10 February 2022 Volume 5/22 with selected Decision Summaries for the week ending Friday, 4 February 2022.
New website to launch this weekend
Decisions of the Fair Work Commission
Other Fair Work Commission decisions of note
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 week ending Friday, 4 February 2022.
1 |
MODERN AWARDS – variation – s.158 Fair Work Act 2009 – Full Bench –Australian Workers' Union (AWU) made application to vary the piece rates clause of the Horticulture Award 2020 – in November 2021, a Full Bench decided to vary Award to insert a minimum wage floor with consequential time recording provisions [[2021] FWCFB 5554] – Full Bench was satisfied that such a variation was justified by work value reasons and was necessary to achieve the modern awards objective – Full Bench then invited interested parties to make submissions on its proposed draft variation to the Award – some submissions contended that a minimum wage floor would disincentivise horticulture workers and productive workers would leave the industry – Full Bench noted that in its November 2021 decision, it 'noted that underperformance can be managed, for example by setting proficiency targets' and was 'not persuaded that introducing a minimum wage floor will 'disincentivise' pieceworkers currently earning more than the minimum award rate' – Full Bench concluded that nothing in the submissions persuaded it to depart from its earlier conclusions – in the November 2021 decision, Full Bench concluded that there was widespread non-compliance with the piece rates provision of the Award, in particular: many growers do not determine pieceworkers rates in accordance with the method prescribed by the Award, pieceworkers rates are set and adjusted unilaterally by the grower rather than being genuinely negotiated between employer and employee, and pieceworkers are usually not provided with a written piecework agreement – some submissions challenged those findings – Full Bench concluded that nothing in the submissions persuaded it to depart from its earlier findings – a number of submissions also advocated the introduction of a 'trainee wage' – Full Bench noted that no application had been lodged to vary the Award to insert a trainee rate – Full Bench noted that if such an application was lodged, it would have to be shown that the introduction of a trainee rate is necessary to ensure the Award achieves the modern award objective (noting that Level 1 in the Award may be considered to be an introductory or training rate) – some submissions proposed a national mandatory licensing scheme for labour hire operators and increased resourcing of the Fair Work Ombudsman – Full Bench noted it was not the Commission's role to comment on such issues as they were matters for the Government – Full Bench did not consider that variation of the Award should be delayed due to those issues – Full Bench proposed to make a number of amendments to its draft variation of the Award, including in relation to: definition of hourly rate, casual loading, junior rates, definition of competent pieceworker, uplift and mechanism for setting and reviewing rates, and calculation of underpinning rate – Full Bench considered that the date of operation for the variation should be 28 April 2022, having regard to considerations in ss.134 and 284 of the FW Act and the perspectives of both employers and employees covered by the Award | |||
Horticulture Award 2020 | ||||
AM2020/104 |
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Ross J |
Melbourne |
1 February 2022 | ||
2 |
TERMINATION OF EMPLOYMENT – misconduct – employer policies – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant dismissed from his employment with Westpac after 35 years of service because an internal investigation found that, after an offsite social event, he inappropriately touched a female employee (Incident One), and verbally abused another (Incident Two) – applicant submitted that any conduct that occurred was late at night in his own personal time and so it had no connection with his work at Westpac, and therefore cannot form lawful grounds for dismissal – Termination Letter said the reason for the applicant's dismissal was the substantiation of the allegation of inappropriate touching and the partial substantiation of the verbal abuse allegation, which were breaches of the Discrimination, Harassment & Bullying Policy, the Sexual Harassment Policy, and the Code of Conduct – Commission satisfied that Incident One had a sufficient connection to the applicant's employment to form a valid reason for his dismissal – not satisfied the applicant's conduct in Incident Two had sufficient connection to his employment to form a valid reason for his dismissal – Commission found that a valid reason existed for the applicant's dismissal – what constitutes consent for physical and sexual interactions has been significantly raised in the community since the applicant commenced his employment – an even higher bar has been set for interactions occurring in work-related environments – while conduct of the employee involved in Incident One (Witness A) may have constituted a breach of the respondent's policies it does not of itself provide a defence for the applicant's behaviour – the applicant was aware that Witness A was a junior work colleague and a married mother – in these circumstances he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature, even more so when the conduct was occurring at a time when both parties were known to each other to be intoxicated and their judgement potentially impaired – Commission satisfied that the dismissal of the applicant was not harsh, unjust or unreasonable – applicant not unfairly dismissed – application dismissed. | |||
Keron v Westpac Banking Corporation | ||||
U2021/3637 |
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Binet DP |
Perth |
4 February 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – minimum employment period – ss.22, 384, 394 Fair Work Act 2009 – unfair dismissal application – respondent raised jurisdictional objection that applicant had not completed 6-month minimum employment period (MEP) required to be eligible to make an unfair dismissal application – respondent claimed applicant's service included periods of unpaid, authorised absence excluded from the period of service due to s.22 of the FW Act – in addition to her employment, applicant was also undertaking tertiary law studies – applicant was dismissed for failure to comply with a direction that she be vaccinated against COVID-19 – applicant was employed for 6 months and one day – during employment period applicant was absent for 24 days – absences included paid annual leave, paid personal leave, and unpaid leave – applicant was absent from work to sit law exams on 6 days and was not paid by respondent for 5 of the 6 days – applicant contended absences to sit law exams had benefit or potential benefit for respondent – Commission found 5 days' absence to sit law exams were 'unpaid authorised absences' within s.22 [Affinity v Kogler] – absence is not otherwise to be counted as service because it was not community service leave, nor a stand down nor absence of a kind prescribed by the regulations – Commission rejected applicant's submission that the 5 days should not be excluded because the exams she sat were for a purpose that had actual or potential benefit to respondent – purpose of absence not relevant in reading s.22 – 5 days was 'excluded period' within the meaning of s.22 and did not count as service – applicant therefore served less than 6 months – jurisdictional objection upheld – applicant not protected from unfair dismissal – application dismissed. | |||
Robertson v Diaman P/L | ||||
U2021/11404 |
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Anderson DP |
Adelaide |
31 January 2022 | ||
4 |
GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – general protections application lodged one day late – applicant commenced employment with respondent in May 2021 as a casual 'operator' at a Rio Tinto-operated mine in the Northern Territory – respondent submitted that applicant was dismissed after he failed to provide evidence of his vaccination status, which was a condition of entry to his work site that had been mandated by the Northern Territory Government – applicant lodged unfair dismissal application on the last day of the 21-day statutory period – Commission accepted applicant's evidence that the applicant called the Commission's registry after lodging his unfair dismissal application, and was advised by registry staff to file a general protections application involving dismissal instead, which he did the following day – Commission found that the reason why the applicant was told to file a general protections application was not clear, nor was it particularly relevant – Commission held that if the applicant had not been advised to file a different application, then the extension of time proceeding would not exist, and this factor weighed in favour of granting an extension of time – Commission satisfied that there were exceptional circumstances – extension of time granted. | |||
Reisenleiter v Workpac | ||||
C2021/8482 |
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Lake DP |
Brisbane |
2 February 2022 | ||
5 |
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged 14 days late – respondent was required to comply with public health directions and thus issued a direction to workers regarding vaccination – applicant's employment was terminated effective 7 December 2021 because he did not comply with respondent's direction to provide, by 15 October 2021, evidence of vaccination, a vaccination booking, or a medical exemption – applicant contended that he sent his application to Commission by post on or around 23 December 2021 – the 21-day statutory period for lodging the application ended on 28 December 2021 – applicant said that about a week after he posted his application, a Commission staff member contacted him and said his application was incomplete and unable to be processed – applicant had no record of that discussion and could not recall who he spoke to – applicant subsequently emailed his application to Commission on 11 January 2022 – Commission noted that staff had consulted the Commission's records, which established that an incomplete application (with first 2 pages missing) was received by post on 31 December 2021 – Commission records further showed that on 5 January 2022, Commission staff advised applicant by phone and by email that his application was incomplete, and that he needed to submit a complete application – the email from Commission staff reiterated that there were strict time limits – Commission concluded that applicant provided acceptable explanation for part of the delay in lodging his application, being the period up to 5 January 2022 – Commission found there was no acceptable explanation for the further 6-day delay between 6-11 January 2022 – Commission not satisfied there were exceptional circumstances – extension of time refused | |||
Marshall v Citywide Service Solutions P/L | ||||
U2022/691 |
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O'Neill C |
Melbourne |
31 January 2022 | ||
Keyworth v Australian Capital Territory as represented by Canberra Health Services | ||
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a Quality and Safety Data Officer in the Quality Assurance Team – dismissed on grounds of underperformance – applicant's manager discussed her concerns with his performance in January, March, April and May of 2019 – in September 2019 the manager sent the applicant an email directing him to attend a meeting with her and a representative from People and Culture – the applicant was invited to bring a support person to this meeting – the email referred to continuing concerns regarding his performance which had been raised in an informal capacity and noted that his work performance was considered to be below the expected standard – following the meeting the manager issued a 'Performance Record' on 21 October 2019 in the form of a letter to the applicant and particularised the respondent's concerns relating to the applicant missing deadlines and quality of work; regularly turning up late to work; not appropriately reporting leave; and inability to locate reports – the applicant responded and disagreed with almost all the performance issues raised – the manager continued to monitor the applicant's performance but did not see any improvement – on 22 January 2020 the manager wrote to the applicant stating that she intended to initiate the underperformance process in accordance with section H of the ACT Public Sector Administration and Related Classification Enterprise Agreement 2018-21 – a draft Action Plan was attached to the letter – the applicant was asked to attend a further meeting – following the meeting and further correspondence the respondent decided that an underperformance plan would be initiated – action plan had 4 key goals: improved communication; meeting deadlines; managing work requests and workloads; and quality of work – at the completion of the action plan, the manager concluded that the applicant had not adequately maintained the required performance standard during the action plan period – the applicant took a period of unplanned leave – during that period the applicant met with senior management and made allegations of bullying arising from the underperformance process – while still on personal leave the applicant was informed of the underperformance process outcome by letter signed by the Chief Operating Officer of the respondent – letter stated the respondent proposed to terminate the applicant's employment in response to his unsatisfactory work – after the applicant provided a response to the letter his employment was terminated – on balance the Commission found there was a valid reason for the applicant's dismissal – considered whether the matters that led to the finding that the applicant had not demonstrated consistent, satisfactory performance were sufficient to support a finding that there was a valid reason for his dismissal – Commission ultimately satisfied that the respondent had genuine concerns with respect to the applicant's performance, and that these concerns were valid concerns for an employer to raise with an employee and expect to have rectified – satisfied that the performance matters considered as a whole were sufficient to find that there was a valid reason for dismissal – Commission found applicant's dismissal was not harsh, unjust or unreasonable – applicant was not unfairly dismissed – application dismissed. | ||
U2020/15111 |
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Dean DP |
Canberra |
1 February 2022 |
Smith v BT Automation P/L | ||
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – applicant employed on 2 employment contracts with respondent since July 2019 – one short-term contract and one as 'ServiceNow consultant' – an employment condition of role was for applicant to obtain and maintain Australian Government Security Vetting Agency (AGSVA) baseline security clearance as this is required by respondent's clients – applicant had previously held security clearance but had ceased when applicant commenced work in private sector – applicant was found guilty of offences in 2019 – applicant informed respondent of conviction – respondent placed applicant to work with its only client which did not require security clearance – client subsequently required police check – applicant unable or unwilling to obtain police check – respondent determined no further roles for applicant as all respondent's clients required police checks and/or security clearance – applicant was placed on extended unpaid leave – applicant submitted that she was employed as tender writer and did not require security clearance – respondent submitted that applicant was not solely employed as tender writer and condition of employment was to hold and maintain security clearance and police checks – Commission satisfied there was a valid reason for applicant's dismissal – Commission found it was clear that applicant's employment contract required the ability to hold and maintain AGSVA baseline security clearance and police checks – applicant did not consent to process to obtain required clearance or check – Commission not satisfied that applicant had discharged onus of proving dismissal was harsh, unjust or unreasonable – application dismissed. | ||
U2021/4561 |
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Dean DP |
Canberra |
4 February 2022 |
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