Welcome to the Fair Work Commission’s 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.
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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 edition of the Quarterly practitioner update, we have featured 29 Commission decisions issued between 1 April 2016 and 30 June 2016.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The Fair Work Act requires the Expert Panel (the Panel) to conduct and complete a review of the national minimum wage (the NMW) and of minimum wages in modern awards in each financial year. The Panel must make a national minimum wage order and may set, vary or revoke modern award minimum wages. The decision directly affects over 1.86 million employees in Australia who are award reliant.
The Panel assessed the changes in the available economic and social data over the past year and considered longer-term trends. In assessing the various economic considerations, the Panel took into account both actual data and forecasts. All measures of inflation and wages growth were at historically low levels, the Panel finding wages growth was neither a source of inflationary pressure within the economy, nor a source of declining capacity for Australian firms to compete in international markets. The Panel also took into account a range of social and other considerations. The Panel found that the relative position of low-paid workers had deteriorated over the past decade, with many low-paid workers living in households with low or very low disposable incomes. Some low-paid award-reliant employee households have household incomes which places them below the poverty line, with women continuing to be over-represented among the award reliant and the low paid. The Panel found that increases in minimum wages can provide some assistance in addressing the gender pay gap.
Overall the Panel found that the general economic climate was robust, with economic circumstances providing an opportunity to improve the relative living standards of the low paid and to enable them to better meet their needs. The Panel determined it was appropriate to increase the NMW by 2.4 per cent. This constituted an increase of $15.80 per week to the weekly rate, or 41 cents per hour to the hourly rate. The NMW is now $672.70 per week, or $17.70 per hour. The Panel found that the level of increase decided upon would not lead to inflationary pressure and was highly unlikely to have any negative impact on employment; however it would mean a modest improvement in the real wages for those employees who are reliant on the NMW and modern award minimum wages. The new rates came into operation on 1 July 2016.
This application for an unfair dismissal remedy involved a dispute over whether the application was lodged outside the 21 day statutory timeframe. In the employer response form the respondent contended that the applicant was notified of her dismissal on 7 October 2015, however in written submissions the respondent submitted that the applicant was aware of her dismissal on 30 September 2015. The applicant submitted that she only received correspondence advising of her dismissal on 7 October 2015.
At the hearing the respondent acknowledged that it had originally cited 7 October 2015 as the termination date, but stated that this had been done in error. The material before the Commission indicated that the respondent’s letter of 25 September 2015 did not state that the applicant’s employment had been terminated; it advised the applicant that her employment would be terminated if she did not provide the required medical certificates by 29 September 2015.
The Commission found that the applicant only received the letter on 30 September 2015, though the respondent had previously requested the medical certificates. The applicant was not advised she had been dismissed until she received the email of 7 October 2015. The Commission held that the effective date of dismissal was 7 October 2015, and the unfair dismissal application was therefore lodged within the 21 day statutory timeframe. The respondent’s jurisdictional objection was dismissed and the application listed for conference.
In this matter the applicant had been dismissed from his position as a chef. The matter had been the subject of the Commission’s usual dispute resolution processes, including a conference on 14 January 2016. At the conference, terms of settlement (the Deed) were discussed. The applicant was sent a copy of the Deed by email, which included a settlement of the matter for $1000, directions about execution of the Deed and included a notice of discontinuance. The applicant signed neither the Deed nor the notice of discontinuance, however the respondent paid the applicant the agreed amount. Subsequently, the applicant indicated he would settle the matter for $3000, if not he then wished for the matter to proceed to a hearing.
The respondent brought an application seeking to have the applicant’s application dismissed on the grounds that the applicant had entered into a binding settlement agreement. The key issue before the Commission was whether the parties intended to be bound by a verbal agreement reached during the conference on 14 January 2016, or whether the parties intended for the agreement to be put into writing and signed.
The Commission considered Masters v Cameron which states that whether there is a binding agreement or not depends upon the intention disclosed by the language the parties have used. The Commission held that this was not a case in which the parties agreed that the settlement would only be binding once it had been documented formally and signed. The Commission found that the applicant had entered into a binding settlement agreement orally on 14 January 2016 and dismissed the unfair dismissal application.
The appellant was dismissed after misuse of a company fuel card. The Commission found at first instance that the respondent had denied the appellant procedural fairness and held that the dismissal was unfair. The appellant was awarded compensation of four weeks’ pay plus superannuation. The appellant appealed the assessment of compensation, questioning whether the compensation assessment addressed the criteria under s.392 of the Fair Work Act. The Full Bench found that the Commission had miscarried its discretion by failing to consider the factors in s.392. The appeal was allowed on that ground and the compensation order at first instance quashed.
The Full Bench re-exercised discretion by reference to each of the factors in s.392, relying on the evidence before the Commission at first instance. The Full Bench considered the period of time the appellant would have remained employed by the respondent, or would have likely remained employed with the respondent, had he not been dismissed. The Full Bench found that the applicant’s employment would have continued for a further three weeks. The Full Bench considered the remuneration earned by the appellant and the income reasonably likely to be earned, and also found that the appellant took steps to mitigate the loss of his employment. The Full Bench held that the conduct which was the basis for the finding of a valid reason for termination could be characterised as misconduct, and that any amount of compensation to be paid should be reduced by 50% by reason of that misconduct. The Full Bench decided to award no compensation.
In this unfair dismissal case, the respondent claimed that the applicant’s annual rate of earnings exceeded the high income threshold. The applicant conceded that his salary did exceed the high income threshold, but claimed that his employment was within the definition of a Commercial Traveller covered by the Commercial Sales Award 2010.
The Commission took into consideration the ‘principle purpose test’ from Carpenter in determining that the applicant was principally employed in a managerial capacity, and therefore was not covered by the award when employed by the respondent. The Commission determined that the applicant was not a person protected from unfair dismissal. The respondent’s jurisdictional objection was upheld and the unfair dismissal application dismissed.
The applicant lodged his unfair dismissal application 12 days after the 21 day statutory time limit. The applicant sought assistance from his union after the dismissal but claimed he did not receive adequate help, and as a result he lodged the application himself. The reasons given for the delay were that his father in law’s illness and subsequent death, in combination with his wife’s medical treatment, was traumatic for him.
The Commission found that whilst there was a reasonable explanation for delay, the applicant’s claim that his dismissal was not a genuine redundancy was unlikely to succeed. There was no dispute that the respondent had not employed anyone to do the applicant’s job and that his tasks were being performed by other employees. The Commission found that the merits of the application weighed against finding exceptional circumstances. The application for extension of time was dismissed.
This matter involved an application for costs against the respondent and the respondent’s legal representative in relation to an unfair dismissal application in which the applicant had been successful. The application for costs against the respondent’s legal representative was dismissed however the Commission was satisfied that the respondent caused costs to be incurred by the applicant because of an unreasonable act of the respondent in connection with the conduct or continuation of the matter.
The Commission found it appropriate in circumstances where the respondent responded to the application for an unfair dismissal remedy on a false and unreasonable basis, and thereby exposed the applicant to unnecessary costs, that the respondent pay costs to the applicant on an indemnity costs basis. The applicant produced and filed details of costs as per the Commission’s directions.
The respondent agreed to pay most of the costs claimed by the applicant, amounting to $86,170.00 plus personal costs of $1186.56 as a gesture of good faith, however the respondent opposed the application for costs incurred prior to the unfair dismissal proceedings, underpayment of remuneration and back pay, interest and exemplary damages. Exemplary damages could not be awarded because the Commission is not a court referred to in s.47 of the Protected Disclosure Act 2012 (Vic). The Commission determined that no interest, and no costs for underpayment of remuneration or back pay could be awarded as the applicant had failed to establish a basis for the claim. All costs relating to the pre-dismissal disputation were rejected and the respondent was ordered to pay costs of $87,356.56.
The applicant in this unfair dismissal matter was dismissed after testing positive at work for drugs. The applicant attended a medical practitioner immediately after the test was administered at work and the medical practitioner took a urine sample from the applicant which was sent for testing. The test apparently returned a negative result, showing no traces of any drugs detected in the urine sample tested, which the applicant attached to his witness statement. At the hearing, the medical practitioner gave evidence that the applicant had manipulated the results.
The Commission was satisfied that the applicant had knowingly attached a drug test result to his witness statement which he knew to be false, and deliberately gave false evidence under oath during the hearing regarding the drug test facilitated by the medical practitioner. The Commission was of the view that the applicant caused all of the costs of the proceedings by making an application to the Commission and maintaining it until it was discontinued. The applicant was ordered to pay costs of $18,618.31.
The respondent in this unfair dismissal matter objected to the application on the bases that the applicant had made another claim relative to his employment, and that that it had only one employee at the time of the dismissal, and that the applicant had not served the minimum employment period.
The Commission found that the applicant made an application to the Fair Work Ombudsman for underpayment which did not represent an impediment to the pursuit of his unfair dismissal application. At the time of dismissal the applicant was the only employee engaged by the respondent, however there was a dispute over whether another entity, which operated in South Africa, should be regarded as an associated entity. The South African corporation employed 21 people at the time of the applicant’s dismissal.
The Commission considered the definition of ‘associated entity’ in s.50AAA of the Corporations Act 2001 (Cth) (the Corporations Act). The respondent sold garden products, some of which were apparently made by the South African corporation. Significantly, the evidence of the respondent confirmed that he and his wife controlled both corporations in a manner consistent with s.50AAA(7) of the Corporations Act. The Commission found that the Corporations Act required that the employees of the related, but overseas operated corporation be taken into account. As a result the respondent did not meet the definition of a small business and the Commission was satisfied that the applicant had exceeded the requisite minimum employment period. The matter was referred for conciliation.
At first instance the Commission found that the employee’s earnings did not exceed the high income threshold for the purposes of determining whether the employee was protected from unfair dismissal. The appellant submitted that the Commission had erred in determining that life insurance premiums paid by the appellant were not a part of the employee’s earnings. The Full Bench granted permission to appeal as the appeal raised an issue concerning the jurisdiction of the Commission that had not previously been the subject of a Full Bench decision.
The Full Bench was satisfied that the Commission had erred in finding that the life insurance premiums were not ‘amounts applied or dealt with in any way on the employee’s behalf’ as set out in the definition of earnings in s.332 of the Fair Work Act. The Full Bench found that the appellant paid the premiums for the benefit of the employee and these should be taken into account when calculating the employee’s earnings. The Full Bench determined that the employee earned more than the high income threshold. The appeal was upheld and the decision at first instance quashed. The employee was not protected from unfair dismissal and the unfair dismissal application was dismissed.
The Commission received applications by 41 applicants to deal with disputes against the respondent under the Atwood Oceanics Enterprise Agreement 2013 (PDF). The respondent asserted that the Commission must determine each application separately and that the required dispute settlement procedures in the agreement had not been followed.
The respondent’s parent company had decided that the Atwood Falcon, a Mobile Offshore Drilling Unit was to be taken out of service. The respondent communicated the decision to terminate their employment on the grounds of redundancy to all affected employees. The applicants did not challenge the fact that their employment was terminated but sought the meaning and application of certain provisions of the agreement.
The Commission gave consideration to those applications filed after the applicants had ceased employment, finding that from the date the dismissal took effect, the terms and conditions of the agreement ceased to apply to those applicants. The dispute settlement procedure clause presupposed or implied that during the resolution of the dispute the agreement and contract of employment remain in existence and the parties will ‘continue’ to work in accordance with those provisions. The Commission held that it had no jurisdiction to deal with the applications made by persons after the date of their dismissal.
On consideration of the applications filed prior to the applicant ceasing employment the Commission found that the applicants raised a query in relation to the matter, not a dispute for the purposes of the dispute settlement procedure. The Commission found that the steps of the dispute settlement procedure were not complied with before the applications were referred to the Commission. The Commission further found that it had no jurisdiction to deal with the applications, which were dismissed as a result.
A dispute was lodged in relation to the terms of the Mt Arthur Coal Enterprise Agreement 2011 (PDF). An employee received a final warning for deliberately driving trucks at slow speed on 6 and 9 October 2015 because the company would not agree to the employees’ claims in ongoing enterprise agreement negotiations. The employee admitted to driving more slowly than other drivers but said that it was to keep the dust levels down at the mine rather than as a response to the ongoing enterprise agreement negotiations.
The respondent contended that the Commission did not have the jurisdiction to arbitrate the dispute because it was being asked to exercise judicial powers, not arbitral powers. The Commission rejected the jurisdiction argument. As a private arbitrator the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the agreement applies. The Commission will exercise powers of private arbitration that the parties to the agreement had agreed to confer on the Commission, not judicial power.
The Commission found that the employee was motivated to drive slowly because the respondent would not agree to the employees’ claims in the ongoing enterprise agreement negotiations. The Commission held that the conduct of the employee constituted unlawful industrial action and that the respondent was entitled to recover the wages paid to the employee in respect of his work on 6 and 9 October 2015.
The Commission received an application to deal with a dispute arising under the United Group Resources Pty Ltd Project Delivery and Asset Services Workplace Agreement 2009 (PDF). The applicant asserted that he was entitled to a full weeks’ pay as he was wrongly given notice of termination concurrently with his R&R leave. The respondent raised a jurisdictional objection that the applicant had not been an employee since 2013 and the subject matter of the application had not been raised with the respondent until February 2016.
The Commission held that it does not have jurisdiction to deal with a dispute in relation to people who are no longer covered by the relevant agreement. The applicant had no right under the agreement to bring a dispute to the Commission. The Commission also noted that relief through an ‘Order to Pay’ would involve enforcement of the agreement, which was beyond the power of the Commission, and that only the Federal Court or Federal Circuit Court were empowered to make such an order. The application was dismissed.
At first instance the Commission made an interim order regarding an application under s.418 of the Fair Work Act for an order that industrial action, by employees or employers, stop at Fredon Industries Pty Ltd (Fredon). The order required that a scheduled 48-hour stoppage of work not proceed. Following the raising of an ‘apprentice clause’ claim in bargaining for a new enterprise agreement, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU) gave written notice to Fredon of the 48-hour strike. Fredon made the application to the Commission claiming the strike would not be protected industrial action because it was not an employee claim action as defined in the Fair Work Act. Fredon contended the ‘apprentice clause’ was not a claim that was about, or could reasonably be believed to be about, permitted matters.
The CEPU appealed the decision at first instance, submitting that the decision manifested appealable error in seven respects. The Full Bench was satisfied of appealable error in at least two respects: firstly, by not disclosing any consideration as to whether making an interim order would be contrary to the public interest, there was a jurisdictional error in that the decision failed to give effect to terms of s.420(3); and secondly, the Full Bench held that the CEPU (and Fredon) were denied procedural fairness, due to no indication being given as to the possibility the application could not be determined in a two-day period. The Full Bench held that all of the objective circumstances strongly indicated it would be heard and determined within a two-day period, and as parties were denied the opportunity to make submissions about whether an interim order should be made and if making one would be contrary to the public interest, this constituted a further jurisdictional error.
The Full Bench was satisfied that the interim order made by the Commission was spent in that the industrial action the subject of the order was now long past, nonetheless it was an order that was demonstrably beyond power. The appeal was upheld and the decision and interim order were quashed.
Essential Energy made an application to the Commission for the suspension of protected industrial action taken by its employees. Essential Energy’s electricity distribution network is Australia’s largest electricity network, delivering network services to more than 844,000 homes and businesses in 1500 regional, rural and remote communities. Essential Energy also provides water and sewerage services to approximately 20,000 customers in far west New South Wales. Several rounds of protected industrial action had already been taken by employees, and the union had given notice of planned further industrial action when the application was made.
The Commission held that the proposed industrial action threatened to endanger the life, the personal safety, the health and the welfare of a part of the population of New South Wales. In considering whether to suspend or terminate the industrial action, the Commission had regard to relevant factors including:
The parties had expressed a preference for a negotiated outcome, however negotiations had been ongoing for almost one year, which included one week of intensive conciliation with the Commission, and the parties were still far apart on some issues, and moving further apart. The Commission held that if the industrial action were only suspended it was likely there would be further industrial action once the suspension was lifted that could once again threaten the welfare of the broader population. The Commission ordered the termination of the threatened protected industrial action.
In this matter the applicant (the AMWU) applied for a bargaining order alleging that the respondent (Wedderburn) had breached its good faith bargaining obligations. The AMWU alleged that the disciplinary action and dismissal of an employee who was a member of the AMWU, a shop steward and a part of the bargaining team (Mr Caspersz) was capricious and unfair conduct which undermined freedom of association or collective bargaining. The AMWU sought reinstatement of Mr Caspersz. Wedderburn denied the allegations and said that both the disciplinary action taken against Mr Caspersz, and the dismissal of Mr Caspersz, were legitimate and bore no relationship to bargaining or his role as a shop steward or his role in bargaining.
In September 2015, AMWU members employed by Wedderburn took protected industrial action. Wedderburn made allegations of misconduct against Mr Caspersz arising from his conduct on the picket line and Mr Caspersz was issued with a formal warning and advised that if there were any further instance of him failing to comply with directions his employment would be terminated. In February 2016 there was a ban on performing overtime, as a result Mr Caspersz did not finish a job at a site in Emerald because of the overtime bans. Mr Caspersz’s employment was terminated on 17 March 2016 because he had failed to perform the allotted work during the available normal working hours.
The AMWU submitted that the decision to terminate Mr Casperz’s employment was capricious. The Commission was satisfied that there was an arguable case that the decision to terminate Mr Caspersz’s employment was unfair or capricious. The Commission found that the AMWU had an arguable case that Mr Caspersz’s conduct was protected and the decision to terminate someone’s employment, because they took protected industrial action, is not only unfair, it is a contravention of the general protections provisions of the Fair Work Act. Further, the Commission found an arguable case that in making the decision to terminate Mr Caspersz, Wedderburn was motivated by its belief that Mr Caspersz was responsible for the industrial action being taken by the employees.
The Commission was satisfied that terminating a shop steward, who had been part of the bargaining team since bargaining commenced, and who played an important role in ensuring the views of the employees were conveyed to the union, would undermine collective bargaining. The Commission was also satisfied that there was an arguable case that such conduct would undermine freedom of association and the balance of convenience weighed in favour of reinstating Mr Caspersz. The Commission ordered that Mr Caspersz be reinstated to the position he occupied prior to the termination of his employment, or if that position was not available, to another position on terms and conditions no less favourable.
The Construction, Forestry, Mining and Energy Union (the CFMEU) was a bargaining representative of a number of employees to be covered by a proposed enterprise agreement that would cover all persons employed by AGL Loy Yang Pty Ltd (AGL Loy Yang) and AGL Energy Limited (AGL Energy), or a related body corporate of AGL Energy. AGL Loy Yang had agreed to bargain with the CFMEU. After over six months of bargaining the CFMEU applied for a protected action ballot order (PABO). Both AGL Loy Yang and AGL Energy opposed the grant of a PABO on grounds including that the CFMEU could not apply for a PABO because there had not been a notification time in relation to the proposed enterprise agreement. At the time the CFMEU applied for a PABO there was no agreement by AGL Energy to bargain. The CFMEU sought to amend the application by altering the identity of the group of employees to be balloted so as to limit that group to employees of AGL Loy Yang. AGL Loy Yang submitted that there had been no notification time for the proposed agreement. The Full Bench held that the CFMEU had proposed an agreement with more than one employer at the time that it applied for a PABO, and found that because one of the employers had not agreed to or initiated bargaining there was no valid application for a PABO. The application for a PABO was dismissed.
The appellant in this matter was granted permission to appeal against the decision approving the Coles Store Team Enterprise Agreement 2014–2017 (PDF). The Full Bench considered evidence in respect of the better-off overall test. The agreement provided a higher hourly rate but lower penalty rates than the relevant modern award. The Full Bench determined that employees who work primarily at times that attract lower penalties than the award were open to a potentially significant loss, and that potential loss was most likely to impact part-time and casual employees. The Full Bench considered whether other benefits under the agreement could make up for the deficit, however the value of some benefits was not easily quantifiable. The Full Bench was not satisfied that employees would be better off overall under the agreement. Coles were given the opportunity to provide undertakings to remedy the deficit identified by the Full Bench. Coles did not provide undertakings and an order was issued allowing the appeal and quashing the decision at first instance which approved the agreement.
An appeal was lodged against the inclusion of the Construction, Forestry, Mining and Energy Union (the CFMEU) as one of the employee organisations covered by the agreement in the decision approving the Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015 (PDF). The appellant submitted that the Commission had erred on the basis that the CFMEU did not give the appellant written notice stating that they wanted the agreement to cover it. The Full Bench considered whether the Commission had erred by including the CFMEU, finding that the appellant had been put on notice that the CFMEU wished to be covered by the agreement, and had utilised its opportunity to object to the CFMEU being covered on the basis that it was not a bargaining representative. The Full Bench held that upon receiving the application, the Commission listed the matter for eHearing and advised parties that if they wished to be heard, they should contact the Commission prior to the eHearing.
The Full Bench considered whether it was in the public interest to grant permission to appeal, finding the appeal raised a question of jurisdiction as to whether the Commission exceeded its jurisdiction in noting coverage of the CFMEU in circumstances where the jurisdictional pre-condition had not been met. The Full Bench determined that the appeal also raised a question as to whether the Full Bench decision in RotoMetrics had been correctly decided and should be applied. The Full Bench found the reconsideration of a Full Bench authority was ‘a serious step to be rarely taken and only taken in relation to a decision concerning statutory construction circumstances where the decision is patently in error or has produced unintended or irrational consequences’.
The Full Bench found it was in the public interest to grant permission to appeal and found that there were cogent reasons to reconsider the authority in RotoMetrics and apply a construction of s.183(2), as a natural justice requirement directed to affording the employer an opportunity to resist coverage of an organisation on the substantive basis that the organisation was not a bargaining representative, as required by s.183(1) of the Fair Work Act. The Full Bench found that an appeal to remove an employee organisation from a s.201 note in an approval decision would only arise where the Commission was not satisfied that an organisation was not a bargaining representative. The appeal was dismissed.
The CFMEU then made an application for costs on the basis that the appeal was brought without reasonable cause and/or its prosecution had no reasonable prospects of success under s.611(a) and/or (b) of the Fair Work Act. The Full Bench held that the appellant could have reasonably presumed its appeal had a significant prospect of success given the decision in RotoMetrics and the Commission’s longstanding approach to the reconsideration of Full Bench decisions. In circumstances where the decision to dismiss the appeal required the taking of the rare and unusual step of reconsidering an earlier Full Bench authority, the Full Bench was not persuaded that the appeal was instituted without reasonable cause or that the prosecution of the appeal had no reasonable prospects of success. The application for a costs order was dismissed.
At first instance the Commission refused to approve the McDermott Australia Pty Ltd Ichthys Project Offshore Construction Agreement 2016 (PDF) on the basis that casual employees who voted in favour of approving the agreement were not engaged in work, or being paid at time of voting, and were therefore not employed. The Commission was also not satisfied that the application was accompanied by a properly signed copy of the agreement as the signatory was not a properly appointed employee representative.
The appellant appealed on the basis that the Commission had erred by concluding that casual employees were not employed at the time, submitting that employees to be balloted should include those who were usually employed, or likely to be engaged. The Full Bench found that because the contingent of casual employees had been hired and trained for the project, and none had been terminated or indicated they were unwilling to work on the project, they should be included in the ballot. The Full Bench was also satisfied that the signature requirements had been met, as the agreement was signed by an employee who was to be covered by the agreement. Permission to appeal was granted, the appeal was upheld and the agreement approved.
In this matter the Construction, Forestry, Mining and Energy Union (the CFMEU) sought permission to appeal a decision of the General Manager of the Commission. The Director of the Fair Work Building Industry Inspectorate (the FWBII) requested that the Commission issue certificates in relation to two named individuals confirming their membership of the CFMEU under s.348 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act). The General Manager issued a decision allowing two staff of the Commission to inspect the CFMEU’s membership records pursuant to s.235(1) of the RO Act. The purpose of the authorisation was to establish whether particular individuals were members of the CFMEU at certain times.
The CFMEU objected on the basis that it did not consider the purported exercise of power under ss.235 and 348 proper or permissible, claiming that the provisions were designed to facilitate the inspection of records and issuing of certificates to ensure compliance by registered organisations, not prosecutions by the FWBII. The Full Bench rejected the assertion that the power under the provisions was limited in the way suggested by the CFMEU. The Full Bench granted permission to appeal on the basis that the appeal was reasonably arguable and raised issues both novel and likely to have general and ongoing implications.
The Full Bench looked at the legislative history of s.235, finding the power of the Industrial Registrar to authorise inspection could validly be utilised to facilitate the exercise of any powers and rights conferred by the Industrial Relations Act 1988 (Cth), noting that the Industrial Relations Act contained the entire scheme of federal legislation concerning industrial relations, so that inspection could be authorised for any purpose of that scheme. The Full Bench rejected that the division of the Fair Work Act and the RO Act into separate acts had the effect of narrowing the power conferred by s.235(1), the Fair Work Act and the RO Act remain inter-related and were co-dependent.
The Full Bench held that the discretionary power conferred on the General Manager could validly be exercised to facilitate the enforcement of obligations under the Fair Work Act. The Full Bench found that the legislative history also supported the conclusion that the implicit power in s.348 of the RO Act to issue a certificate extended to purposes arising from the Fair Work Act and the RO Act. The context supported the interpretation of s.348 where the proper purpose of the power to issue a certificate was to facilitate proof of organisational membership before a court or in a proceeding.
The Full Bench distinguished the power to issue a certificate in this respect from the power to issue a certificate for the purposes of an investigation by a regulatory authority. The Full Bench held that there was no power under s.348 to issue a certificate concerning membership of an organisation merely as an aid to an investigation by a regulatory authority and found that the power in s.235(1) could not be validly exercised with the object of issuing a s.348 certificate for that purpose. The appeal was upheld and the decision of the General Manager quashed.
In the decision at first instance the Commission refused the appellant the opportunity to be heard in relation to applications by each of the respondents to have their enterprise agreements approved. The appellant contended that the Commission erred as a matter of law in failing to make the order sought by the appellant.
The Full Bench considered and distinguished Collinsville as the present case had employees of the respondent who were members of the appellant and who were covered by enterprise agreements which would cease to apply to those employees if the new enterprise agreements were to be approved. The Full Bench held that this point of distinction from Collinsville raised issues of importance and general application such that the public interest was enlivened. Permission to appeal was granted.
The appellant was of the opinion that a right to be heard existed, in relation to an application for approval of an enterprise agreement, in circumstances where the union and its members were covered by, and the union allegedly has rights under, an existing enterprise agreement which would cease to apply if a new enterprise agreement was approved. The Full Bench found that the appellant was not a person whose rights, interests or legitimate expectations would be directly affected by any decision to approve the new enterprise agreements. The appellant may be affected, indirectly or consequentially, by a decision to approve new enterprise agreements, but such an impact was not sufficient to give the appellant right to be heard in the application for the new enterprise agreements. The appeal was dismissed.
In this case the appellant sought to appeal a decision dismissing their application for unfair dismissal. The appeal was lodged 66 days outside of the 21 day time period prescribed for instituting appeals. The appellant submitted it had filed an application for judicial review in the Federal Circuit Court following the issuing of the decision at first instance. During a directions hearing of the appellant’s judicial review application, the Court concluded that it did not have jurisdiction to deal with the application and dismissed it. The appellant said that the making of the application to the Court was a matter of practitioner error and not due to any delay attributable to him.
Evidence was submitted of correspondence between the respondent’s solicitors and appellant’s representative regarding the appropriate forum for appeal, the appellant did not take up the suggestion regarding the proper appeal jurisdiction. The Full Bench held that the appellant was aware of his right to lodge an appeal pursuant to s.604 of the Fair Work Act, however chose not to pursue this at the time. The Full Bench was not persuaded that the appellant was blameless and inactive in the circumstances, or that satisfactory explanation for the significant period of delay was provided.
The Full Bench was not persuaded that the arguments of the appellant demonstrated appealable error. The Full Bench considered that if the time were extended, there was still a real likelihood that permission to appeal would not be granted, having regard to both the grounds of the appeal and the appellant’s public interest arguments. The interests of justice did not favour an extension of time for the appellant to institute an appeal. The application for an extension of time to institute the appeal was refused and the appeal dismissed.
At first instance the Commission dismissed an application that the Commission Member recuse himself from determining an application by the LCR Group Pty Ltd (the LCR Group) under s.210 of the Fair Work Act for approval of a variation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 on the ground that there was a reasonable apprehension of bias.
Permission to appeal was granted as the matter raised important issues concerning the practice and procedure of the Commission regarding communication with parties. The application to vary involved ex parte communications between the Commission Member and the representative for the LCR Group. The Full Bench applied the two-step apprehension of bias principle in Ebner, firstly that there must be identification of what factors might lead a judge to decide a question other than by on the merits, and then, having identified the factors, establish a logical connection between those factors and the fear the judge might not apply proper judicial merit.
The Full Bench held that unilateral communication by a party with a judge’s chambers could give rise to a reasonable apprehension of bias, however the Full Bench was not satisfied that a fair minded observer might perceive a logical connection between the communications in this case, and a possibility that the Commission would not bring an impartial mind. The Full Bench found no error in the Commission Member’s decision not to recuse himself. The appeal was dismissed.
An application was received to review an appeal under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act). At first instance the Commission determined that a historical assessment was the appropriate method of determining the application from the appellant to seek revocation of NOPSEMA’s decision to issue an improvement notice. The Commission adopted the questions for determination that had been proposed by NOPSEMA.
The appellant sought permission to appeal on the basis that it asserted the decision applied an incorrect approach to the matter. The appellant advised that it sought to challenge the improvement notice so as to protect its reputation with particular regard to future tendering arrangements. The Full Bench considered the nature of an improvement notice under the OPGGS Act and the nature of the appeal contemplated by the OPGGS Act establish that this capacity to affirm, vary or revoke an improvement notice must be applied with regard to the fundamental purpose of that notice. At first instance the parties requested that the Commission decide between an historical or current approach, the Full Bench held that such a simple election misrepresented the nature of the Commission’s task under the OPGGS Act. Whilst the primary issue to be determined by the Commission was whether the improvement notice should have been issued at that time, it may also, in appropriate circumstances, be necessary for the Commission to determine whether an improvement notice should apply at the time it makes a decision.
Whilst the Full Bench agreed that the Commission correctly identified the major issue to be determined in the appeal, the decision did not fully take into account the extent to which a contemporary assessment of the matter may lead to a decision to review the improvement notice as part of its ultimate disposition. The Full Bench was unable to agree with the entirety of the Commission’s conclusion at first instance, finding it was important that the approach to an appeal of this nature was founded on temporal considerations consistent with the relevant legislation. This raised matters of public interest and permission to appeal was granted. The Full Bench found the conclusion in the decision at first instance precluded the Commission from reaching a contemporary view about an improvement notice, having assessed its historical appropriateness. The Full Bench held that this reflected error. The appeal was upheld and the application was referred back to the Commission to determine in accordance with this decision.
At first instance the Commission dismissed the appellant’s application for relief from unfair dismissal finding he had engaged in sexual harassment of a female co-worker while under the influence of alcohol and cannabis. The Commission was not satisfied by the appellant’s claims that his drink had been spiked and was satisfied that the dismissal was not harsh, unjust or unreasonable.
The appellant appealed on the basis that the Commission failed to consider extensive expert evidence and deal with the critical argument that the appellant’s symptoms were wholly consistent with drink-spiking represented a departure from the proper principles to be applied in decision-making. The Full Bench was satisfied that the Commission had duly considered all relevant evidence and no appealable error was identified. Permission to appeal was refused and the appeal dismissed.
The appellant applied for a review of the Full Bench decision to the Federal Court. The Court concluded that there was no jurisdictional error in the decision at first instance, however found that the Full Bench failed to evaluate whether there was an arguable case of appealable error, and exceeded its jurisdiction by purporting to deal with the merits of the appeal without a proper hearing. The Court quashed the decision of the Full Bench and granted a writ of mandamus requiring the Commission to ‘deal again, according to law, with the notice of appeal’.
A new Full Bench was constituted to deal with the appeal. The Full Bench considered House v The King. For an appeal to be successful, an error in the exercising of the discretion afforded to the decision maker must be established. The Full Bench concluded that, rather than having not considered the expert evidence, the better view was that the Commission at first instance concluded that it did not merit discussion. The Full Bench was of the view that contradictory expert evidence was of little assistance, and that the suggestion of drink spiking was speculative and of limited weight. The Full Bench was not satisfied that an error of the sort contemplated by House v The King had been demonstrated. Permission to appeal was refused and the appeal dismissed.
At first instance the Commission noted no opposition had been received to an application, made by an employee of the appellant, to terminate the United Security Enterprises – Employee Collective Agreement 2012–2014 (PDF) and the agreement was terminated. The appellant appealed on the basis it had not been properly served with the application, and that it did not become aware of the proceedings until after the decision was issued. The appellant submitted that its views as the employer were not taken into account as required by s.226(b)(i) of the Fair Work Act.
The Full Bench was satisfied that incorrect email addresses were used for service, and that service was not affected in accordance with the Fair Work Commission Rules. The failure to properly affect service meant the appellant was denied the opportunity to express its views about the application, and the appellant unable to provide a copy of the application to employees covered by agreement, thereby depriving employees of an opportunity to express their views about the application. Permission to appeal was granted and the appeal upheld, and the decision at first instance was quashed. The application to terminate the agreement was remitted for re-determination.
Note: The applicant later withdrew the application to terminate the agreement.
This section provides summaries of a number of Federal Court reviews of Commission decisions.
A Full Federal Court has upheld an interlocutory application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to dismiss the application of the employer on the basis that the application sought public law remedies where none were available. The application stemmed from a matter before the Commission to deal with a dispute arising under an agreement. The terms of the dispute resolution clause in the agreement allowed for the parties to apply to the Commission to exercise its arbitration powers to resolve the matter after certain conditions were met. The Federal Court agreed with the earlier decision of a Full Court in AMWU v ALS Industrial Australia and held that the tribunal’s power to resolve such disputes arises from the agreement to arbitrate. The Court held that, to the extent that this power to arbitrate derives from the agreement itself, the tribunal is not exercising government powers and therefore cannot be reviewed through the issue of constitutional writs. The employer’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 4 yearly review, including a detailed timetable, is available on the Commission’s website. As part of the 4 yearly review, the Commission is redrafting all modern awards to make them more consistent and easier for employers and employees to use. A dedicated page of each of the awards under review has been created.
As a part of the Annual Wage Review 2015–16:
As a part of the 4 yearly review of modern awards the Commission is dealing with a number of applications to vary penalty rates in various awards in the hospitality and retail sectors.
The final hearings in the Penalty rates case were held on 11–15 April and final submissions in this matter were received on 21 June 2016. Permission was refused for an extension of time to lodge a small number of public contributions. The final number of public contributions published as a result of the advertising process was 5845. Additional confidential contributions were received but not published.
In decisions in June and September 2015 the Commission determined model clauses in respect of:
In May 2016 the Full Bench focused on whether it was appropriate to vary particular modern awards to insert the model terms. All interested parties were provided with an opportunity to make submissions and adduce evidence. The Full Bench proposed to vary a number of modern awards to insert the various annual leave model terms determined in the June and September 2015 decisions.
The May 2016 decision also proposed some plain language redrafting of three of the model terms:
The changes proposed were intended to make these terms easier to understand; they were not intended to change the substantive effect of any of the model terms after they underwent plain language redrafting.
Interested parties were provided with an opportunity to notify the Commission if they wished to contest the Full Bench’s provisional views in respect of any of these matters. No notifications were received so as a result the Full Bench gave effect to the provisionally expressed views. In June 2016 draft determinations varying modern awards were published on the Commission website.
The July 2015 Award Flexibility decision dealt with a number of claims to vary certain modern awards in respect of time off in lieu of payment for overtime (TOIL) and make up time. Interested parties were provided with the opportunity to make submissions in relation to content of provisional model TOIL term and the proposition that model TOIL term be inserted in 113 modern awards.
A decision issued in October 2015 [ FWCFB 6847] dealt with submissions concerning the content of a model TOIL term. Submissions received by the Commission fall into two broad categories: general submissions and award specific submissions.
In April the Commission issued a decision [ FWCFB 2602] dealing with one aspect of the general submissions and some other issues relating to the form and content of the October 2015 model TOIL term. The model TOIL term was re-drafted in plain language (the April 2016 model TOIL term). The Full Bench found that 30 modern awards which contain overtime provisions do not presently contain a TOIL term, however four of those awards are the subject of award specific submissions. The Full Bench was satisfied that variation of the remaining 26 modern awards to incorporate the April 2016 model TOIL term was necessary to ensure that each of these modern awards provides a fair and relevant minimum safety net. Draft determinations have been published and interested parties provided an opportunity to comment.
An issues paper (PDF) was published on 11 April 2016 which outlined the various claims being dealt with as part of this multi-faceted matter. The paper posed 36 questions for the parties to consider when preparing their submissions. The Commission received 73 submissions and items of correspondence during the quarter in relation to this casual and part-time employment.
A conference was held regarding issues arising from the introduction of the National Disability Insurance Scheme and how this may affect employers and employees under the Social, Community, Home Care and Disability Services Award 2010, the Aged Care Award 2010 and the Nurses Award 2010.
The Commission issued statements on:
In a decision in May 2016 [ FWC 2837] the Commission proposed to prepare plain language drafts of award-specific clauses in a number of modern awards. The four modern awards selected for redrafting were the:
Consideration will be given to preparing plain language drafts for further modern awards later in 2016 and early 2017.
During the quarter six new modern enterprise awards were issued:
The Commission has recently published updated versions of the:
The benchbooks are plain English guides to the principles of workplace relations law under the Fair Work Act and how these have been applied in Commission decisions. The updated versions incorporate added subject areas and recent case law, and are currently available as downloadable PDFs (online versions of the updated benchbooks are under development).
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 Orders to attend and orders to produce practice note provides procedural guidance in relation to orders to attend and orders to produce. It provides a general explanation of the process for requesting such orders and the procedures followed by the Commission in making and giving effect to these orders or declining to make orders.
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.
As part of the Fair Work Commission's function to promote cooperative and productive workplace relations, the Commission, in association with the Industrial Relations Society (NSW), will be conducting 2 practitioner-focused workshops in Sydney in July and September 2016.
The workshops will be interactive and practical with a focus on workplace dispute resolution and enterprise bargaining.
The first workshop was held on Tuesday, 26 July 2016 with a focus on dispute resolution. The second workshop will be held on Tuesday, 27 September 2016 with a focus on enterprise bargaining.
The Workplace Relations Education Series consists of three initiatives:
The Fair Work Commission and the anti-bullying jurisdiction lecture was presented by Commissioner Hampton, Panel Head of the Commission’s anti-bullying jurisdiction, on 16 May 2016.
A Panel chaired by Justice Iain Ross AO, comprising Commissioner Hampton, Associate Professor Anna Chapman Melbourne Law School, Mr Josh Bornstein, Head of National Employment Relations Group at Maurice Blackburn lawyers and Mr Steven Amendola, partner at Ashurst lawyers Melbourne Office explored the range of challenges and issues associated with the anti-bullying jurisdiction.
Recordings of previous lectures and other events are available for viewing on the Commission's YouTube channel.
The Commission held mock hearings in Melbourne on 17 May 2016 as part of Law Week 2016. The Commission’s President, Justice Iain Ross AO and Members of the Commission presided over a mock general protections and a mock unfair dismissal case.
The Commission held a mock hearing in Canberra on 20 June 2016. Commissioner Johns presided over the mock general protections case.
Videos of the mock hearings are available for viewing on the Commission's YouTube channel.
The Commission has published a new form that allows parties to apply to the Commission to extend the 30-day period for protected action authorised by a protected action ballot under s.459(3) of the Fair Work Act:
The Commission has also published approved amendments to forms for a range of matters. The amended forms are:
Go to the Forms page to download the most up-to-date forms.
The filing fee for dismissal, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act increased to $69.60 from 1 July 2016.
In other changes commencing 1 July 2016, the high income threshold in unfair dismissal cases increased to $138,900 and the compensation limit is now $69,450.
The Commission’s quarterly statistical reports for the 3rd quarter of 2015–16 are now available.
The reports can be accessed from the Quarterly reports page. They cover the period from 1 January 2016 to 31 March 2016.
An information note (PDF) is also available. This provides details about the sources of the data contained in the reports.
A new Fair Work Commission website was launched on 8 July 2016. The new website includes enhancements to search, navigation, content and layout, but the home URL remains the same: www.fwc.gov.au.
The launch of the new website follows an extensive usability review of the Commission’s former website in early 2015. Some of the new website features include:
The Commission has joined with JobWatch and Springvale Monash Legal Service in a pilot program to provide free legal assistance to applicants seeking employment law advice in Melbourne. The Commission will not provide any legal advice, this will be the responsibility of the lawyers from the community legal centres (CLCs).
The two CLC lawyers will provide their services free of charge to self-represented or unrepresented applicants seeking guidance about unfair dismissal or general protections matters. The lawyers will provide important information and assistance to clients with the aim of determining whether an application should be filed in the Commission, lodged in another jurisdiction, or not pursued in any form.
All costs associated with providing duty lawyers for the pilot program will be borne by the Community Legal Centres.
The service will be facilitated by the Commission with the clinic operating in the Commission’s office on level 4 on Wednesday and Thursday mornings from 9.30am to 1.30pm. Registry staff will schedule appointments for clients to meet with the lawyers.
The pilot program commenced in Melbourne on 4 May 2016 and will be reviewed regularly to ensure we are meeting the needs of the parties.
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.
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