of s.386(1)(b) of the Fair Work Act – Commission considered whether respondent's conduct was of such a nature that resignation was the probable result or that applicant had no effective or real choice but to resign – focus is on conduct of respondent rather than subjective view of applicant – held show cause process was a reasonable response to applicant's prolonged absence on unspecified medical grounds – found applicant did have other real alternative options to resignation, such as participation in show cause process – Commission held the resignation was not forced and was not a dismissal under s.386(1)(b) – respondent correctly accepted that it was not in a position to accept applicant's resignation as no acceptance is required, and was not in a position to unilaterally decide to bring forward the date of effect of resignation – respondent accepted, and Commission found, that the employment relationship ended because applicant's employment was terminated on respondent's initiative – Commission found no valid reason for dismissal related to applicant's conduct or capacity – considered the position applicant would have been in but for respondent bringing forward the resignation – held it was significant that respondent had put applicant in position she would have been in had she continued to be employed for the entirety of her notice period per her notice of resignation – Commission held that the steps taken by respondent outweigh the absence of a valid reason for dismissal – dismissal was not unfair – even if dismissal had been unfair, no remedy was appropriate – reinstatement clearly not practicable – in assessing compensation, need to consider the remuneration that applicant would have received or would likely have received if she had not been dismissed – period of future employment was clearly known given the resignation had been tendered, and applicant has not suffered any financial loss due to the dismissal – would be inappropriate to make compensation order – application dismissed. | |||
Sawan v Victoria Police | ||||
U2021/8981 |
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Gostencnik DP |
Melbourne |
26 April 2022 | ||
4 |
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – ss.391, 394 Fair Work Act 2009 – unfair dismissal application – respondent raised jurisdictional objection that applicant abandoned his employment by not meeting a fundamental obligation of his contract to be able to start work as scheduled – applicant employed as production officer on a floating production, storage and offtake facility off north-west coast of Western Australia (WA) – applicant was a fly in fly out worker residing in Queensland – there were restrictions on entry to WA from 24 March 2020 onwards due to COVID-19 – on 7 April 2020 respondent implemented new roster arrangement of 2 weeks for quarantine as necessary, 4 weeks on, 6 weeks off duty – on 18 May 2021 applicant began 6 weeks off duty and returned to his home in Queensland – on 26 June 2021 the applicant sustained an injury – on 28 June applicant was certified unfit for work from 28 June to 4 July 2021 – on 27 June 2021 the WA Government reclassified Queensland and the applicant needed leave Queensland before midnight 28 June to complete quarantine and be ready for duty on 13 July – on 28 June applicant provided a copy of his medical certificate to Offshore Installation Manager – on 28 and 29 June applicant sent emails to relevant staff of respondent about travel arrangements with no response – between 2 and 7 July 2021 applicant sent emails to relevant staff of respondent regarding arrangements he had made to get to Perth – on 8 July respondent notified applicant that failure to make the 13 July crew change would enable respondent to terminate his contract – on 13 July 2021 respondent sent applicant letter terminating employment immediately – Commission noted that employees who are certified unfit for work should be able to utilise accrued personal leave without risk of dismissal – Commission noted that applicant took multiple proactive steps to ensure he could attend his rostered shift and inform his employer that he wished to continue in employment – not satisfied that applicant abandoned his employment – Commission found that applicant's employment was terminated at the initiative of the respondent – found that there was no valid reason for dismissal and applicant was denied procedural fairness – found that dismissal was unfair – Commission ordered reinstatement to the position in which the applicant was employed immediately before dismissal – ordered that applicant maintain continuity of employment and period of continuous service – ordered respondent to restore applicant's lost pay. | |||
Lattimer v Jadestone Energy (Australia) P/L | ||||
U2021/6711 |
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Binet DP |
Perth |
27 April 2022 | ||
5 |
TERMINATION OF EMPLOYMENT – termination at initiative of employer – frustration of contract – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as General Service Operator with respondent at offshore floating production, storage and offtake oil facility located off the coast of Western Australia (WA) – applicant employed on fly in fly out basis with applicant's usual place of residence being Queensland – when travel restrictions were imposed on entry into WA in March 2020 due to COVID-19, respondent directed employees including applicant to relocate to WA – as applicant was an exempt traveller, relocation was not required but respondent modified rostering requirements to reduce travel – in November 2020, WA Government introduced classification-based quarantine requirements for interstate travellers – respondent further modified roster to incorporate 2 weeks' quarantine – entry and quarantine requirements for travellers to WA fluctuated during 2021 with the applicant being required to relocate interstate or enter WA at short notice – in June 2021, applicant was out of mobile phone reception when entry classification for Queensland changed and applicant was required to relocate interstate by a certain time in order to enter WA – applicant was unaware of relocation requirement and was unable to enter WA to commence quarantine period – applicant subsequently secured entry pass to enter WA to commence quarantine, but was unable to commence rostered shift until after quarantine period – respondent sent letter to applicant on 8 July 2021 advising of intention to terminate his employment on grounds of frustration of contract as it believed applicant had breached contractual obligations by not being able to relocate to WA when required – applicant lodged dispute with respondent under enterprise agreement – respondent sent applicant a letter on 13 July 2021 terminating applicant's employment immediately due to frustration of employment contract – Commission considered requirements under s.385 of Fair Work Act as well as contractual variations made by respondent, reasonableness of any requests to relocate and the consequences of border restrictions preventing applicant from commencing roster – respondent claimed that applicant had renunciated his employment by failing to relocate to WA in June 2021 – Commission found applicant's conduct did not suggest intention to renunciate employment contract, to the contrary applicant had taken proactive steps to be able to attend rostered shifts – Commission not satisfied that there was a valid reason for dismissal – applicant was employed on fly in fly out basis acknowledged in employment contract and respondent had not made it clear that failure to relocate would result in dismissal – found applicant was not notified or given opportunity to respond to reasons for dismissal before decision to terminate employment – Commission found applicant's dismissal procedurally unfair – dismissal was harsh, unjust and unreasonable – Commission ordered applicant be reinstated – issued order to restore lost pay | |||
Roff v Jadestone Energy (Australia) P/L | ||||
U2021/6712 |
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Binet DP |
Perth |
29 April 2022 | ||
6 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – ss.390, 392, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked in Customer Service Support since May 2019 – beginning March 2020, respondent directed applicant and some of his colleagues to work from home due to COVID-19 lockdown – Victorian Government issued public health direction requiring certain workers to provide evidence about their COVID-19 vaccination status by 15 October 2021 in order to work outside their homes – respondent's executive leadership team also approved a COVID-19 vaccination policy on 11 October and uploaded it to their intranet on 14 October – on 15 October respondent told applicant he would not be able to work until he provided proof of his vaccination status – on 21 October parties attended a meeting where it became clear the applicant did not intend to be vaccinated – show cause letter was sent on 28 October – on 4 November, applicant sent a response refusing to provide his vaccination status – on 10 November applicant was terminated with 4 weeks' pay in lieu of notice – Commission noted that ample decisions of the Commission support the proposition that the failure of an employee to meet the requirements of a public health order support a valid reason for dismissal and if that was the whole circumstances in this case, the Commission would have found the respondent had a valid reason for dismissing the applicant – however, Commission noted that the public health direction concerned work outside the home – respondent did not require or schedule anyone in applicant's team to attend work in person until 24 February 2022 – thus between applicant's termination on 10 November 2021 and 24 February 2022, applicant remained ready, willing and able to perform the inherent requirements of the role – dismissal was premature – Commission held that as at 10 November 2021, there was no valid reason for dismissal as there was no reason why respondent could not have allowed applicant to continue in his employment until such time he was required to attend the office – Commission held reinstatement inappropriate because respondent has since 24 February 2022 required Customer Service Support employees to attend the office and applicant cannot do so because he is unvaccinated – applying Bowden, Commission found that given applicant's earnings at his subsequent employment obtained following his dismissal, he incurred no economic loss – no compensation payable – Commission satisfied that dismissal was unfair but no remedy is appropriate. | |||
Marriott v Baptcare Limited | ||||
U2021/10991 |
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Johns C |
Melbourne |
28 April 2022 | ||
Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Victoria-Tasmania Divisional Branch | ||
RIGHT OF ENTRY – revocation of permit – application to vary or revoke a decision – ss.510, 603 Fair Work Act 2009 – in 2019, the Commission issued an entry permit to an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) – permit is due to expire on 23 May 2022 – in 2021, the Federal Court imposed penalties on the official for a contravention of s.500 of the Fair Work Act – in 2022, CFMMEU advised the Commission that the permit had been lost and in a statutory declaration, the official declared that his permit was lost – CFMMEU advised that the Federal Court's decision was subject to an appeal that was yet to be determined and that the official was unlikely to return to work as an Organiser in the foreseeable future so it may be appropriate for the Commission to revoke his entry permit under s.603 – Commission held it was appropriate to exercise discretion under s.603 to vary or revoke the Commission's 2019 decision to issue an entry permit – entry permit that was issued by the decision of the Commission will be revoked – revocation order separately issued | ||
RE2019/432 |
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Gostencnik DP |
Melbourne |
29 April 2022 |
Spelman v Australian Laboratory Services P/L t/a ALS | ||
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application for unfair dismissal – respondent provides laboratory and analytical testing services to pharmaceutical and food manufacturers – applicant was employed in the role of Sampler/Courier – her primary responsibilities involved driving a company vehicle to various client sites in and around Melbourne for the purpose of collecting samples and delivering them to the respondent's laboratory – in October 2021, Victorian Government issued public health directions – respondent formed the view that the public health directions were applicable to the applicant's employment because she was a worker that fell within the definitions of both 'manufacturing worker' and 'science and technology worker' – applicant took annual leave from late October 2021 to early December 2021 – in late November, while on leave, applicant requested a meeting and respondent advised in writing that her employment would be terminated on 6 December 2021 if she did not provide proof of vaccination – respondent terminated the applicant's employment on 6 December because she was incapable of meeting the inherent requirements of the role for which she had been employed, having neither provided proof of full vaccination nor a valid medical exemption within the time provided – Commission satisfied the public health directions covered the employment of the applicant – the public health directions in force when the dismissal took effect required the respondent to take all reasonable steps to ensure that on or after 26 November 2021, its 'unvaccinated' workers did not work outside their ordinary place of residence – further, the public health directions imposed an obligation on the respondent to collect, record and hold vaccination information about workers who were or might be scheduled to work outside the worker's ordinary place of residence – if the respondent did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was 'unvaccinated' – Commission held that while the applicant was within her rights to decline to become vaccinated and refuse to provide the respondent with the information it requested from her, her choices had the inevitable consequence of rendering herself unable to perform her job – Commission satisfied the respondent had a valid reason for dismissing the applicant related to her capacity – found dismissal was not harsh, unjust or unreasonable – dismissal not unfair – application dismissed. | ||
U2021/11865 |
||
Clancy DP |
Melbourne |
26 April 2022 |
Sajn v Linfox Armaguard P/L | ||
TERMINATION OF EMPLOYMENT – minimum employment period – mandatory vaccination – ss.22, 383, 394 Fair Work Act 2009 – application to deal with unfair dismissal – respondent raised jurisdictional objection that applicant had not served 6 months' minimum employment period – applicant's employment was covered by public health direction issued by Victorian Government concerning vaccination – the deadlines in the public health direction for vaccination were 22 October 2021 for a first dose and 26 November for a second dose – on 15 October, respondent emailed all employees to ask for proof of their vaccination status and advise that failure to provide details would lead to conversations regarding continued employment – applicant and respondent met on 15 October and respondent formed view that applicant was unable to comply with public health direction – applicant was escorted offsite and took paid annual leave from 16-31 October – respondent sent correspondence on 22 October advising that employees who had not provided vaccination status would be treated as unvaccinated and prohibited from attending any worksite – applicant confirmed to respondent he would not be receiving vaccination – applicant placed on leave without pay from 1-30 November as his annual leave entitlements had run out – on 8 November show cause letter sent to applicant – applicant reiterated that he did not intend to receive vaccination – respondent terminated applicant's employment on 1 December 2021 – applicant had commenced employment on 10 May 2021 – s.22 of the Fair Work Act provides any period of unpaid leave or unpaid authorised absence (subject to defined exclusions) does not count as continuous service – Commission satisfied that the period of unpaid leave of 1-30 November was excluded in calculating minimum employment period – period of continuous service found to be 5 months and 3 weeks – jurisdictional objection upheld – applicant not protected from unfair dismissal – notwithstanding minimum employment period finding, Commission found respondent had valid reason for applicant's dismissal related to capacity as applicant was unable to fulfil inherent requirements of his role due to his failure to comply with the public health direction – also found that dismissal was not unfair – application dismissed. | ||
U2021/11748 |
||
Masson DP |
Melbourne |
26 April 2022 |
The summaries contained in this Bulletin are not a substitute for the courts’ published reasons for decision.
Australian Rail Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd
Matters reviewed:[2020] FWCA 4823 and [2021] FWCFB 591
The Australian Rail Tram and Bus Industry Union (RTBU) brought proceedings (NSD172/2021) in the Federal Court of Australia seeking relief under section 39B of the Judiciary Act 1903 on the basis that the Busways, Transport Workers’ Union of Australia and Drivers Enterprise Agreement 2020 (Agreement) was not an enterprise agreement made in accordance with the Fair Work Act 2009 (the Act) and, as such, was beyond the Fair Work Commission’s power to approve.
The State Transit Authority of New South Wales (STA) provided bus services within defined parts of Sydney. The New South Wales Government invited private operators to tender for contracts covering the provision of bus services in various regions, including those where STA provided bus services.
The Agreement had been lodged with the Fair Work Commission for approval on the basis that it pertained to a genuine new enterprise that various entities (Busways) was establishing or proposed to establish; namely, bus services for which Busways had submitted tenders to the New South Wales Government.
The Fair Work Commission approved the Agreement at first instance. A Full Bench of the Fair Work Commission dismissed RTBU’s appeal.
In its court application, RTBU claimed that the Agreement did not relate to a genuine new enterprise. RTBU argued that the Agreement related to an existing enterprise, namely the STA enterprise that provides bus services.
The primary question before the Full Court of the Federal Court was whether the Agreement related to a ‘genuine new enterprise’ within the meaning of section 172(2)(b) of the Act.
The Full Court considered the character of STA’s existing, pre-tender bus services and Busways’ proposed enterprise, in respect of which Busways made the Agreement. The Full Court held that the enterprise in relation to which the Agreement was made was not a genuine new enterprise that Busways was establishing or proposing to establish and that the Fair Work Commission did not have jurisdiction to approve the Agreement.
On 7 April 2022, the Full Court issued of writs of certiorari quashing the Fair Work Commission’s first instance decision which approved the Agreement, and the decision of a Full Bench of the Fair Work Commission which dismissed RTBU’s appeal.
The Full Court also issued writs of prohibition that required the Fair Work Commission to take no further steps to determine the applications that were the subject of the quashed decisions.
Read the Full Federal Court decision [2022] FCAFC 55 https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0055
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