Welcome to the second edition of the Fair Work Commission’s new subscription service, the Quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
If you have any feedback about this newsletter, including suggestions for future editions, please contact firstname.lastname@example.org. You can read previous editions of the newsletter on the Commission’s website.
This section provides summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act). In this second edition of the Quarterly practitioner update, we have featured 14 decisions issued between 1 April 2015 and 30 June 2015.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
After an extensive process of submissions and hearings, the Expert Panel for annual wage reviews (the Panel) reviewed the minimum wages in modern awards and the national minimum wage (the NMW), which directly affects over 1.86 million employees reliant upon minimum rates of pay. The Panel considered both the setting of the NMW rate and whether to make any variation in respect of modern award minimum wages. The Panel took into account the minimum wages objective in s.284 of the Fair Work Act and the modern awards objective in s.134. A number of factors led to the decision to issue a lower increase than last year, including the reduction in inflation and aggregate wages growth and the lower growth in consumer prices and aggregate wages growth over the past year, which have a direct bearing on relative living standards and the needs of the low paid.
The Panel noted that the unemployment rate had grown steadily from its recent low of 4.9 per cent in March 2011, to 6.1 per cent in April 2015 however uncertainty as to the timing of a stronger non-mining investment contribution to economic growth provided a reason for some caution. Balanced against these economic considerations, there was no evidence of particular corporate stress as real unit labour costs remained at historically low levels. The principle of equal remuneration was a factor in favour of an increase in the NMW and modern award minimum wages.
The Panel determined it was appropriate to increase the NMW by 2.5 per cent. The NMW is now $656.90 per week, or $17.29 per hour; this constitutes an increase of $16.00 per week to the weekly rate or 42 cents per hour to the hourly rate. The Panel also considered it was appropriate to adjust modern award minimum wages by a moderate amount, increasing these rates by 2.5 per cent. The new rates came into operation on 1 July 2015.
At first instance, the Commission found that each of the seven applicants’ employment had been terminated due to cases of genuine redundancy. The appellants’ application for permission to appeal submitted that the first instance decision represented a statement of principle that that redeployment to casual employment may never be considered for purposes of s.389(2)(a) of the Fair Work Act.
The respondent submitted that the decision did not contain any pronouncement of any principle or general interpretation of s.389(2)(a); rather, the matter was determined on the basis of the particular facts and circumstances pertaining to the case.
The Full Bench disagreed with the appellant’s submission. It held that the Commission considered whether redeployment to casual work would have been reasonable, and made findings of fact concerning the nature of the alternative casual work, and the circumstances which lead to the appellants not being redeployed into those positions.
The appeal did not involve any challenge to those findings of fact. The Commission’s conclusions were reasonably open on the basis of the findings of fact that were made. It is difficult to characterise a transfer from permanent full-time work to sporadic and non-guaranteed casual work as redeployment for all purposes of s.389(2). The Full Bench determined that the appeal did not raise any issues of importance or general application which would attract the public interest nor did it manifest any injustice or attended by any appealable error. Permission to appeal was refused.
At first instance, the Commission found that the applicant had been unfairly dismissed. The Commission found that the applicant would only have remained in employment for a further eight weeks, at which time he would be summarily terminated. The Commission ordered a remedy of $1,281.82. The applicant appealed the decision, submitting that the amount of compensation was inadequate.
The Full Bench found the Commissions determination of the amount of compensation constituted a significant error of fact. Permission to appeal was granted; the appeal was upheld and the original order for compensation quashed. The parties were directed to file submissions on the question of compensation, specifically addressing the length of time the appellant would have remained in employment with the respondent if he had not been unfairly dismissed. The Full Bench reheard the matter on the question of compensation, finding that but for the unfair dismissal, the appellant would have remained in his employment for a period of 12 months. The Full Bench determined that compensation in the amount of $10,414.95 was appropriate.
The Commission found at first instance that the applicant had been unfairly dismissed, and ordered a remedy of $3,499.39. The applicant also made an application for costs, which was subsequently dismissed.
The appellant sought permission to appeal over the amount of the remedy and the dismissal of the application for costs. The respondent had gone into liquidation at the time the appeal was lodged, but the Supreme Court ordered that the appeal be permitted to proceed.
The Full Bench considered McCulloch and determined that the Commission had addressed each of the statutory requirements in calculating the amount of compensation. The Full Bench also found that the Commission had correctly applied the considerations under s.400 of the Fair Work Act for costs, and that the refusal to take into account costs associated with the appellant’s involvement with a Victoria Police investigation was appropriate. Permission to appeal was refused.
In this case, the applicant was dismissed prior to lodging his application for an order to stop bullying, and had also lodged an unfair dismissal application. With the consent of the parties, the anti-bullying application was held in abeyance until the unfair dismissal matter was determined. The Commission subsequently found that the applicant’s dismissal was unfair, concluding that while the applicant’s position no longer existed, the application was not a case of ‘genuine redundancy’ due to the absence of the required consultation. The applicant was awarded compensation.
Following the determination of the unfair dismissal matter, the anti-bullying application was listed for further preliminary proceedings; the potential consequences of the applicant’s dismissal and the absence of an order reinstating his employment relationship were canvassed with the parties in general terms. The employer requested that the anti-bullying application be dismissed given that the applicant was no longer in the workplace.
An applicant must be a worker when an anti-bullying application is made. The Commission found no future risk of bullying and no reasonable basis to suggest a future risk of bullying at the relevant workplace. It found that there were no reasonable prospects of an order to stop bullying being made given the requirements of Fair Work Act and no reasonable prospects of success. The anti-bullying application was dismissed.
Clause 14 of the Black Coal Mining Industry Award 2010 (the Award) provided for severance and retrenchment payments for redundant employees, with clause 14.4(c) excluding employees aged over 60 years from being eligible for a retrenchment payment. The CFMEU and APESMA sought deletion of clause 14.4(c) on the basis it was discriminatory. A complaint was originally made to Australian Human Rights Commission, who referred the matter to the President of the Commission pursuant to s.46PW(3) of the Australian Human Rights Commission Act 1986 (Cth). The President referred the matter to the Full Bench to deal with as part of the 4 yearly review process.
The award provision was originally made when a retirement age of 60 was the standard practice within the coal mining industry. Statutory provisions mandating the retirement of coal miners at age 60 have been progressively repealed and no longer apply. The Full Bench found that the clause was inconsistent with the modern awards objective and that the clause was discriminatory on the basis of age. The Full Bench found it appropriate to make a determination deleting the clause. The parties were granted liberty to apply for any further variations necessary as a consequence of the removal of the clause.
The Commission had arbitrated a dispute under the RACV Roadside Assistance Centre Enterprise Agreement 2014-2017 regarding issues related to the RACV’s decision to ‘de-annualise’ the payment of penalty rates. One of the issues concerned the amount of hours which should be deducted from the accrued leave entitlement of a shiftworker working a 21-day shift roster for each day taken off work for annual leave or personal/carer’s leave. The Commission had concluded that 7.6 hours should be deducted from the entitlement, regardless of the length of time that the shiftworker was rostered to work on the day taken as leave. The appellant contended this was an error, and that the deduction from the accrued leave entitlement should be equivalent to the duration of the shift or shifts from which the leave was taken. The length of shifts on rostered working days varied but was always in excess of 7.6 hours.
The Full Bench concluded that in the National Employment Standards, a ‘week’ of annual leave is an authorised absence from work during the working days falling in a seven day period, and a ‘day’ of leave (whether of annual or personal/carer’s leave) is an authorised absence from the working time in a 24 hour period. The Full Bench found that the practice of deducting 7.6 hours from an employee’s leave accrual balance for each day of absence, regardless of the amount of ordinary hours the employee was rostered to work on that day, was inconsistent with the agreement.
Permission to appeal was granted, the parties were given the opportunity to make further submissions concerning the proper interpretation of the National Employment Standards and the agreement.
At first instance the Commission approved the Harbour City Ferries Maritime Agreement 2014. The Australian Maritime Officers’ Union (AMOU), Maritime Union of Australia (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE) are covered by the agreement.
Approval of the agreement had been opposed by both the AMOU and AIMPE. A key ground raised by the AMOU for opposing approval of the agreement was that the notice of employee representational rights (NERR) which Harbour City Ferries (HCF) had given to employees did not comply with s.174 of the Fair Work Act. The AMOU contended that the Commission was in error in that it failed to deal with, and give reasons for her decision, to reject AMOU’s submission that the NERR did not contain a description of employees proposed to be covered by the agreement and was therefore invalid.
The Full Bench found the NERR given by HCF did not comply with each of the requirements contained in s.174(1A) as there was no description of the ‘proposed coverage’ of the agreement in the NERR, and HCF never issued a valid notice. The Full Bench decided the Commission was not able to approve the agreement and in doing so, was in error. It was in the public interest to grant permission to appeal.
The appeal was allowed and the approval of the agreement quashed. The Full Bench decided that the application for approval of the agreement be refused.
This matter relates to an application under s.510 of the Fair Work Act by the Director of Fair Work Building and Construction (the Director) to suspend the right of entry permit of the respondent for three months, and to ban the issue of further entry permits for the same period. The respondent had been ordered by White J of the Federal Court to pay a pecuniary penalty arising from a contravention of s.500. The contravention arose from a breach of fundamental and straightforward right of entry obligations.
The respondent contended that the Director lacked standing to make the application, submitting that there were no specific provisions under s.510 and no express power under s.507 for the Director to make the application. The Commission disagreed, and found that s.510 permitted an application to be made by a person with a relevant interest. The Commission considered whether a suspension would be harsh or unreasonable in the circumstances. The Director contended there was no suggestion of economic or personal hardship for the respondent if his right of entry permit was suspended. The respondent contended that the nature of the contravention as well as his personal circumstances should lead to the conclusion that a three month suspension was harsh and unreasonable in the circumstances. The respondent submitted that the contravention was very much at the lower end of the scale of contraventions in that it was a one-off, he was not the instigator, and the contravention occurred only for a matter of minutes.
The Commission held that the contravention was clear, defiant and with clear knowledge that the law would be broken by entering the premises. It found that the suspension of the right of entry permit was not harsh or unreasonable in circumstances as the respondent’s job and income were unlikely to be affected. The Commission issued an order for the suspension of the respondent’s right of entry permit for three months, and banned the issuing of further right of entry permits for the same period.
The applicant’s unfair dismissal application was dismissed at first instance because he had not named the correct employer. The unfair dismissal application was lodged by the Transport Workers’ Union of Australia on behalf of the applicant naming Centurion Transport Pty Ltd as the employer. The separation certificate named CFC Consolidated Pty Ltd as the employer. At first instance it was found that the amendment sought changes to the legal entity respondent which, if allowed, would have effectively revoked the original application and created a new application.
On appeal, the Full Bench considered whether s.586 of the Fair Work Act provided the power to amend the name of the respondent identified in the s.394 application to a different respondent. The Full Bench found the Commission was in error. The Full Bench found that s.586 did provide the power for the Commission to make the amendment sought. The amendment sought was not a revocation or setting aside of the appellant’s unfair dismissal application and would not have created a new application. The amendment would have substituted the name of the respondent but the application would have remained the same.
Permission to appeal was granted. The first instance decision and order were quashed and the amendment granted by the Full Bench.
The Full Bench emphasised, however, that it was the peculiar facts in this case which justified the granting of the application to amend the name of the respondent. The facts in other matters may not be comparable and the correct ruling may be to refuse an amendment to the name of a respondent.
In this matter, the appellants were appealing decisions of the Commission to order the production of documents made in connection with six applications for an unfair dismissal remedy. In each case, the applicants were dismissed by reason of redundancy.
The parties were in dispute as to whether the dismissals were genuine redundancies, and whether it would have been reasonable in all the circumstances for the applicants to have been redeployed within the employer’s enterprise or an associated entity. The applicants sought orders for the production of documents. The respondents objected on grounds including relevance, confidentiality, the time period in relation to which documents were sought, and that the applicants were ‘fishing’. Production of the documents was ordered on the basis that, once the documents were produced, the applicants would be required to obtain an order from the Member of the Commission allocated the applications for hearing in order to inspect the documents.
The appeal was brought by the respondents in the substantive matter against these interlocutory decisions and orders. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision. The primary proposition advanced by the appellants for permission to appeal rested on a misconceived approach as to the assessment of the relevance of documents for which an interlocutory order for production was sought. The test is whether the documents sought have an apparent relevance to the issues in the proceedings. The Full Bench found that the challenged orders clearly satisfied that test; any documents likely to demonstrate that there was work being performed by contractors which could be performed by the applicants would be of apparent relevance.
The Full Bench was not satisfied that it was in the public interest to grant permission appeal or that the appellants had advanced any discretionary ground which would justify the grant of permission to appeal. Permission to appeal was refused.
At first instance the Commission listed the applicant’s application for an unfair dismissal remedy for a determinative conference on 22 May 2015. In the preliminary telephone conference on 11 May 2015 the respondent applied and was granted permission under s.596 of the Fair Work Act to be legally represented at the determinative conference.
The appellant lodged a notice of appeal against this ex tempore decision, and sought a stay of the decision subject to an appeal. The Full Bench conducted a hearing on 21 May 2015 to consider if permission to appeal should be granted.
The Full Bench was not satisfied that it was in the public interest to grant permission to appeal. No issue of importance or general application was identified, nor was the decision at first instance disharmonious with recent decisions. The appellant’s contention that the case was not complex did not address whether the granting of permission would enable the matter to be dealt with more efficiently. It was not found that any manifest injustice or unfairness arose from the decision. Permission to appeal was refused.
This section provides summaries of a number of key Federal Court reviews of Commission decisions.
[Note: Decision subject to appeal to Full Court]
A single Federal Court Judge agreed with a Full Bench decision to uphold the validity of the AMWU’s application for a majority support determination. ResMed argued that under s.236 of the Fair Work Act the union could not validly make an application where the proposed agreement would extend to employees who do not meet its eligibility rules.
Perry J found that ResMed’s proposed interpretation of s.236 would add an additional requirement that goes beyond the language used by the legislature. Perry J found that the employee organisation is not acting in a representative capacity when it makes an application. Even if it is representing the interests of its members when it makes an application, this does not mean that it is also therefore representing the interests of other employees that may be covered by the propose agreement. ResMed’s application was dismissed.
A Full Federal Court found that a Full Bench was correct in upholding the decision of the delegate to refuse to issue an entry permit to the Assistant Branch Secretary of the Union, Mr William Tracey. The Full bench had found that Mr Tracey was not a fit and proper person to hold the entry permit for the purposes of s.512 of the Fair Work Act, as he was found to have committed offences ‘against an industrial law’. The MUA argued that ‘fitness and propriety’ is confined to fitness and propriety to ‘hold an entry permit’. It claimed that the offences therefore have no relevance.
The Full Court held that there was no error in the reasoning of either the Full Bench or the delegate in the interpretation of s.512. It found that there is no reason why the general integrity of a person applying for an entry permit should not be taken into account, including that person’s willingness to comply with any industrial law. The Full Court found jurisdictional error on the part of the delegate, and the Full Bench, in their respective construction and application of the power to impose conditions contained in s.515. The Full Bench had erroneously concluded that the power to impose conditions was enlivened only once a conclusion had been reached that a person was a fit and proper person.
The Full Court found that s.515(1) contemplated consideration of whether conditions should be imposed conjointly with consideration of whether the official for whom the permit is sought is a ‘fit and proper person to hold the entry permit’. This interpretation was preferred to the alternative construction where the Commission, having just determined that a person is a fit and proper person to hold an entry permit, should as a second step impose further conditions on the permit directed to the same considerations. The union’s application was dismissed.
Under s.156 of the Fair Work Act the Commission is required to review all modern awards every four years. All material in relation to the Review, including a detailed timetable, is available on the Commission’s website.
The Commission has listed hearings for 13 August 2015 regarding Family and domestic violence clause and Family friendly work arrangements.
Hearings in relation to a number of claims regarding penalty rates commence on 8 September 2015. Hearings are listed throughout September, October and December.
A Full Bench of the Commission issued a decision regarding the 4 yearly review of modern awards and alleged NES inconsistencies on 8 May 2015. Certain provisions in modern awards were identified as being inconsistent with the NES in the Fair Work Act. The provisions were divided into five categories:
Category 1 was referred to the Annual Leave Full Bench for hearing and determination, and category 2 was directed to be dealt with as part of the broader process established for the conduct of the review of the Textile, Clothing, Footwear and Associated Industries Award 2010.
Categories 3, 4 and 5 contained issues including:
Draft determinations for variations were published, with parties provided an opportunity to make submissions.
A Full Bench of the Commission issued a decision regarding the 4 yearly review of modern awards and annual leave on 11 June 2015. The decision dealt with matters relating to:
A standard clause was inserted into all awards for cashing out annual leave and granting leave in advance, and 51 awards will be varied regarding EFT and paid annual leave. The Full Bench sought further submissions on excessive annual leave and purchased leave.
Consideration of the payment of annual leave entitlements on termination was adjourned pending consideration of the proper construction of s.90(2) of the Fair Work Act by the Full Court of the Federal Court.
The annual close-down claim was rejected by the Full Bench. Parties who wish to pursue a claim to insert or vary close-down provisions have been invited to do so on an award-by-award basis.
The Commission prepared draft determinations varying each of the affected awards for comment.
The President has published an update on the three pilot programs currently being undertaken by the Commission. The pilot programs relate to general protections applications, enterprise agreement approvals and applications for permission to appeal.
The Commission recently commissioned independent reviews of the general protections and enterprise agreement approvals pilots; reports on these reviews are available on the Commission’s website:
These pilots form part of the Commission’s ongoing commitment to improving our public value and serve the community in the most accessible, fair and efficient manner.
The Commission welcomes any feedback on these pilot programs. All comments should be sent to email@example.com.
An updated Anti-bullying benchbook is available on the Commission’s website. The benchbook contains plain English summaries of the key principles of anti-bullying case law and how these have been applied in Commission decisions.
The updated version incorporates principles, references and case examples from recent anti-bullying decisions, and includes a flowchart of the Commission’s process.
The Appeal proceedings practice note provides a general explanation of appeal rights, and sets out the procedures followed by the Commission when listing, hearing and determining appeals.
The Fair hearings practice note provides procedural guidance and information about the conduct of hearings before the Commission, including the responsibilities of Commission Members, applicants, respondents and their representatives.
The Unfair dismissal proceedings practice note provides procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which do not settle at or which do not proceed to conciliation conducted by conciliators.
The Workplace Relations Education Series consists of three initiatives:
In collaboration with the Centre for Employment and Labour Relations Law at the University of Melbourne, the Commission hosted a lecture in Melbourne on Friday, 29 May 2015.
The lecture,‘The industrial system, discrimination & judicial method: the Australian reluctance’, was delivered by Associate Professor Anna Chapman and Professor Beth Gaze.
Recordings of this lecture and those of previous lectures events are available for viewing on our YouTube channel.
The Commission will be holding a mock hearing in Canberra on 12 August 2015 in collaboration with the Australian Labour and Employment Relations Association, ACT.
More information about the mock hearing is available on the Commission’s website.
Videos of previous mock hearings are available for viewing on our YouTube channel.
The Commission has published the latest contribution to the invited paper series from David Peetz, Professor of Employment Relations at Griffith University in the Centre for Work, Organisation and Wellbeing.
You can download this and other invited papers on the Commission’s website.
On 25–26 June the Commission hosted a conference attended by practitioners, scholars, government officials and other interested parties that focused on new research using data from the Australian Workplace Relations Study (AWRS). The conference featured research paper presentations on the themes of:
A workshop was also held on 24 June for people interested in using data from the study. PowerPoint slides presented during the conference and pre-conference workshop can be downloaded from the AWRS Conference page on the Commission’s website. Conference proceedings will soon be published and papers will be published as they are finalised by the authors.
An AWRS Data Centre has been established on the Commission’s website to allow interested parties to access and interact with AWRS data via various platforms.
The Fair Work Commission published the following amended approved forms on 23 April 2015:
Fair Work Commission President, Justice Ross, has approved amendments to application forms for right of entry and work health and safety permits. The amended forms are:
These changes came into effect on 22 May 2015, and are designed to:
You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.
If you have any feedback about this newsletter, including suggestions for future editions, please contact firstname.lastname@example.org.