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 10 Commission decisions issued between 1 January 2018 and 31 March 2018.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
United Voice and the Australian Education Union (the applicant unions) made an application for an equal remuneration order in relation to the children’s services and early childhood education industry. The application related to employees working in long day care centres or preschools. A comparative exercise was required as a jurisdictional prerequisite. A preliminary question was considered regarding whether the proposed comparator satisfied the jurisdictional requirement.
The Full Bench held that the applicant unions ‘elected to place all their forensic eggs in one basket’ by seeking to demonstrate the required equality or comparability in work value between its selected male and female comparator groups, by reference only to the 2005 Work Value Decision and the subsequent historical pay nexus, without calling any evidence.
The Full Bench found that the applicant unions fell short in attempting to satisfy the jurisdictional prerequisite for the making of an equal remuneration order. The application was dismissed.
At first instance the Commission found that the employee had been unfairly dismissed and ordered the appellant to pay compensation of $25,765.22 less taxation.
The Full Bench was satisfied that the appellant was denied procedural fairness when it was not permitted to cross-examine the employee, and that the denial of procedural fairness impacted the outcome of the hearing. The natural justice defects were not overcome by the provision of the first decision, the transcript, and an opportunity to call further evidence and cross-examine the respondent at a second hearing.
The appeal was allowed and the decision at first instance was quashed. The matter was remitted to a different Commission Member to be re-determined.
The Commission found at first instance that the employee’s dismissal was harsh and ordered reinstatement. The employee had been dismissed due to his incapacity to perform his pre-illness duties. The appellant argued that a tension existed between the Commission’s consideration of the decisions in Jetstar and Lion Dairy.
The Full Bench agreed that there was a tension between the decisions in Jetstar and Lion Dairy. The Full Bench found that the Commission erred in its adoption of the approach in Lion Dairy at first instance, and found that the approach in Jetstar was appropriate.
The appeal was upheld and the decision and order at first instance quashed. The matter was remitted to Platt C for rehearing.
The Commission declined to grant the appellant an extension of time to file his general protections dismissal application. The application was filed 43 days after the 21 day time period had expired. When considering the reasons for the delay in determining ‘exceptional circumstances’ the Commission relied on Cheval Properties as authority, determining that the appellant needed to provide a credible explanation for the entire period of the delay.
The Full Bench found that it was not conditional to the grant of an extension of time that an applicant provide a credible explanation for the entire period of the delay. The Full Bench found that the adoption of the decision in Cheval Properties amounted to an error of law. The Full Bench concluded that there was sufficient doubt to warrant reconsideration on appeal.
Permission to appeal was granted. The appeal was upheld and the decision quashed. The matter was remitted to Harper-Greenwell C for rehearing.
This application for unfair dismissal was dismissed on the basis that the applicant unreasonably failed to comply with directions and attend a non-compliance hearing. The respondent filed an application for costs against the applicant for the costs of engaging a consultant.
The Commission questioned why the respondent had not disclosed its use of a representative in the proceedings. The respondent submitted that the consultant was engaged to assist in preparing its defence, but not to speak on the respondent’s behalf, submitting that the consultant did not act as a representative according to the guidelines under Form F3.
The Commission considered Fitzgerald and was satisfied that the work undertaken by the consultant was broad enough to be captured within the scope of representation by a paid agent. The Commission found that the respondent was not precluded from making an application for costs and that the response to Form F3 should not count against the respondent.
At first instance the Commission found that the dismissal was harsh and unjust and ordered reinstatement. The matter was appealed by Bupa. The Full Bench upheld the appeal [ FWCFB 3941] and referred the application for rehearing on whether Ms Tavassoli was dismissed.
The Commission considered whether the resignation provided was legally ineffective, given the employee’s attempt to withdraw her resignation and her level of emotional distress. The Commission found that the resignation should not have been accepted in the circumstances and found that Ms Tavassoli was dismissed on the employer’s initiative. The file was returned to Full Bench to determine what further Orders should be made.
This matter related to a dispute about whether the period an employee is locked out, pursuant to employer response action, was ‘service’ within the meaning of s.22 of the Fair Work Act, and therefore whether the employees had an entitlement to accrue leave during a period of lock out.
The Commission considered the construction of the Fair Work Act and found that a period of lock out was a period of unpaid, authorised absence. It followed that a period of absence was excluded from a period of ‘service’ within the meaning of s.22. The Commission was satisfied that the period was not ‘service’ for the accrual of leave entitlements.
Ballots approved a proposed amalgamation between the CFMEU, MUA and TCFUA (the applicant organisations). The Commission considered whether a day should be fixed as the day on which the amalgamation is to take effect. The Australian Mines and Metals Association and Master Builders Australia were opposed to the proposed amalgamation.
The Commission considered whether there were any relevant proceedings pending against the applicant organisations. There were a significant number of proceedings pending against the CFMEU and the MUA. The proceedings were described as ‘civil penalty proceedings’. Section 73(2)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act) excludes ‘civil proceedings’ from the kind of pending proceedings that would prevent the Commission from fixing an amalgamation day.
The Commission was satisfied that the outstanding civil penalty proceedings were ‘civil proceedings’, and was satisfied that the requirements of s.73 of the RO Act were met. The amalgamation of the applicant organisations took effect from 27 March 2018.
Between 15–16 January 2018 the Australian Rail, Tram & Bus Industry Union and the Association of Professional Engineers, Scientists and Managers Australia notified Sydney Trains and NSW Trains (the Employers) that its members would be engaging in indefinite bans on overtime, and complete stoppages of work for a 24 hour period. The Employers filed an application for an order for the suspension or termination of the protected action.
The Commission heard evidence on the impact of the proposed industrial action on workers, emergency services, students, tourists, the economy and of safety risks. The Commission found that the protected action would be likely to cost the economy significantly more than $90 million. This potential ‘significant economic damage’ required the Commission to make an order suspending or terminating the protected industrial action.
The Commission ordered that the industrial action be suspended for six weeks, in expectation that the parties would use this period to conclude negotiations.
In this application for unfair dismissal the applicant objected to legal representation for the CSIRO during the submission stage, in the lead-up to a formal hearing under Rule 12(2) of Fair Work Commission Rules. The applicant sought directions that the CSIRO not be permitted representation. The Commission granted representation to the CSIRO for the mention hearing to deal with applicant’s objection to legal representation.
The Commission considered the need to balance efficiency and fairness against the need for formal representation [Warrell]. The Commission considered Fitzgerald and found Rule 12(1) exempted making written applications and submissions, document lodgment and correspondence with the Commission from the prohibition in s.596(1) of the Fair Work Act.
This section provides a summary of a Federal Court review of a Commission decision.
The Federal Court has upheld the decision of the Commission that the conduct of an applicant employee, who had been acting as a workplace representative for colleagues and charging for representation services, constituted a valid reason for dismissal.
The applicant had been employed by the respondent as a Postal Delivery Officer for 38 years. The respondent regarded the conduct of the applicant as a conflict of interest and the applicant was summarily dismissed. The Commission found that allegations of misconduct proven but that the applicant should not have been summarily dismissed as he had not been suspended from duty. The Commission found the dismissal on this procedural basis was unreasonable and unjust and ordered the respondent pay the applicant compensation.
On review to the Federal Court, the applicant argued that the Commission erred in its failure to give proper regard to the prohibition imposed by s.772(1)(d) of the Fair Work Act – that being consideration as to whether the applicant’s employment had been terminated because he was acting as ‘a representative of employees’ – when making a decision as to whether the termination was ‘unfair’. The Court held the errors relied upon were not made out, as the Commission was not required to give consideration to s.772 when determining an application for unfair dismissal. The application was dismissed.
In 2017 a Full Bench rejected an ACTU claim for ten days paid family and domestic violence leave. The majority decision (Gooley DP and Spencer C) formed a preliminary view that all employees should have access to unpaid family and domestic violence leave and employees should be able to access personal/carers leave for this purpose.
A reconstituted Full Bench addressed those preliminary views and decided to provide five days’ unpaid leave per annum to all award covered employees (including casuals) experiencing family and domestic violence.
The Full Bench did not act on the preliminary view relating to accessing personal/carers leave for the purpose of family and domestic violence leave.
Interested parties will be provided an opportunity to make submissions on the final form of a model term that will be inserted into modern awards.
The matter has been listed for Mention before the President on 1 May 2018 at 11am in Sydney.
The Full Bench rejected a claim by the ACTU relating to ‘Family Friendly Working Hours for Parents and Carers’, however, the Full Bench noted that rejection of the claim did not conclude the matter. As the claim was made in the context of the 4 yearly review of modern awards, the Full Bench noted that the Commission is not constrained by the terms of a particular application.
The Full Bench went on to reach a provisional view that modern awards should be varied to incorporate a model term to facilitate flexible working arrangements for parents and carers. The Full Bench proposed a provisional model term that would supplement the NES, which differs from the term originally sought by the ACTU.
Interested parties will be provided with an opportunity to make further submissions.
The matter has been listed for Mention before the President on 1 May 2018 at 10am in Sydney.
A Full Bench was convened to hear and determine a number of claims advanced by different parties involving public holiday provisions in various modern awards. The claims broadly related to (among other things) arrangements for when Christmas Day falls on a weekend, removing existing entitlement around payment for public holidays falling on an RDO, part-day public holidays and arrangements for workers with non-standard work arrangements (in the retail sector).
The Full Bench rejected the claims before them, with the exception of the claims related to part-day public holidays and Christmas Day arrangements in the health and related sectors. Further conferences will occur in relation to these claims.
The Full Bench also noted that a claim made by Clubs Australia Industrial will be considered depending the outcome of proceedings relating to the coverage of the Clubs and Hospitality modern awards.
The Full Bench considered a number of applications to vary existing annualised wage arrangement provisions or to add new annualised wage arrangement provisions to modern awards. The Full Bench was also tasked with reviewing existing annualised wage provisions generally.
In their decision, the Full Bench provisionally set out a number of model clauses that could cover employees depending on whether their work hours are stable or variable. They also dealt with each application in detail.
Interested parties were provided an opportunity to make further submissions and a number of submissions and submissions in reply have been received. Parties have the opportunity to request a further oral hearing if required.
Abandonment of employment provisions in six modern awards are being reviewed following a Full Bench decision in Iplex, which determined that the abandonment of employment clause in the Manufacturing and Associated Industries Award 2010 was not a term permitted or required to be in a modern award and was consequently of no effect by virtue of s.137 of the Fair Work Act.
In their decision, the Full Bench concluded that the abandonment of employment clauses in the awards in question were not terms permitted or required to be included in a modern award, and that they should be deleted. However, they decided it may be useful to include a provision in modern awards identifying procedures to be followed when there is an extended and unexplained absence on the part of the employee. Interested parties were invited to file proposals for a provision to replace the current clauses in the awards.
A number of proposals have been received by the Commission and parties are invited to participate in a conference in order to try to reach a consensus position about a replacement provision.
The Commission issued a Statement which sets out the issues that have arisen in the Award stage and common issue proceedings of the Review which have been referred to the Plain Language Full Bench.
Directions will be issued dealing with each issue in due course.
The benchbooks are designed to provide information to parties to assist in the preparation of material for matters before the Commission.
The benchbooks contains plain language summaries of the key principles of industrial relations law and how these have been applied in Commission decisions.
The updated versions incorporate recent updates, and are both currently available as PDFs and online versions.
The Commission is consolidating the various access to justice programs in operation around the country. A new Workplace Advice Service (WAS) will consolidate the Workplace Advice Clinics, the Pro Bono programs, the Out of Hours pilot, and some new initiatives into one overarching service model.
The WAS will offer free legal advice (approximately one hour) to parties in matters which involve:
The WAS will be available to applicants, named individuals and respondents who meet the eligibility criteria (that they are not represented, they are not members of a union or an employer organisation and they do not have dedicated in-house human resources or legal staff).
The WAS will be accessible at varying stages throughout an application’s lifespan, depending on the application type.
The WAS will be launched initially in Victoria, followed by NSW, Qld, SA and WA.
The Commission has published an interactive online version of the annual report for the last financial year.
The Annual Report 2016–17 online is now available on our website.
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.