7 July 2022 Volume 19/22 with selected Decision Summaries for the month ending Friday, 30 June 2022.
Increase to the application fee for 2022-23
Annual Wage Review 2021–22 decision issued
Decisions of the Fair Work Commission
Other Fair Work Commission decisions of note
Fair Work Commission Addresses
From 1 July 2022 the application fee has increased to $77.80.
The fee applies to dismissal, general protections, bullying and sexual harassment at work applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009.
Also effective from 1 July 2022, the high income threshold in unfair dismissal cases has increased to $162,000 and the compensation limit is now $81,000 for dismissals occurring on or after 1 July 2022.
The Fair Work Commission has issued the Annual Wage Review 2021–22 decision.
Read the:
To watch a replay of the hearing go to Annual Wage Review 2021–22.
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 Thursday, 30 June 2022.
1 |
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – application for permission to appeal – at first instance, Commission dismissed application under s.739 of Fair Work Act for Commission to deal with a dispute under Falcon Mining Enterprise Agreement 2017 (2017 Agreement) as 2017 Agreement had ceased to operate when a new enterprise agreement (2021 Agreement) took effect –original dispute application was lodged in 2020 – 2021 Agreement came into effect on 14 December 2021 – Commission then followed decision in Simplot and dismissed application, finding that Commission had no jurisdiction to hear matter as 2021 Agreement had replaced 2017 Agreement – applicant submitted that reasoning in Simplot was wrong as it was at odds with dispute resolution powers conferred on Commission – respondent submitted that there was no compelling or cogent reason why Commission should not follow decision in Simplot as no exceptional circumstances or distinguishing facts warrant a different outcome – Full Bench concluded it was in public interest to grant permission to appeal – tension between Commission decisions and Simplot significantly limits Commission's capacity to arbitrate disputes pursuant to s.739 – Simplot outcome raises difficult questions for Commission and appears at odds with objectives of Fair Work Act and fundamental features of enterprise agreements – Full Bench found that an enterprise agreement itself is not law and cannot delimit powers of Commission but rather it is s.739(3) which limits Commission's powers – Full Bench found that there is nothing in Fair Work Act which implies that subsequent cessation of operation of an enterprise agreement retroactively annuls the operation of s.739(4) – Full Bench considered proposition that arbitral decision is unenforceable following cessation of an enterprise agreement – found this not to be correct as per s.675 of Fair Work Act which makes Commission's arbitral decisions and orders enforceable, which is also supported by explanatory memorandum for Fair Work Act – Full Bench upheld appeal – remarked that it is unfortunate that there are conflicting Commission decisions and noted need for appropriate legislative amendments – first instance decision quashed and remitted to original Member for hearing and determination. | |||
Appeal by Construction, Forestry, Maritime, Mining and Energy Union and Ors against decision of Saunders DP of 17 December 2021 [[2021] FWC 6623] Re: Falcon Mining P/L | ||||
C2022/229 |
||||
Hatcher VP |
Sydney |
8 June 2022 | ||
2 |
ENTERPRISE AGREEMENTS – greenfields agreement – genuine new enterprise – ss.172, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance, Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to Commission for approval of BESIX Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021 – 2025 – Commission approved Agreement at first instance – appellant contended that Commission at first instance erred in finding Agreement related to a genuine new enterprise under s.172(2)(b)(i) of the Fair Work Act – Full Bench granted permission to appeal – at first instance, Commission identified genuine new enterprise as the business or activity of undertaking marine and civil construction work and the businesses' growth in that field and found s.172(2)(b) requirements met – appellant contended that Agreement applied to all civil construction works and was not limited to 'complex civil and marine projects' and did not relate to a genuine new enterprise – Full Bench concluded that in determining the requisite connection or relationship between Agreement and genuine new enterprise, the question is whether there is a direct, relevant, sufficient or material connection or relationship, rather than a merely causal, indirect or incidental connection or relationship – respondents submitted new enterprise was civil construction in a marine environment – Full Bench found Agreement not confined to employees engaged in marine and civil construction work but rather extended to employees engaged in all civil construction work covered by classifications in the Agreement – Agreement applied to part of existing construction business – found Agreement did not relate to the marine and civil construction enterprise that employer was establishing because it did not have sufficient or material connection or relationship with that new enterprise – Full Bench expressed the view that it was 'plainly contrary to the scheme in the Act for an agreement to be made as a greenfields agreement which will apply to employees in the…proposed new enterprise and which extends to an existing part of the employer's enterprise, or to other activities which are not part of the new enterprise' – Full Bench found that at first instance, Commission erred in finding requirements of s.172(2)(b) met – appeal upheld – first instance decision quashed – on rehearing, Full Bench noted Agreement does not relate to the genuine new enterprise that the employer is establishing, thus s.172(2)(b)(i) was not met and CFMMEU's application for approval of Agreement must be dismissed | |||
Appeal by The Australian Workers' Union against decision of Colman DP of 1 February 2022 [[2022] FWCA 267] Re: Construction, Forestry, Maritime, Mining and Energy Union and Anor | ||||
C2022/1233 |
||||
Gostencnik DP |
Melbourne |
15 June 2022 | ||
3 |
MODERN AWARDS – ambiguity or uncertainty – superannuation – s.160 Fair Work Act 2009 – variation of modern awards on Commission's own motion – due to changes to Superannuation Guarantee (Administration) Act 1992 (Superannuation Act) which would remove monthly minimum threshold (of $450) for salary or wages to count towards the superannuation guarantee – amendment will take effect from 1 July 2022 – Hospitality Industry (General) Award 2020 (Hospitality Award) and Restaurant Industry Award 2020 (Restaurant Award) both contained a monthly threshold of $350 for salary or wages to count towards the superannuation guarantee – no other awards contain a similar provision – if Hospitality Award and Restaurant Award were not varied prior to 1 July 2022 Commission considered an uncertainty would arise regarding when payments under those awards would attract superannuation contributions – Commission expressed provisional view in May 2022 that the Hospitality Award and Restaurant Award should be varied to remove the clauses establishing the $350 threshold [[2022] FWC 992] – no submissions opposing provisional view of Commission – provisional view confirmed – Hospitality Award and Restaurant Awards varied with operative date of 1 July 2022. | |||
Hospitality Industry (General) Award 2020 and Restaurant Industry Award 2020 | ||||
AM2022/13 |
||||
Ross J |
Melbourne |
1 June 2022 | ||
4 |
RIGHT OF ENTRY – suspension of permit – s.510 Fair Work Act 2009 – revocation or suspension of entry permit – in February 2022, a court declared that the permit holder contravened s.500 of the Fair Work Act and ordered he pay a pecuniary penalty – consequently, Commission's jurisdiction under s.510(1)(d) is engaged – Commission must revoke or suspend the entry permit unless action under s.510(1) has previously been taken and the circumstances which now enliven the jurisdiction were taken into account – Commission not required to take action under s.510(1) if satisfied that suspension or revocation would be harsh or unreasonable in the circumstances – exercise of Commission's powers and functions under ss.510(1) and (2) is to be informed 'not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers' [Hobson] – it is well-established that the power in s.510(1) considered in the context of s.510(2) 'is to be guided by protective and corrective considerations, not penal consideration' [Hynes]; [Kalem]; [Davies] – the need for specific or general deterrence are matters for the court in considering the penalty that should be imposed in relation to a given contravention – in deciding whether a suspension or revocation of an entry permit would be harsh or unreasonable and related issues, it will be relevant to consider the extent to which Commission can have confidence that permit holder would exercise his or her rights as a permit holder in a manner which achieves the necessary balance between the rights mentioned in s.480 [Long] – in this respect, 'the question of the deterrent effect of any penalty imposed on the permit holder by a court…may be relevant' – Commission noted that permit holder's contravening conduct was serious, as is reflected in the findings of the court and the pecuniary penalty imposed – Commission found that the conduct of the court does not suggest that suspension of the entry permit would be harsh or unreasonable – no evidence about any adverse impact that suspension or revocation would have on the permit holder or on the union or its members – no evidence of remorse or regret on part of permit holder for engaging in the conduct, nor any evidence of action taken by union to discipline or counsel the permit holder – no character evidence offered – Commission decided to suspend entry permit under s.510(1) for 3 months from date of decision and to ban the issue of any further entry permit for 3 months starting on date of decision under s.510(5) – permit holder required to return suspended permit to Commission within 7 days of date of decision, under s.517(1) – at end of suspension period, permit will be returned on application by permit holder or union | |||
In the matter of the Entry Permit of Blakeley | ||||
RE2022/61 |
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Gostencnik DP |
Melbourne |
8 June 2022 | ||
5 |
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – vaccination policy – s.739 Fair Work Act 2009 – application for Commission to deal with a dispute under ASC Enterprise Agreement 2021 – Agreement covers employees doing manufacturing and maintenance work on submarines – employer introduced a COVID-19 policy that requires employees and contractors to be double-vaccinated before entering the worksite – parties agreed to 2 issues being determined by the Commission: first, whether the employer met the consultation obligations prescribed by the Agreement, and second, whether an instruction from the employer that employees covered by the Agreement comply with the policy would be lawful and reasonable – in November 2021, employer commenced a consultation process with employees and their representatives – employer proposed to implement mask wearing, social distancing and rapid antigen testing on site (phase 1) and then vaccination (phase 2) – after consultation period on phase 1 closed, employer implemented a modified phase 1 – after consultation period on phase 2 closed, employer decided to implement a modified phase 2 – Commission noted that 'it has been said that the [consultation] obligation will only be met where a party has a real opportunity to influence the decision maker' [Consultation clause in modern awards]; [The Newcastle Wallsend Coal Company P/L] – Commission found that the steps taken by employer between November 2021 and March 2022 met its consultation obligations under the Agreement – employer had a predisposed view but was willing to, and did, consider views which questioned the need for the vaccination mandate – Commission found that having a predisposed view to a particular course of action rather than simply opening discussion on a series of options is not of itself a failure to consult and does not mean that consultation was not genuine and meaningful – 'well established that the obligation to consult does not equate to an obligation to agree to alternate positions or views' [QR Limited] – Commission found that employer fulfilled consultation obligations under Work Health and Safety Act 2012 (SA) – in considering lawfulness, Commission found the employer materially complied with consultation obligations under Agreement and Work Health and Safety Act 2012 and the policy was not contrary to the Privacy Act 1988 (Cth) – Mt Arthur Coal and BHP Coal P/L considered – Commission distinguished Lee v Superior Wood – in considering reasonableness, Commission did not give any particular weight to the fact that employer's worksites were not subject to government directions mandating vaccination – while 'the existence of a government mandate requiring vaccination to enter a high-risk setting may weigh in favour of a complementary policy mandate at that setting being reasonable, the converse is not true' – reasonableness of an employer's vaccination policy is 'not to be burdened by a presumption of unreasonableness simply because government authorities have not declared that worksite to be a high-risk setting' – Commission gave significant weight to the fact that a vaccination mandate intrudes on one's right to bodily integrity – however, policy provides for medical exemption – policy deals with management of a real and present risk to health and safety – the worksite involves working in confined spaces, making social distancing difficult – Commission did not consider the fact that a large percentage of employer's workforce were vaccinated indicated the policy was unreasonable – first, Commission satisfied on the evidence that the high vaccination rates were at least in part a direct or indirect effect of the policy – second, given current variants of the virus are highly transmissible and rates of transmission are material, Commission found it was not rational to conclude that a policy mandating vaccination is unreasonable simply because high vaccination rates have left fewer persons unvaccinated and thus mitigated risk – Commission made a recommendation that employer review the policy no later than 12 months from Commission's decision – Commission also recommended that employer consult on whether the policy should be supplemented by including a requirement for a third vaccine dose | |||
ASC Enterprise Agreement 2021 | ||||
C2021/8352 and Anor |
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Anderson DP |
Adelaide |
3 June 2022 | ||
6 |
TERMINATION OF EMPLOYMENT – remedy – stand down – no dismissal – vaccination policy – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked as a service technician at respondent's premises in Reynella – respondent raised jurisdictional objection that applicant was not dismissed, just stood down until he was able to comply with the vaccine requirements, and was invited back when requirements were lifted – in mid-December 2021 respondent had a workshop staff meeting where it was stated that all staff should be vaccinated as it was being made a mandatory requirement – applicant was in attendance – on 21 December 2021 respondent sent an email to all staff requiring that they all be vaccinated and provide proof of first vaccination by 10 January 2022 and second vaccination as per the required schedule – respondent then extended the deadline from 10 January 2022 to 4 February 2022 to allow individuals to take a different vaccine – on or around 4 February respondent checked with applicant as to his decision on being vaccinated and informed him that not doing so would result in him being stood down – on 7 February respondent sent applicant an email informing him that he would be stood down, effective immediately, until such time that he is vaccinated – he was given option to use annual leave or it would be considered leave without pay – on 8 February applicant sent a response restating his opinion on the unlawful nature of the vaccination requirement and requesting a lifetime insurance policy – on 15 February respondent said that they would not provide the requested insurance policy, and applicant would be welcome back upon providing proof of vaccination – applicant did not attend his place of work from 7 February – on 20 April 2022 respondent altered their COVID-19 policy so that being vaccinated was encouraged but not required – on the same day respondent informed applicant of the change and asked if he would like to resume his role – Commission made clear that being stood down does not equate to being dismissed – Commission also made clear that it need not determine whether the stand down was lawful, only whether applicant was dismissed – based on the facts, Commission determined that applicant was not dismissed – while the Commission can make orders in settlement of stand down disputes under s.526 of the Fair Work Act (and this is not an application for such orders), it cannot declare a purported stand down to be null and void – only a Court can declare a stand down null and void [Carter v Auto Parts Group P/L] – no dismissal – jurisdictional objection upheld – application dismissed. | |||
Nielsen v Reynella Mazda P/L | ||||
U2022/2112 |
||||
Anderson DP |
Adelaide |
22 June 2022 | ||
7 |
TERMINATION OF EMPLOYMENT – misconduct – employer policies – vaccination policy – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked in respondent's catering and hospitality service at the Royal Australian Air Force base – in October 2021, respondent consulted its employees on its proposed introduction of a COVID-19 vaccination policy – after consultation process concluded, respondent implemented the policy in November 2021 – policy required all eligible employees to be fully vaccinated by a certain date, subject to an exemption on the ground of medical contraindication – applicant raised concerns and was told by letter that she was required to comply and failure to do so may result in termination of her employment – applicant sent respondent a letter explaining her reasons for declining vaccination and did not provide evidence of a medical exemption – respondent invited applicant to show cause as to why her employment should not be terminated – applicant's employment was terminated with immediate effect and payment in lieu of notice – respondent asserted that its direction was lawful and reasonable – the 'reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment…and the general provisions of any instrument governing the relationship' [Mt Arthur Coal] – Commission noted that in consulting with its employees, respondent provided its justification for implementing the policy – Commission observed that applicant was a kitchenhand in a heavily regulated industry that had high standards regarding hygiene and infection prevention – further observed that applicant's employment contract required her to comply with respondent's policies – Commission satisfied that respondent's direction that applicant be vaccinated or provide a relevant medical exemption was a lawful and reasonable direction with which applicant was required to comply – applicant's failure to comply with respondent's direction constituted a valid reason for dismissal – applicant was given, and took, the opportunity to indicate her opposition to the introduction and enforcement of the policy, including after she was issued with the show cause notice and prior to her termination – dismissal not harsh, unjust or unreasonable – application dismissed | |||
Smith v Compass Group Defence Hospitality Services P/L | ||||
U2021/12163 |
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Lake DP |
Brisbane |
9 June 2022 | ||
8 |
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 226 Fair Work Act 2009 – application by employee seeking termination of IPCA (Vic, ACT & NT) Enterprise Agreement 2011 under s.225 of the Fair Work Act – Agreement's nominal expiry date was 21 July 2015 – Agreement covers various franchisees of Subway stores – as no request from any employer or employee covered by Agreement was made, matter was determined on the papers – on receipt of a s.225 application, Commission must terminate an enterprise agreement if satisfied it is not contrary to the public interest to do so (s.226(a)) and Commission considers termination is appropriate taking into account all circumstances including views of employees, each employer and each employee organisation covered by Agreement (s.226(b)(i)) and taking into account the circumstances of those employees, employers and organisations including the likely effect that termination will have on each of them (s.226(b)(ii)) – Commission found that termination of Agreement would not lead to an absence of award coverage for employees – satisfied it is not contrary to public interest to terminate Agreement – applicant contended that terms of Agreement have fallen below minimum terms of Fast Food Industry Award 2010 – contended that employees working evenings, weekends and public holidays are worse off than under Award – Commission noted that Award confers various rights that are not contained in Agreement including: meal and laundry allowances; 25% loading for casual employees; right to request casual conversion; minimum annual leave loading; and family and domestic violence leave – Commission expressed view that terms of Award are overall more favourable to employees than those of Agreement – Commission noted it was not intended by the legislation that agreements should remain in place indefinitely after they have passed their nominal expiry date – Commission noted challenges of COVID-19 pandemic and that there would likely be higher labour costs associated with application of Award – however, 'the Award is the safety net for the fast food industry. Any contention that the Award imposes unaffordable labour costs is a submission that ought to be made in the context of national wage case or modern award review proceedings, or an application to vary the Award' – Commission considered it appropriate to terminate Agreement – Commission therefore required by s.226 to terminate Agreement – Commission exercised discretion under s.227 to set operative date of termination as 4 weeks from date of decision – Agreement terminated from 13 July 2022 | |||
IPCA (Vic, ACT & NT) Enterprise Agreement 2011 | ||||
AG2022/142 |
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Young DP |
Melbourne |
15 June 2022 | ||
9 |
TERMINATION OF EMPLOYMENT – misconduct – employer policies – vaccination policy – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked as an IT Product Manager in the respondent's head office based in Lidcombe – no evidence of consultation between respondent and employees collectively prior to implementing COVID-19 vaccination policy – in October 2021, respondent implemented the national policy – policy required all staff to be double vaccinated by 31 December 2021, subject to an exemption on religious grounds – applicant was given opportunities to express views regarding policy between its announcement and implementation – applicant did so via email – applicant applied for a religious exemption, supported by a letter from Chairman of the Evangel Church Sydney Committee – application was rejected by respondent – applicant was dismissed on 17 December 2021 with 4 weeks' pay in lieu of notice – Commission found rejection of the religious exemption application was not unfair – throughout 2021, respondent was refurbishing its head office, where applicant was required to eventually return to work – completion of refurbishments were delayed and a return to office was pushed back until 10 January 2022 – reason for dismissal of applicant was failure to be vaccinated by deadline in the policy – applicant argued a lack of consultation prior to implementation of the policy – Commission noted that by the time respondent moved on their direction regarding vaccination, applicant had been extensively consulted with, curing those deficiencies specifically for applicant [Mt Arthur Coal] – policy was found to be lawful and reasonable in light of respondent's national operations and specific needs of customers such as aged care facilities and hospitality venues – applicant was notified of the valid reason for dismissal on 17 December 2021 – applicant was given, and took, the opportunity to respond to the reason for dismissal – Commission found that it was unreasonable that respondent required applicant to be vaccinated by 17 December 2021 when refurbishments prevented employees from returning to the office before 10 January 2022 – Commission was satisfied that dismissal of applicant was unreasonable only because dismissal occurred at a time when applicant was not required to attend the office due to office refurbishments – dismissal was unfair – reinstatement was not deemed appropriate – the question whether to order a remedy remains a discretionary one [Nguyen] – payment of compensation was not appropriate as applicant would not have been better off if the employment continued until 10 January 2022 – no order for remedy as no loss suffered – application dismissed. | |||
Nekho v Rentokil Initial P/L | ||||
U2022/458 |
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Easton DP |
Sydney |
24 June 2022 | ||
10 |
TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant operated a passenger vehicle to transport passengers who use the Uber platform – in April 2021, respondent removed applicant's access to rideshare platform apparently in light of a complaint made by a passenger who had been transported by applicant – respondent raised jurisdictional objection that applicant was not a person protected from unfair dismissal on the basis that he was not an employee – High Court of Australia in Jamsek and Personnel Contracting pronounced on the approach to be adopted in determining whether, absent a specific statutory definition or rule, a person is an employee or contractor – elements of the past approach of the Commission (itself based on the extant court authority) as outlined in the Full Bench decision of French Accent are, to a large degree, no longer to be applied – Services Agreement between applicant and respondent represents a comprehensive written contract regulating arrangements between the parties – issues raised by applicant are whether Services Agreement was a sham or otherwise ineffective – Commission accepted there were issues of control in this relationship – however those elements that have been supported by the evidence are not inconsistent with the terms of the Services Agreement and do not generally impugn its veracity – no evidence of a common intention for the Services Agreement to not represent the actual terms between the parties or that it was made to mask the true arrangement – Commission found that this relationship was regulated by a wholly written, comprehensive contract which is not a sham, was not varied and was not otherwise ineffective – characterisation of the relationship is to be determined by reference to parties' rights and obligations set out in Services Agreement – Commission considered that whilst there were some contrary indicators, applicant was not conducting a business as an entrepreneur in his own right – Commission concluded that applicant was not protected from unfair dismissal – application dismissed. | |||
Nawaz v Rasier Pacific P/L t/a Uber B.V. | ||||
U2021/3449 |
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Hampton C |
Adelaide |
17 June 2022 | ||
11 |
TERMINATION OF EMPLOYMENT – remedy – reinstatement – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as teacher – Northern Territory Chief Health Officer issued a public health direction in October 2019 that required workers who were not vaccinated against COVID-19 not attend work – medical contraindication was a valid exception – applicant commenced process to be vaccinated but cancelled appointment after her sister suffered a serious cardiac side effect from vaccination – applicant confirmed intention to be vaccinated subject to referral to cardiac specialist to assess her suitability for the vaccine – this was communicated to respondent – applicant took leave for this period to not cause breach of public health direction – applicant's employment terminated on basis she could not attend workplace and was unable to perform inherent requirements of role – termination took place approximately 2 weeks before applicant was to attend a booked cardiologist appointment – applicant challenged dismissal and sought reinstatement – Commission held no valid reason and dismissal was harsh and unfair – found respondent should have accepted applicant's communication about vaccine intention and not assumed she was an anti-vaxxer – held applicant's decision to not undertake immediate vaccination was based on cogent medical reason – Commission noted concession from respondent's CEO during cross examination that it was unfair to make the decision to dismiss prior to applicant attending the consultation that had been booked with the cardiologist – reinstatement ordered as primary remedy and no factor weighing against reinstatement – continuity maintained – backpay ordered from period applicant was validly able to attend workplace (being the date from which she was fully vaccinated after having been cleared for vaccination by cardiologist). | |||
Gikas v The Commissioner for Public Employment | ||||
U2021/12287 |
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Riordan C |
Sydney |
8 June 2022 | ||
12 |
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – casual conversion dispute – ss.66B, 66C, 739 Fair Work Act 2009 – casual conversion dispute arising under the NES – the Community and Public Sector Union (CPSU) applied to the Commission to deal with a dispute under the Department of Human Services Agreement 2017-2020 – Division 4A of Part 2-2 of the Fair Work Act provides rights in certain circumstances for employees to be converted from casual to full-time or part-time employment (Casual Conversion Term) – s.66C(2)(d) provides an exception, namely employers are not required to offer ongoing employment if it would not comply with a recruitment or selection process required by or under a law of the Commonwealth – respondent is an Australian Public Service agency which must comply with recruitment process mandated by Public Service Act 1999 (Cth) (PS Act) and Australian Public Service Commissioner's Directions 2016 (APSC Directions) – parties agreed that Commission should determine whether respondent has to offer casual conversion to an employee who has been rated as suitable in a merit selection process for a vacancy that was notified in the gazette in the last 12 months and the vacancy is similar to the duties the employee performed at the time they were assessed for conversion – respondent contended that recruitment or selection process mandated by PS Act and APSC Directions requires that a vacancy exists at the time the casual employee is assessed, as a pre-condition to offering casual conversion – respondent contended that if there is no current vacancy to which the casual employee can be appointed on an ongoing basis, this satisfies the 'reasonable grounds' criteria in s.66C and no obligation to offer ongoing employment would exist – Commission concluded that if respondent's contention was correct, it would allow respondent to veto casual conversion – this contention is contrary to legislative intent of Casual Conversion Term – PS Act has effect subject to FW Act – PS Act and APSC Directions do not override FW Act – Commission held there was no special carve out from the Casual Conversion Term for the Commonwealth in the FW Act – Commission determined an offer can and must be made to eligible casuals who are sitting in an active merit pool at the time they are assessed for casual conversion – it is a 'like for like' offer that must be made, such that if the eligible casual has been working 3 days per week, the ongoing offer is to a part-time position. | |||
CPSU, the Community and Public Sector Union v Commonwealth of Australia (Services Australia) | ||||
C2021/7993 |
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Johns C |
Melbourne |
1 June 2022 | ||
13 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – vaccination – discrimination – s.394 Fair Work Act 2009 – applicant employed as duty manager at respondent's retail venues from January 2020 to 12 November 2021 – applicant raised 'novel argument' that she was dismissed because she belongs to a social origin group known as 'anti-vaxxers' and that unlawful discrimination meant there was no valid reason for dismissal – Victorian Government issued public health direction on 7 October 2021 which required employers not to allow employees to attend site on or after 15 October unless they provided evidence of COVID-19 vaccination, a booking to receive vaccination by 22 October 2021, or a valid medical exemption – applicant failed to provide respondent with evidence she had been vaccinated against COVID-19 – applicant dismissed for inability to perform inherent requirements of role – Commission satisfied that onsite work was inherent requirement of role – Commission considered respondent had no choice but to abide by public health direction – Commission noted the prevention of discrimination on basis of 'social origin' appears in ss.351 and 772 of the Fair Work Act – noted that 'social origin' is an ambiguous term – in enacting protection against social origin discrimination, Parliament relied on an International Labour Organization (ILO) convention – ILO convention offers some useful guidance – social origin 'includes social class, socio-occupational category…' – Commission considered it plausible 'anti-vaxxers' may be seen as a social origin group – while it was arguable that applicant was discriminated against on the ground of social origin, that was not direct discrimination – Commission found applicant not dismissed because she is an anti-vaxxer – the only discrimination that could have occurred was indirect discrimination – applicant was not subject to unlawful discrimination – Commission found valid reason for dismissal – dismissal not harsh, unjust, or unreasonable and therefore not unfair – application dismissed. | |||
Cook v St Vincent De Paul Society Victoria | ||||
U2021/11038 |
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Johns C |
Melbourne |
10 June 2022 | ||
14 |
TERMINATION OF EMPLOYMENT – misconduct – employer policies – vaccination policy – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked as a Control Room Specialist in respondent's Surface Control Room – Control Room requires 24/7 monitoring and is unable to operate entirely on a remote basis – to mitigate risks posed by COVID-19, respondent implemented Site Access Requirements (SAR), which required 2 doses of an approved COVID-19 vaccine by a certain date as a condition of entry – following the Full Bench decision in Mt Arthur Coal, respondent engaged in additional consultation with employees – in November 2021, applicant applied for 6 months' long service leave, to commence when the SAR came into effect in January 2022, and a subsequent period of annual leave at half-pay – respondent was unable to grant lengthy leave period but granted one month's leave commencing from operation of SAR – applicant took sick leave and returned to work in December 2021 – respondent directed applicant to show evidence of compliance with the SAR on 9 December 2021 and 5 January 2022 – these directions were not complied with – on 9 March 2022, respondent sent a letter to applicant, directing him to attend a show cause meeting – applicant provided a letter of response and presented a PowerPoint presentation at the meeting – respondent considered applicant's response and subsequently dismissed him – the Commission found that the SAR mirrors that considered by the Full Bench in Mt Arthur Coal – the requirement to comply with the SAR was a lawful and reasonable direction – applicant's non-compliance with the SAR resulting in being unable to meet the requirements of his role was found to be a valid reason for dismissal of the applicant – applicant was given, and took, the opportunity to respond to the reason for dismissal via the 'show cause' meeting – applicant had a support person at the meeting – applicant argued that he should have been granted the entirety of his 6-month leave application – the Commission found respondent's refusal to grant the entirety of the leave application reasonable, and further found that even if leave was granted, the outcome would simply be deferred – dismissal not harsh, unjust or unreasonable – application dismissed. | |||
Sampson v BHP Olympic Dam Corporation P/L | ||||
U2022/4058 |
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Platt C |
Adelaide |
28 June 2022 | ||
15 |
TERMINATION OF EMPLOYMENT – genuine redundancy – remedy – ss.389, 392, 394 Fair Work Act 2009 – applicant made unfair dismissal application – respondent raised jurisdictional objection that termination was a genuine redundancy under s.389 of the Fair Work Act – in mid-2021, number of employees at respondent reduced from 17 to 13 – respondent decided that applicant's role as a Deputy Director, and one other role, were not needed – another person took on supervisory responsibilities previously performed by applicant, and there were fewer people to supervise given the reduction in staff numbers – Commission noted that the test in s.389(1)(a) where there has been a reorganisation of duties is whether the employee has any duties left to discharge, and when there is no longer any function to be performed by an employee, their position becomes redundant even where aspects of their duties are still being performed by other employees [Jones v Department of Energy and Minerals] – Commission satisfied that respondent no longer required applicant's role to be performed by anyone because of changes in operational requirements of enterprise – Commission found applicant's employment covered by Social, Community, Home Care, and Disability Services Industry Award 2020 so there was a requirement to consult with applicant if respondent made definite decision to make major changes in organisation or structure that were likely to have significant effects on employees – Commission found respondent did not meet its consultation obligations under s.389(1)(b) – applicant asked respondent if her role was being contemplated for redundancy and rather than telling applicant that a process was required before this could be formally discussed with her, applicant was informed of the Board's provisional view that applicant's role would be made redundant – applicant's dismissal was not a genuine redundancy because s.389(1)(b) not satisfied – respondent's jurisdictional objection dismissed, because dismissal was not a genuine redundancy – Commission was satisfied that respondent had a valid reason to dismiss application having regard to its operational requirements – Commission concluded that respondent's failure to consult with applicant as required by the Award resulted in the applicant's dismissal being unjust – if respondent consulted with applicant over a one-week period from the date the definite decision was made to dismiss her, the dismissal would not have been unfair – reinstatement would be inappropriate – respondent paid applicant 8 weeks' severance pay – as respondent was a small business at the time of the dismissal, applicant was not entitled to any redundancy pay at all – due to length of service, if respondent had not been a small business, she would have been entitled to 6 weeks' redundancy pay – Commission held that even if applicant had been entitled to 6 weeks' redundancy pay and her consultation period had been for one week, Commission would have declined to award compensation on account of the additional 2 weeks' pay made to her by respondent – no compensation ordered | |||
Jankovic v Logan Child Friendly Community Limited | ||||
U2021/9948 |
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Hunt C |
Brisbane |
23 June 2022 | ||
16 |
GENERAL PROTECTIONS – dismissal dispute – fixed term contract – s.365 Fair Work Act 2009 – application to deal with general protections contraventions involving dismissal – respondent raised jurisdictional objection that applicant was not dismissed and that his employment came to an end by effluxion of time when his fixed-term contract expired – applicant initially employed as a Public Health Officer from 26 August 2020 to 31 December 2020 – from September 2020 respondent sent various general employee communications discussing prospect of contract extensions for fixed term staff and on 8 December 2020 applicant was offered a contract extension, however he did not accept and his contract was not extended – despite this, applicant continued to work for respondent throughout first quarter of 2021, performing higher duties for which he was not paid – despite numerous attempts, applicant was unable to clarify status of his employment with respondent beyond 31 December 2020 – on 15 April 2021, after attending a meeting with respondent to discuss his use of time off in lieu, applicant took personal leave and did not return to work – on 3 May 2021 applicant filed a workers' compensation claim for which respondent accepted liability – on 25 June 2021, respondent sent a letter of termination to applicant terminating his allegedly fixed-term employment effective 30 June 2021 – Commission held applicant's employment did not end by effluxion of time on 30 June 2021 as applicant was no longer employed on a fixed-term basis – held applicant had become on-going employee once initial fixed term had passed – no evidence of agreement between parties to extend applicant's fixed-term contract to 30 June 2021, nor was there implied variation by performance – Commission observed it does not matter what parties intended if they did not put those intentions into effect – Commission held applicant remained employed under the terms of his original contract and was terminated at the initiative of respondent on 25 June 2021 on performance grounds while he was absent on workers' compensation – Commission critical of respondent's response to Commission's order to produce – respondent produced few documents in response to a comparatively broad order and documents produced were heavily redacted so as to become meaningless – Commission noted a party subject to an order to produce is not at liberty to choose what it will produce, either in full or in part – Commission observed this practice reflected poorly on respondent as a representative of the State of Victoria – jurisdictional objection dismissed – application referred to conciliation. | |||
Fisk v State of Victoria (Department of Health) | ||||
C2021/4254 |
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McKinnon C |
Sydney |
31 May 2022 | ||
Yan v Nu Skin Enterprises Australia, Inc | ||
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – vaccination policy – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked as an Account Manager at respondent's premises in Macquarie Park – on 11 October 2021 respondent implemented a COVID Safety Plan and then created an addendum, which required employees whose duties included front-facing interaction with distributors/partners to get fully vaccinated – on 3 November 2021 there was a conversation between applicant and respondent where an exception was made for her, allowing her to get her first dose by 19 November 2021, rather than be fully vaccinated by 1 December 2021 – on 15 November 2021 a further conversation took place between applicant and respondent, stressing the deadline for the first vaccination – applicant was again informed on this occasion that failure to comply with this company policy by the deadline would result in termination – on 16 November 2021 applicant asked for additional time to decide to take the vaccination – applicant did not have any medical exemptions – the extension was refused – on 19 November 2021 applicant sent an email officially declaring that she would not be getting the vaccine – on 22 November 2021 a termination letter was sent to applicant, effective 6 December 2021 – applicant stated that the beauty/skincare industry is not subject to vaccine requirements – she stated she should have been allowed to work from home at least until 15 December 2021 due to a public health order for employers to require unvaccinated employees to work at their place of residence unless not practicable to do so – the Commission found that the absence of a specific public health order mandating vaccines does not hold weight in relation to whether or not a vaccination policy is a reasonable direction – the Commission considered that given the factual circumstances and the need for a quick response, the respondent met its consultation obligations [Mt Arthur Coal] – the Commission referred to the applicant's contract, which clearly stipulated the location of employment being the respondent's premises and accepted the applicant's role required various forms of in-person contact – the reason for termination of the applicant was found to be valid – applicant was notified of this reason in the termination letter – the applicant was given, and took, the opportunity to respond to the reason for dismissal – application dismissed. | ||
U2021/11755 |
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Cross DP |
Sydney |
30 June 2022 |
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Giggs v St John Ambulance Western Australia Ltd | |||||||||||||||||
TERMINATION OF EMPLOYMENT – misconduct – employer policies – vaccination policy – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as paramedic from April 2012 until dismissal on 22 June 2021 – significant proportion of duties involve response at aged care facilities – Western Australian Government issued public health directions requiring visitors to residential aged care facilities to have up-to-date influenza vaccination – respondent consulted employees and unions in development and implementation of vaccination policy – on 1 May 2020 applicant was advised that staff were expected to provide evidence of vaccination or application for exemption – applicant did not provide evidence or apply for exemption – respondent arranged disciplinary meeting and provided show cause letter stating they considered the applicant was unable to fulfil inherent requirements of her role, that they proposed to terminate her employment, and she was stood down with pay – applicant subsequently applied for exemption on medical grounds and due to conscientious objections – respondent considered no evidence of medical contraindication to vaccine had been provided – respondent considered applicant's views on safety of vaccine was evidence-based decision not amounting to a conscientious objection – application for exemption declined – WA Health advised in March 2021 that public health directions would remain in effect throughout 2021 influenza season – applicant's employment terminated 22 June 2021 – Commission found applicant unable to perform inherent requirement of job – Commission considered respondent's decision to decline applicant's exemption request was reasonable – satisfied respondent's vaccination policy was a lawful and reasonable request – Commission found valid reason for dismissal in relation to applicant's capacity and applicant's conduct in refusing to obey reasonable and lawful direction to comply with vaccination policy – applicant notified of reason for dismissal and provided opportunity to respond – dismissal not harsh, unjust, or unreasonable – application dismissed. | |||||||||||||||||
U2021/6095 |
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Williams C |
Perth |
2 June 2022 | |||||||||||||||
Sadler v Ballarat City Council | ||
GENERAL PROTECTIONS – dismissal dispute – fixed term contract – statutory constraint to ongoing employment – ss.365, 386 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant worked as an Executive Manager for the respondent Council – employed on fixed 5 year term contract – term due to expire on 2 January 2022 – on 5 August 2021 respondent determined it would not invite applicant to enter into a new contract on expiry of the existing contract due to perceived issues with applicant's performance and behaviour – respondent raised jurisdictional objection that applicant was not dismissed as his contract had simply expired – Commission required to determine jurisdictional objection per Coles v Milford – Commission held employment contract was clear on fixed term nature – held that respondent had not made representations to the applicant about extending or offering a new contract – Commission observed contract was consistent with s.95A of Local Government Act 1989 which regulates employment of senior officers of councils – held applicant was aware, or should have been aware, that his position was not ongoing – decision of respondent to not offer another contract was not relevant to question of whether applicant was dismissed – no contractual or other obligation or expectation that applicant's contract would be renewed – definition of 'dismissed' in s.386 of the Fair Work Act applies to s.365 applications – as applicant's employment ended based on agreement reached between parties as part of employment contract it was not a termination at respondent's initiative – held applicant was not dismissed – jurisdictional objection upheld – application dismissed. | ||
C2022/422 |
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Lee C |
Melbourne |
31 May 2022 |
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