24 February 2022 Volume 7/22 with selected Decision Summaries for the week ending Friday, 18 February 2022.
Online Learning Portal launched
Decisions of the Fair Work Commission
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, 18 February 2022.
1 |
MODERN AWARDS – ambiguity or uncertainty – s.160 Fair Work Act 2009 – Full Bench – Australian Entertainment Industry Association trading as Live Performance Australia (LPA) lodged an application seeking variation of the Live Performance Award 2020 to resolve ambiguities – firstly, rate of pay for casual employees on Sundays and public holidays – secondly, the application of provisions concerning meal allowances and incidentals allowances for employees when travelling – LPA contended that as 'minimum hourly rate' and 'appropriate per hour rate' were not defined in the Award, it was not clear whether Sunday and public holiday rates are inclusive of the 25% casual loading – LPA also contended that with respect to meal and incidentals allowances while travelling, the concepts of 'one week or less' and 'one week or more' appear to overlap – Full Bench's provisional view is that the Award is ambiguous in the respects identified in LPA's application, and the Award needs to be varied as per the draft determination agreed between the LPA and the Media, Entertainment and Arts Alliance, with 2 exceptions – first exception is that Full Bench concluded that it was uncertain whether clause 21.4 of Award included the 25% loading in respect of casual employees and therefore, clause 21.4 should be varied to provide that '(a) All work done by a full-time or part-time musician on a public holiday will be paid at 200% of the minimum hourly rate' and '(b) All work done by a casual musician on a public holiday will be paid at 225% of the minimum hourly rate' – second exception is that because the expression 'appropriate per hour rate' in clause 57.3 is uncertain in its meaning, Full Bench's provisional view is that clause 57.3 should be varied to clarify that it concerns the ordinary-time rate of pay for casual employees – clause 57.3 should be varied to state: 'For each ordinary hour worked, a casual employee must be paid the minimum hourly rate specified in clause 11-Minimum rates, for the relevant classification level, plus a loading of 25% of the minimum hourly rate' – interested parties have 14 days from the date of this decision to file any submissions in relation to the Full Bench's provisional views and/or the Full Bench's consolidated draft determination | |||
Live Performance Award 2020 | ||||
AM2021/78 |
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Hatcher VP |
Sydney |
15 February 2022 | ||
2 |
TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as full-time marketing specialist since July 2020 – applicant asserted notification of dismissal occurred on 30 September 2021 and dismissal took effect 14 October 2021 – respondent objected to application on various grounds including that application was not lodged within 21 days of dismissal – respondent contended that dismissal took effect on 30 September 2021 – applicant submitted a termination letter received from respondent, which stated that her employment would end on 14 October and that respondent would notify Department of Home Affairs of the change in applicant's work status – applicant also submitted correspondence from Department of Home Affairs which stated that Department had been informed that applicant's employment with respondent would cease on 14 October 2021 – respondent relied on Siagian to establish when termination of employment took effect – Commission found respondent's use of Siagian was misconceived, facts of present matter bear no resemblance – Commission applied Jackson to determine when the dismissal took effect – Commission found that the termination letter dated 30 September 2021 clearly stated employment was to end 14 October 2021 – applicant could not have known that dismissal took effect immediately on 30 September 2021 – letter from Department of Home Affairs made it entirely reasonable for applicant to understand employment would end on 14 October 2021 – Commission found termination took effect on 14 October 2021 and application was filed within required time – not necessary to grant a further period of time for application to be made – Commission dismissed respondent's jurisdictional objection in relation to application being made outside of required timeframe – directions issued for hearing to determine merits of application. | |||
Patrone v Unique Muscle P/L | ||||
U2021/9891 |
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Asbury DP |
Brisbane |
15 February 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – misconduct – social media – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as an Inbound Organiser – summarily dismissed for social media posts which included support for violence, homophobia, and transphobia – applicant used respondent's internal messaging system (Slack Post) on 21 September 2021 to provide comment on the violent protest that took place outside the CFMMEU's Victorian construction division's office in the Melbourne CBD following the state government's announcement of a mandatory COVID-19 vaccination requirement for the construction industry – applicant's immediate manager raised a concern with the applicant regarding this post which he then deleted – applicant rejected the proposition that the post was contrary to the respondent's public position – because of the applicant's post on Slack Post, the respondent's Director of Growth decided to review the applicant's social media posts which were able to be viewed on his public personal Facebook account – on viewing the applicant's Facebook posts, the Director of Growth was concerned that a number of posts were variously offensive and derogatory, or potentially constituted harassment and/or a risk to health and safety, or had the potential to bring the respondent into disrepute – Commission considered Rose v Telstra and Starr – Commission satisfied that the applicant had a number of particular and relevant obligations under the Code of Conduct, Harassment, Discrimination & Workplace Bullying Policy and Social Media Policy – found that a number of the applicant's Facebook posts were in breach of the respondent's policies as well as being contrary to public positions of the respondent – Commission satisfied that the conduct of the applicant constituted serious misconduct by reason of the applicant's breach of explicit policies of the respondent that he was bound to comply with under his contract of employment – satisfied the applicant's conduct establishes a valid reason for his dismissal – while the disciplinary process followed by the respondent was procedurally unfair in that it failed to give the applicant a proper opportunity to respond, Commission was satisfied the dismissal of the applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal which outweighed any procedural unfairness – application dismissed. | |||
Corry v Australian Council of Trade Unions t/a ACTU | ||||
U2021/9032 |
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Masson DP |
Melbourne |
15 February 2022 | ||
4 |
CASE PROCEDURES – no reasonable prospects of success – whether application survives death of applicant – ss.394, 587 Fair Work Act 2009 – application for unfair dismissal remedy – application was filed outside the statutory timeframe and matter was listed for a directions hearing so the Commission could determine whether an extension of time should be granted – shortly before the directions hearing, respondent notified the Commission that applicant had died on the previous day – directions hearing still took place – Commission noted that as observed in Stan v Frontline Australasia, s.394 of the Fair Work Act confers on the aggrieved employee only the right to make an application for a remedy for unfair dismissal, not an entitlement to the remedy itself – the 'personal discretionary nature' of the right to apply for an unfair dismissal remedy made it unlikely that the right to pursue the application could be 'assigned, transmitted, devolved or passed to another person' [Stan v Frontline Australasia] – Commission considered that the applicant's death prevented application from being pursued or discontinued by another person – application had no reasonable prospects of success – application dismissed under s.587(1)(c). | |||
Dwyer v Papa Organics P/L | ||||
U2021/8187 |
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Simpson C |
Brisbane |
15 February 2022 | ||
5 |
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – flexible working arrangements – mandatory vaccination – s.739 Fair Work Act 2009 – applicants each employed at a school – applicants filed applications alleging a dispute arising under Victorian Catholic Education Multi-Enterprise Agreement 2018 regarding COVID-19 vaccination status – respondent raised jurisdictional objection that Commission did not have jurisdiction to determine the dispute, because the disputes procedure clause of the Agreement (clause 22) limits agitation and resolution of disputes to those about the application or interpretation of the Agreement or the National Employment Standards – respondent submitted dispute raised by applicants was not covered by clause 22 – directions were issued by Victorian Chief Health Officer (VCHO) that mandated vaccinations – respondent advised applicants that unvaccinated staff were to be refused entry to the school grounds – respondent issued direction to each applicant to provide evidence of their COVID-19 vaccination status – respondent advised applicants it needed to know if each intended to get vaccinated or instead wished to take leave as a result of their choice not to become vaccinated – applicants submitted respondent failed to consult about major change (clause 17 of the Agreement) – applicants submitted changes made to their work contracts was major change – applicants relied on Mt Arthur Coal – respondent disputed clause 17 had effect as they were required by law to implement VCHO's directions – respondent distinguished Mt Arthur Coal as that case involved decision of the employer as no government health order was in place and the scope of the consultation term in the enterprise agreement in that case extended to any dispute arising in the course of employment – Commission accepted respondent's reasoning – Commission found applicants' submissions that respondent was obligated to consult with them about major changes to their work contracts was a misapprehension of the consultation term in the Agreement – Commission found respondent's direction regarding vaccination status was not a definite decision on the part of the respondent and rather it only detailed steps required to comply with VCHO direction – Commission found respondent's direction was not major change likely to have significant effects – no obligation to consult under clause 17 – applicants submitted respondent unilaterally and impermissibly varied their contracts of employment – Commission found that alleged unilateral changes to employment contracts was not within scope of clause 22 – applicants challenged respondent's authority to direct them to take leave, including long service leave or leave without pay – Commission found no term of the Agreement was contravened by respondent, so Commission did not have jurisdiction to determine this issue – respondent submitted it was not feasible for applicants to continue to work from home as when VCHO direction came into effect students were returning to the classroom – none of the applicants asked to work from home or to otherwise have their working arrangements changed – Commission found decision of respondent not to offer alternative work duties or arrangements was not major change within clause 17 – Commission found respondent did not have an obligation to consult with its employees about alternative work duties or arrangements – applicants submitted a breach of the general protections provisions of the Fair Work Act – Commission found no jurisdiction to determine that issue as no specific application had been made, and if a specific application was made, the Commission is only empowered, in non-dismissal dispute matters under s.372 of the FW Act, to conduct a conference if the parties agree to participate – applicants submitted respondent's direction contravened the Privacy Act 1988 – Commission not satisfied that a dispute about the application of the Privacy Act is a dispute about the application or interpretation of the Agreement – Commission found the allegations made in the applications not able to be determined by the Commission – applications dismissed. | |||
Doyle and Ors v Melbourne Archdiocese Catholic Schools Ltd t/a MACS | ||||
C2021/7842 |
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Wilson C |
Melbourne |
18 February 2022 | ||
6 |
TERMINATION OF EMPLOYMENT – misconduct – employer policies – ss.387, 392, 394 Fair Work Act 2009 – unfair dismissal application – applicant employed by respondent in national OHS team as Victorian Manager in the insurance building services business – role required site visits to internally held companies – employed from 2 March 2020 until dismissed 27 July 2021 – dismissed for sending inappropriate messages to colleague, neglect of duties during working hours and operating and promoting his own business during work hours – in meeting called by respondent to air concerns, applicant denied he sent text messages and denied the company he had promoted by email was his own – before the Commission, applicant contended role required he work 80% away from the office and most often from his vehicle – challenged evidence linking him to text messages –respondent gave evidence that applicant was seen by employee sending messages about the time the anonymous messages were received – gave evidence of private investigator who had reviewed the pay phones and CCTV footage in areas of phones used to send the messages – private investigator's observations of applicant over period of 2 days was provided as evidence of the applicant's neglect of duties – respondent gave evidence that applicant had sent an email on 24 July 2021 to 3 regional Victorian business partners promoting a demolition company, Demotec, which was registered in the applicant's name – gave evidence that this conduct was in breach of specific term of contract of employment – gave evidence that during applicant's site visits he rarely communicated whereabouts and had to be monitored to ensure the completion of routine tasks – Commission accepted evidence that linked applicant to text messages – messages suggested to recipient that his partner, also employed by respondent, was having an affair – while not finding this met definition of serious misconduct, Commission found conduct was nevertheless serious, inappropriate, intended to cause harm to 2 employees – found the conduct was wilful and inconsistent with applicant's express and implied obligations to his employer and incompatible with his duty as an employee – observed contract of employment contained express obligation to devote time and attention during work hours to perform duties exclusively for the business – found surveillance evidence showed applicant failed to meet this contractual obligation – accepted evidence that Demotec was applicant's business – found that promoting and engaging in own business during work was breach of his contract of employment and his common law duties of fidelity and good faith [Rose v Telstra] – no employment policies other than motor vehicle and IT were tendered and therefore Commission did not include this in its consideration – while finding a valid reason for the dismissal, Commission found the applicant was not given a genuine opportunity to respond to the allegations and evidence against him under s.387(c) of the Fair Work Act – observed that an employer the size of respondent could have provided a more structured discussion and dismissal process – found dismissal was procedurally unfair – did not consider a remedy of reinstatement appropriate – based on s.392 factors, ordered compensation of one week's wages. | |||
Ronchi v Johns Lyng Group | ||||
U2021/7270 |
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Yilmaz C |
Melbourne |
16 February 2022 | ||
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