17 February 2022 Volume 6/22 with selected Decision Summaries for the week ending Friday, 11 February 2022.
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, 11 February 2022.
1 |
RIGHT OF ENTRY – revocation of permit – ss.510, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant sought permission to appeal against decision not to revoke a union official's entry permit – Commission at first instance concluded that it would be unreasonable in all circumstances to suspend or revoke the union official's entry permit and that the Commission was not required to take any action in respect of that entry permit under s.501(1) FW Act – appellant contended the Commission erred on 2 grounds in reaching its decision – first by applying the wrong test and effectively replacing, or unduly limiting, the consideration of whether it would be 'harsh or unreasonable' to suspend or revoke an entry permit (s.510(2)) only to circumstances where it would be 'protective and corrective' to do so – second by failing to properly consider the 'protective' function s.510 by only taking into account the union official's personal circumstances and not broader considerations – appellant submitted on second ground that the Commission was required to take into account the need to send a message of deterrence to all other permit holders that they cannot engage in behaviour similar to that of the union official's and continue to enjoy privileges as a permit holder without interruption – appellant contended that by reason of grounds 1 and/or 2, the Commission erred in finding that it would be 'unreasonable' to revoke or suspend the union official's entry permit and erred in taking no action under s.510(1) – Full Bench did not consider that the appeal gave rise to any issue of significance concerning interpretation of s.510 – held that consideration in decision at first instance constituted a correct statement of the interpretation and application of s.510 – noted that appellant did not contest the correctness of those propositions – found it would serve no purpose to grant permission to appeal to consider those matters further – on first appeal ground, Full Bench held that undertaking evaluative judgment required by s.510(2) in a manner informed by the object of the provision was not a substitution of the statutory test established by the test of s.510(2) – found that appellant's first contention of error was without merit and had no reasonable prospects of success – on second appeal ground, Full Bench held that appellant did not advance a persuasive argument that the Commission is required under s.510(2) to take into account the need for general deterrence – noted that the object of s.510 is protective rather than punitive – found that appellant's second contention of error was contrary to the case advanced at first instance and there was no basis to conclude that need for general deterrence in respect of the official's contravention must again be taken into account – permission to appeal refused. | |||
Appeal by Australian Building and Construction Commissioner against decision of Gostencnik DP of 27 October 2021 [[2021] FWC 6198] Re: Savage & Ors | ||||
C2021/7781 |
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Hatcher VP |
Sydney |
7 February 2022 | ||
2 |
CASE PROCEDURES – referral to Full Bench – s.615 Fair Work Act 2009 – applicant lodged a general protections application involving dismissal on 4 January 2022 – on 21 January 2022, applicant made an application under s.615 of the Fair Work Act to have questions referred to a Full Bench (referral application) – referral application was revised on 24 January 2022 – questions relate to the lawfulness and reasonableness of respondent's direction to all front line and airport-based team members to be vaccinated against COVID-19 by 15 November 2021 – applicant submitted that her general protections dispute could not be resolved at conciliation conference unless the questions in the referral application are first ruled on by a Full Bench – President of the Commission noted that it was well-settled that s.615 confers a broad discretion on the President to direct that a function or power of the Commission be exercised by a Full Bench, but that does not mean the President can direct a Full Bench to perform a function or exercise a power outside the Commission's jurisdiction – President concluded that Commission did not have jurisdiction to determine the questions posed in the referral application – FW Act limits how the Commission can deal with general protections applications involving dismissal – s.368 confers non-determinative powers on Commission to deal with general protections dismissal disputes (such as by conference) and Commission only has jurisdiction to arbitrate (that is, to hear and make a binding determination) if the preconditions in s.369(1) are satisfied – s.369(1) requires that the Commission has issued a certificate under s.368(3) and that both applicant and respondent, within 14 days after certificate was issued, have notified the Commission that they agree to the Commission arbitrating the dispute – President noted that no s.368(3) certificate has been issued, and the preconditions in s.369(1) have not been satisfied – President concluded that it was not necessary to determine whether a Full Bench ruling on the questions in the referral application would involve an impermissible exercise of judicial power by the Commission – President nonetheless stated that to the extent that the applicant sought 'relief in the form of a declaration of existing legal rights, such as whether the Respondent has breached a provision of the FW Act, granting such relief would involve the exercise of judicial power. Determining existing legal rights is a matter for the courts.' [DP World Melbourne Ltd] – President also stated that the Commission 'may form an opinion about existing legal rights as a step in arriving at the ultimate conclusions on which it determines the future rights of the parties, but such an opinion does not bind the parties and cannot operate as a binding declaration of rights.' [Re Cram; Ex parte Newcastle Wallsend Coal Co P/L] – referral application dismissed | |||
Le v Virgin Australia Airlines P/L | ||||
C2022/301 |
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Ross J |
Melbourne |
10 February 2022 | ||
3 |
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – paid personal leave – mandatory vaccination – ss.99, 739 Fair Work Act 2009 – application to deal with dispute regarding entitlement to paid personal leave under Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 – applicant was an associate nurse unit manager – from 8 October 2021, respondent was subject to directions issued by Victorian Chief Health Officer regarding mandatory COVID-19 vaccination for workers at its facility – directions require respondent to take all reasonable steps to ensure that, from 15 October 2021, unvaccinated workers, other than excepted persons, do not work on premises of facility – however, respondent was permitted to allow unvaccinated workers onsite if they had a booking to receive a vaccine such that they would be partially vaccinated by 29 October 2021 – applicant is unvaccinated and not an excepted person – on 15 October 2021, applicant obtained a medical certificate certifying she was unfit for work due to illness until 12 November 2021 – on 19 October 2021, respondent told applicant that because she did not provide evidence of vaccination or a booking by 15 October, she would be stood down and was not entitled to sick leave – respondent told applicant that if she did not provide evidence of her vaccination status by 28 October 2021, respondent would consider she was unable to perform the inherent requirements of her position and she would no longer be paid – on 12 November 2021, applicant provided a further medical certificate certifying she was medically unfit for work until 10 December 2021 – applicant submitted she is entitled to paid personal leave due to personal illness or injury from 28 October 2021 to 10 December 2021 under Agreement and that she complied with evidentiary requirements by providing medical certificates – applicant submitted that while she is on paid personal leave, she is excused from attending work and therefore excluded from respondent's obligations under the Chief Health Officer's directions to preclude her from attending workplace – respondent submitted applicant has no entitlement to such leave as under Agreement the entitlement to paid personal leave is based on number of ordinary hours the employee would have worked on days on which the leave was taken, and as respondent is not legally permitted to allow applicant to work on premises and she cannot carry out her role from home, the number of ordinary hours she would have worked is zero – Commission held respondent's construction of personal leave provision of Agreement was correct – Commission found that the evident purpose of the personal leave provision in the Agreement is to ensure employees are paid for absences for the period that the employee would otherwise have been required or permitted and ready, willing and able to work ordinary hours – Commission held applicant was not 'required' or 'permitted' to attend work after 29 October 2021 because the directions imposed by the Chief Health Officer meant that the respondent could not lawfully permit applicant to work at its facilities, nor was applicant 'ready, willing or able' to work – since 28 October, applicant would not have worked any ordinary hours on the days that purported leave was taken – Commission held applicant's absence from work since 29 October was not the exercise of a leave entitlement and she had no entitlement under Agreement to be paid for purported personal leave taken after 29 October – application dismissed. | |||
Wilkinson v Eastern Health | ||||
C2021/7638 |
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Gostencnik DP |
Melbourne |
10 February 2022 | ||
4 |
TERMINATION OF EMPLOYMENT – termination at initiative of employer – mandatory vaccination – s.394 Fair Work Act 2009 – applicant lodged unfair dismissal application – respondent raised jurisdictional objection that applicant was not dismissed – before alleged dismissal, applicant was a casual employee who worked as a cabinetmaker – Victorian Government issued Directions requiring certain workers to be vaccinated against COVID-19 – respondent's understanding of the Government Directions was that employees could not enter a construction site after 23 September 2021 unless they had their first vaccine dose, or a booking or a medical exemption – on around 17 September 2021, respondent sent correspondence to its employees including applicant, which advised of the Government Directions' restriction on attending building sites – it was uncontested that applicant rarely entered building sites – applicant estimated that he spent 99% of his time working in the respondent's factory – on 28 September 2021, applicant sent correspondence to respondent raising concerns about the vaccine – applicant stopped coming to work on 14 October 2021 – respondent understood that from 15 October 2021, the Government Directions prohibited employees from entering respondent's factory and office unless they were vaccinated – applicant argued that the correspondence received from respondent on 17 September was notification that he was dismissed, and that his dismissal took effect on 15 October – respondent submitted that applicant remained employed with respondent but was suspended without pay until further notice – Commission found no evidence that applicant's employment had been terminated at respondent's initiative, within meaning of s.386(1)(a) of the Fair Work Act – rather, respondent has 'left the door open' for applicant to return to work if he is able to do so – both parties accepted that in the week prior to 15 October, applicant was not told he had been suspended but was told he was not allowed on the premises after 15 October unless he met the vaccination requirements in the Government Directions – Commission was satisfied that the Government Directions applied such that applicant was required by 15 October 2021 to have a first dose or a booking or a medical exemption – Commission found there was no forced resignation under s.386(1)(b) – respondent merely complied with the Government Directions – Commission concluded that applicant heeded the Government Directions and chose not to attend a workplace that he was by then not permitted to enter due to the Government Directions – applicant has not been dismissed – Commission found that respondent was no longer offering work to applicant and this was consistent with applicant's status as a casual employee and the fact that he is unable to hold himself out as being available for work – application dismissed | |||
Lord v Amywood P/L t/a Central Kitchens | ||||
U2021/9870 |
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Wilson C |
Melbourne |
7 February 2022 | ||
5 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – applicant lodged unfair dismissal application – applicant was a Mixed Plant Operator who worked at respondent's facility in Colac – Victorian Government issued public health orders requiring manufacturing workers to be vaccinated against COVID-19 in order to work on site, unless they had a valid medical exemption – applicant's employment was terminated because he chose not to be vaccinated – respondent told its employees that from 15 October 2021, unvaccinated employees without a valid medical exemption could not work at any site, may be unable to meet the inherent requirements of their role, and may have their employment terminated – applicant provided medical certificate on 13 October 2021, but respondent determined that it did not meet the exemption criteria specified in the Government's public health orders because it did not certify that applicant was unable to receive a COVID-19 vaccine due to a medical contraindication or acute medical illness and it was not clear that the doctor who issued it was a medical practitioner as defined in the orders – respondent subsequently found out that the doctor who issued the certificate has been suspended by the Australian Health Practitioner Regulation Agency and can no longer practice in Australia – respondent advised applicant by letter on 14 October 2021 that the medical certificate did not meet the requirements of the Government public health orders – respondent gave applicant a copy of the public health orders, a letter for the doctor explaining what was required for a valid exemption, and a consent form for the disclosure of applicant's medical information to respondent – applicant refused to sign consent form for privacy reasons – respondent offered to arrange and pay for an appointment with an independent medical specialist who was eligible to provide advice regarding exemptions – applicant was advised in writing on 14 October that he was suspended without pay from 15 October and was asked to provide a valid medical exemption by 22 October 2021 – applicant did not provide any further medical exemption information – late in the evening of 14 October, applicant asked to take long service leave so he had more time for another drug to become available or for the vaccine mandate to end – respondent refused leave request – respondent submitted that: it was uncertain whether applicant could meet the requirements of the Government public health orders and therefore be able to perform his role; long service leave was not a viable option to avoid the public health orders because the Government indicated the vaccination requirements would be long-term; and the respondent was short-staffed and could not operationally accommodate any leave requests or absences – respondent did not accept any other leave requests from other employees who had been suspended as a result of the public health orders – applicant argued that under the Long Service Leave Act 2018 (Vic) an employer can only refuse a request if it has reasonable business grounds, which the respondent did not have – on 22 October 2021, applicant was told if he did not provide evidence of a first dose or valid medical exemption, respondent would assess his ongoing employment – on 25 October, applicant confirmed he did not intend to be vaccinated – respondent terminated applicant's employment on the basis he was legally unable to perform his duties on site, which was a requirement of his role – respondent took a consistent approach with all employees who chose not to be vaccinated and did not have a valid exemption – there were more than a dozen other employees whose employment was terminated – Commission found that the Government's public health orders prohibited respondent from allowing applicant to work on site from 15 October 2021 unless applicant was at least partially vaccinated or had a valid medical exemption – found that applicant was therefore unable to fulfil his role, which could only be performed on site, and there were no suitable alternative duties available – respondent had a valid reason to terminate applicant's employment – Commission was satisfied that respondent's refusal to grant long service leave request was made on reasonable business grounds – Commission found that respondent afforded procedural fairness to applicant prior to terminating his employment – applicant was given ample opportunity to provide a valid medical exemption – Commission concluded that dismissal was not harsh, unjust or unreasonable and not unfair – application dismissed | |||
Edwards v Regal Cream Products P/L | ||||
U2021/10166 |
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O'Neill C |
Melbourne |
9 February 2022 | ||
Hirigoyen v Adventist Healthcare Limited | ||
CASE PROCEDURES – referral to Full Bench – s.615 Fair Work Act 2009 – applicant lodged a general protections application involving dismissal on 22 October 2021 – on 19 January 2022, Commission issued a certificate under s.368(3)(a) of the Fair Work Act in the general protections matter – that same day, applicant applied under s.615 FW Act to have a question referred to a Full Bench – question related to directions that were issued to employees requiring them to be vaccinated against COVID-19 (referral application) – President of the Commission noted that it was well-settled that s.615 confers a broad discretion on the President to direct that a function or power of the Commission be exercised by a Full Bench, but that does not mean the President can direct a Full Bench to perform a function or exercise a power outside the Commission's jurisdiction – President concluded that Commission did not have jurisdiction to determine the question posed in the referral application – FW Act limits how the Commission can deal with general protections applications involving dismissal – s.368 confers non-determinative powers on Commission to deal with general protections dismissal disputes and Commission only has jurisdiction to arbitrate (that is, to hear and make a binding determination) if the preconditions in s.369(1) are satisfied – s.369(1) requires that the Commission has issued a certificate under s.368(3) and that both applicant and respondent, within 14 days after certificate was issued, have notified the Commission that they agree to the Commission arbitrating the dispute – President noted that respondent in this case has not notified Commission that it agrees to Commission arbitrating the general protections dismissal dispute, so Commission has no jurisdiction to continue dealing with the general protections application – referral application dismissed | ||
C2021/7156 |
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Ross J |
Melbourne |
9 February 2022 |
Australian Rail, Tram and Bus Industry Union v Sydney Trains t/a Sydney Trains | ||
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about an Overtime Bonus payment for train drivers when they have taken paid special leave relating to Covid-19 (Special Covid Leave) in accordance with the NSW Government Circular C2021-14 Employment Arrangements during COVID 19 – application was made pursuant to clause 8 of the Sydney Trains Enterprise Agreement 2018 – clause 3.9 of the Drivers Rostering and Working Arrangements (DRWA), which is incorporated into the Agreement, gives drivers working for Sydney Trains an entitlement to an Overtime Bonus when they work more than 19 shifts in a 28-day period – despite the use of the word 'working', the DRWA recognises in certain circumstances that certain shifts not actually worked count towards the calculation of the Overtime Bonus entitlement – RTBU provided the following question for arbitration: 'In the proper application of the Sydney Trains Enterprise Agreement 2018, Drivers Rostering and Working Arrangements, and 2019 [Overtime Bonus] Agreement, do rostered shifts missed due to Paid Special Leave as provided by NSW Government directions count towards the '19 of 28 requirement' for Overtime Bonus calculations?' – Commission accepted for the purposes of clause 3.9.4 of the DRWA that an employee remains 'on roster' whilst on Special Covid Leave – clause 3.9.4 of the DRWA limits the type of leave which may be included for the purposes of the Overtime Bonus calculation – it does not list all forms of paid leave; for example sick, parental, carer's and special leave are not included – as Special Covid Leave is not listed, days taken by an employee as Special Covid Leave could not under the Agreement (which incorporates the DRWA) be a recognised period for the purposes of calculating the Overtime Bonus – Commission must consider the wording of the Agreement and any incorporated material – the entitlement to Special Covid Leave was not drawn from the Agreement or the DRWA but mandated through NSW Government directions – Commission held that as such, Sydney Trains was not granting Special Covid Leave as a form of special leave under the Agreement – clause 3.9.4 of the DRWA specifically lists the days which are recognised for the purpose of the Overtime Bonus payment in a manner that provides no scope for additional days to be included, it is clear and unambiguous – Commission determined that in accordance with the Agreement, and the incorporated DRWA, rostered shifts missed due to Special Covid Leave as provided by NSW Government directions do not count towards the '19 of 28 requirement' for the Overtime Bonus calculations as stipulated at 3.9 of the DRWA. | ||
C2021/6829 |
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Bull DP |
Sydney |
8 February 2022 |
OSM Australia P/L v Construction, Forestry, Maritime, Mining and Energy Union & Ors | ||
INDUSTRIAL ACTION – order against industrial action – ss.19, 413, 418 Fair Work Act 2009 – application for unprotected industrial action to cease and not occur – OSM Australia P/L, a marine personnel labour hire company (company), supplied employees for crewing 2 vessels servicing the Otway Offshore Project in Victoria – COVID-19 safety protocols required employees to isolate for 7 days before boarding vessel – under OSM Australia P/L and MUA Offshore Oil and Gas Enterprise Agreement 2021 time spent isolating by employees is paid as 'dead days' rather than superior benefit 'duty days' – Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and employees demanded isolation period be paid as 'duty days' – on 7 February 2022 company directed employees join their vessel as scheduled and failure to join vessel would constitute serious misconduct and may warrant dismissal – company submitted 5 employees who failed to commence work as scheduled on 8 February 2022 ('tranche 1 employees') engaged in unprotected industrial action and 6 employees who indicated they would not report to work as scheduled on 15 February 2022 ('tranche 2 employees') threatened unprotected industrial action – company submitted that industrial action was organised by CFMMEU – CFMMEU submitted no industrial action had happened or been threatened because employees simply exercised their rights as casuals to decline engagement or resigned – CFMMEU denied organising any industrial action – Commission found tranche 1 employees had completed 1 week of a 5 week engagement comprised of 7 days in isolation and 4 weeks at sea – found none of the tranche 1 employees, either by conduct or notice, had resigned – found action or threatened action of tranche 1 employees and 4 tranche 2 employees fell within the definition of 'industrial action' in s.19(1) of the FW Act and was not subject to exclusion in s.19(2) – found industrial action not protected because Agreement's nominal expiry date had not passed and other requirements in s.413 of FW Act not met – found CFMMEU organised industrial action as its involvement exceeded merely relaying views of its members to company – Commission ordered stoppage of industrial action that is happening, ordered that threatened industrial action not occur and that CFMMEU cease organising the industrial action – order confined to failure or refusal by particular employees to attend work or perform any work at all on or in relation to the vessel relevant to their engagement – determined period for order be 14 days to accommodate any further isolation requirements – persons affected by order granted liberty to apply to vary, extend or rescind order. | ||
C2022/1007 |
||
Colman DP |
Melbourne |
10 February 2022 |
Treston v Civil Aviation Safety Authority (an Australian Government public service agency) t/a CASA | ||
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – flexible working arrangements – ss.65, 739 Fair Work Act 2009 – respondent refused applicant's request for flexible working arrangements – request denied on reasonable business grounds – under s.739(2)(a) of the Fair Work Act, Commission must not deal with an application to determine if employer refused employee's request on reasonable business grounds pursuant to s.65(5) unless parties have agreed in a contract of employment, enterprise agreement or other written agreement to the Commission dealing with the matter – issue was whether the parties agreed in the Civil Aviation Safety Authority Enterprise Agreement 2016-2019 that the Commission could deal with this dispute – respondent raised jurisdictional objection that Commission did not have jurisdiction to deal with dispute – respondent submitted clause 67 (flexible working arrangements) of Agreement does not exclude the prohibition in s.739(2) FW Act – respondent submitted a general reference in an agreement to dealing with a National Employment Standards (NES) dispute is insufficient when considering exclusion in s.739(2) FW Act [Sims] and [Brow] – respondent submitted clause 8 (dispute settlement) of Agreement not specific to satisfy test in Sims and Brow to overcome prohibition in s.739(2) FW Act – respondent submitted clause 67.1 of Agreement only restates statutory right under s.65(1) FW Act to request flexible working arrangements – applicant submitted that Commission had jurisdiction to deal with the dispute – applicant submitted parties agreed, when entering into the Agreement, that the Commission may deal with disputes relating to matters arising under the Agreement or the NES – applicant submitted inclusion of clause 67 made request for flexible working a matter arising under the Agreement – applicant sought to distinguish Sims and Brow on basis that in those cases, the flexibility arrangements was not covered in the relevant contract or enterprise agreement therefore there was no agreement consistent with requirements of s.739(2) FW Act to allow the Commission to exercise its jurisdiction – applicant submitted dispute brought under clause 8.1.1 of the Agreement, being a matter arising under the Agreement – applicant relied on exercise of jurisdiction by Commission in Victoria Police – Commission distinguished Victoria Police – found clause in Victoria Police Agreement was detailed as to enliven jurisdiction – Commission found s.65 FW Act does not provide any right for an employee to seek review of an employer's decision to refuse an employee's request for flexible working arrangements – Commission found clause 67 of Agreement does not overcome the prohibition within s.739(2)(a) and clause 67 does not incorporate s.65 FW Act – clause 67 does nothing further than inform employees covered by the Agreement that they have a right to request flexible working arrangements under FW Act – Commission not satisfied clause 67 deals with whether respondent had reasonable business grounds to refuse applicant's request – not a matter arising under the Agreement for clause 8.1.1 – Commission does not have jurisdiction to deal with the dispute – application dismissed. | ||
C2021/4732 |
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Hunt C |
Brisbane |
7 February 2022 |
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