Fair Work Commission

Welcome

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.

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au.

The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 January 2020 and 31 March 2020.

Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.

COVID-19

COVID-19 response and award applications

The Fair Work Commission’s ongoing focus is to ensure continued service provision to employees, employers and their representatives during the COVID-19 pandemic.

The Commission has published a statement that sets out how it is responding to the COVID-19 pandemic.

We have introduced measures to limit social interactions, to keep our workforce safe and to ensure the continuity of our services. This includes closing our counters and no longer accepting applications in person or by post.

The Commission has established a dedicated email inbox (COVID19Applications@fwc.gov.au) and workflows to deal with urgent applications related to the COVID-19 pandemic.

The Commission has also created a dedicated webpage for Coronavirus (COVID-19) updates & advice to help people find all of the information they need in relation to the Commission's services during this time.

Changes to the Fair Work Commission Rules 2013 & forms updated

The Fair Work Commission has registered the Fair Work Commission (Miscellaneous Measures) Rules 2020 (Rules Amendment).

The Rules Amendment amends the Fair Work Commission Rules 2013 (Rules) with effect from 1 May 2020.

The changes alter:

• the rule that requires notice that a lawyer or paid agent acts for a party to be given, to make giving such notice voluntary and the responsibility of the party
• the way in which bargaining representatives are invited to advise the Commission about whether they support the approval of an enterprise agreement or disagree with statements in an employer declaration lodged in relation to the agreement, and
• the rules that required a statutory declaration to be lodged with the Commission, to instead require the lodgment of a signed, but not witnessed, declaration.

A copy of the Rules Amendment and the Explanatory Statement to the Rules Amendment are available on the Federal Register of Legislation website. A compilation of the amended Rules will be available there shortly.

A change has also been made to Form F23A – Employer’s declaration in support of variation of an enterprise agreement, to reflect that the Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020 have temporarily shortened the access period for variations to enterprise agreements (see COVID-19 & variations to agreements).

Updated forms incorporating the amendments have been published on the Forms page of our website.

Award variations

Hospitality Industry (General) Award 2010

Background

The Australian Hotels Association (the AHA) and the United Workers' Union (UWU) jointly filed an application to vary the Hospitality Industry (General) Award 2010 (the Hospitality Award) on 24 March 2020. The application arose from the unique set of circumstances pertaining to the COVID-19 pandemic. The parties requested the hearing of the application be expedited. The application was posted on the Commission's website at 10.15am on 24 March 2020 and the matter was listed for hearing at 4.00pm the same day. The Full Bench explained that the notice provided to interested parties was much shorter than standard practice. The Full Bench considered Kioa and Coal Allied Mining Services and noted that in this instance the consent of the key industrial parties' was the central consideration.

The recent Government announcements in response to COVID-19 are likely to have a substantial impact on businesses in the hospitality sector and their employees, many of which are employed part-time. The Commonwealth Government guidelines restricted pubs, registered and licensed clubs (excluding bottle shops attached to these venues) and hotels (excluding accommodation) from opening from midday local time on 23 March 2020. This will inevitably include many businesses covered by the Hospitality Award. Businesses that are permitted to and able to provide take away meals or drinks are likely to have fewer customers and reduced employee numbers as a result. The impact of these restrictions will affect businesses and their employees immediately and into the foreseeable future.

The application sought to add a new 'Schedule L—Award Flexibility during the COVID-19 Pandemic' to the Hospitality Award. The proposed Schedule L contained five agreed key components including:

• the period of operation
• classification flexibility
• flexibility in hours of work
• annual leave flexibility, and
• dispute resolution.

Outcome

The Commission may make a determination varying a modern award if satisfied that the determination is necessary to achieve the modern award objective. The modern awards objective is to 'ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions', taking into account the particular considerations identified in ss.134(1)(a)-(h) of the Fair Work Act.

The UWU put that this variation was 'a short-term variation to deal with the current crisis and represents a measured and appropriate response to unique circumstances'. This sentiment was echoed by the AHA, who submitted that 'the package would facilitate the retention of employees in employment as the sector comes to terms with the scale of the crisis'. The Full Bench noted that the application was strongly supported by the Minister who commended the parties on the agreement reached.

The Full Bench was satisfied that the measures encompassed in the variation strike an appropriate balance between the provision of additional flexibility and treating affected employees fairly. The Full Bench approved the application in an ex tempore decision at the conclusion of the hearing on 24 March 2020. The award variation determination was published the same day. As required by s.165(3) of the Fair Work Act, the determination does not take effect in relation to a particular employee until the start of the employee's first full pay period that starts on or after the day the determination comes into operation.

Read decision [2020] FWCFB 1574.

Clerks—Private Sector Award 2010

Background

A joint application was filed by the Australian Chamber of Commerce and Industry (ACCI) and the Australian Industry Group (Ai Group), with the support of the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU), to vary the Clerks—Private Sector Award 2010 (the Clerks Award) to achieve the modern awards objective. The hearing of this matter was expedited.

On 26 March 2020 the Full Bench issued a statement (the 26 March Statement) [[2020] FWCFB 1630] setting out the background to the joint application. The joint application arose from the unique set of circumstances pertaining to the COVID-19 pandemic. The joint application set out the impact of this on office work, including that most offices in CBD's and major towns are now empty with employees encouraged to work from home as far as practicable; and those still attending work are adopting new work patterns to reduce the level of exposure to colleagues, which includes rostering a limited number of employees into work at any one time and spacing employees out in the physical office environment.

The joint application sought to add a new schedule, Schedule I—Award Flexibility during the COVID-19 Pandemic to the Clerks Award. It was proposed that the new schedule operate until 30 June 2020. The proposed new Schedule I proposes flexibility in the relation to:

• the range of duties employees can be required to perform
• the minimum engagement for a part-time and casual employees working from home
• the spread of ordinary hours of work for day workers working from home
• the temporary reduction of ordinary hours by agreement
• the taking of annual leave, and
• the notice period for a close-down.

In the 26 March Statement the Full Bench expressed a number of provisional views. Interested parties were invited to file written submissions supporting or opposing the joint application and the provisional views. Submissions were received from the Minister for Industrial Relations, ACCI and the Ai Group.

Outcome

The Commission may make a determination varying a modern award if satisfied that the determination is necessary to achieve the modern award objective. The modern awards objective is to 'ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions', taking into account the particular considerations identified in ss.134(1)(a)-(h) of the Fair Work Act. The variations under consideration were temporary in nature and advanced by consent. They are also aimed at providing employers and employees with the various flexibilities in working arrangements that are now seen as necessary options to preserve, as best as can be, on-going employment, paid hours of work and alternatives to standing down employees without pay or making employees redundant.

The Full Bench accepted that the proposed variation may result in low paid employees working less hours and consequently receiving less pay. Employers and employees face an invidious choice and the retention of as many employees as possible in employment, albeit on reduced hours, is plainly a priority. The Full Bench was satisfied that the variation of the Clerks Award as proposed was necessary to achieve the modern awards objective. The Full Bench made the variation. The determination came into operation on 28 March 2020. As required by s.165(3) the determination does not take effect in relation to a particular employee until the start of the employee's first full pay period that starts on or after the day the determination comes into operation. A copy of the variation determination is at Attachment B to the decision.

The Full Bench held the measures encompassed in the variation strike an appropriate balance between the provision of additional flexibility and treating affected employees fairly, and commended the parties on the balanced nature of the agreed package.

Read decision [2020] FWCFB 1690.

Restaurant Industry Award 2010

Background

This application to vary the Restaurant Industry Award 2010 (the Restaurant Award) was filed by the Restaurant and Catering Industrial (RCI), with the support of the United Workers Union (UWU) and the Australian Council of Trade Unions (ACTU). RCI, the UWU and the ACTU have been in discussions to reach a consent position on changes to the Restaurant Award that can mitigate against the current impacts COVID-19 has on employees and employers covered by the award. The application is the product of that dialogue and is moved by consent of the parties. The hearing of this matter was expedited.

On 30 March 2020 the Full Bench issued a statement (the 30 March Statement) [[2020] FWCFB 1715] setting out the background to the application. The application noted the impact of the COVID-19 pandemic upon the restaurant industry including that:

• the restaurant and catering industry was materially impacted by COVID-19
• restaurants, cafes and food court outlets can no longer trade, save for the provision of take away and/or delivery services
• those still attending work are adopting new work patterns to reduce the level of exposure to colleagues and clients, including by rostering a limited number of employees into work at any one time and spacing employees out in the relevant worksite
• some workplaces are closing to transition their business to a take away delivery business and these closures necessitate placing employees on leave for a period, and
• the businesses have had no choice in this matter, given the directives issued by the Federal Government and supported by State Government public health orders.

The application sought to add a new schedule, Schedule I—Award Flexibility during the COVID-19 Pandemic to the Restaurant Award. It was proposed that the new schedule operate until 30 June 2020. Schedule I proposes flexibilities in the relation to:

• the range of duties employees can be required to perform
• the reduction of ordinary hours of work for full-time and part-time employees
• employees being directed to take accrued annual leave with 24 hours’ notice, subject to considering an employees’ personal circumstances
• employees, by agreement, taking up to twice the amount of the accrued annual leave at half pay, and
• a reduction in the notice period for a close-down.

The Full Bench expressed a number of provisional views in the 30 March Statement. Interested parties were invited to file written submissions. Submissions were received from the RCI and UWU and the Minister for Industrial Relations. RCI and the UWU jointly submitted that four aspects of the application warrant emphasis:

• that the application was made by consent
• the variation is temporary
• a requirement to consult, and
• that employees should not be disadvantaged in respect of leave entitlements.

The Minister strongly supported the granting of the application and noted the similarity between the agreed amendments and those previously granted by the Full Bench in relation to other awards.

Outcome

The Full Bench were satisfied that the variation proposed was necessary to achieve the modern awards objective. The Full Bench made the variation determination sought. The determination came into operation on 31 March 2020. As required by s.165(3) of the Fair Work Act, the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation. A copy of the variation determination is at Attachment A to the decision

Read decision [2020] FWCFB 1741.

Educational Services (Schools) General Staff Award 2010

Background

This application to vary the Educational Services (Schools) General Staff Award 2010 (the Schools – General Staff Award) by Independent Schools Victoria (the ISV). The ISV and the Independent Education Union (the IEU) have been in discussions directed at reaching a consent position on changes to the Schools – General Staff Award to mitigate the impact of COVID-19 on employees and employers covered by the award.

The application was supported by the IEU and the Association of Independent Schools New South Wales, the Association of Independent Schools South Australia, the Association of Independent Schools Western Australia and Independent Schools Tasmania.

The application sought to insert a new schedule 'Schedule J' into the Schools – General Staff Award. Schedule J:

• allows an employer to direct an employee to reduce their hours by up to 25% (subject to a number of protections)
• contains a clause regarding operational flexibility, and
• provides that any dispute regarding the operation of Schedule J may be referred to the Commission in accordance with clause 9 of the Award

On 23 April 2020 the Full Bench issued a statement [[2020] FWCFB 2112] (the 23 April Statement) setting out the background to the application and expressed the provisional view that taking into account the relevant s.134 considerations the variation of the Schools – General Staff Award as proposed in the Application was necessary to achieve the modern awards objective. Interested parties were invited to file submissions.

Outcome

The Full Bench received no submissions opposing the application. The application was approved, and a variation determination made. The determination came into operation on 24 April 2020. As required by s.165(3) of the Fair Work Act the determination does not take effect in relation to a particular employee until the start of the employee's first full pay period that starts on or after the day the determination comes into operation.

Read decision [2020] FWCFB 2108.

Variation of awards on the initiative of the Commission

Background

The Commission acted on its own initiative to vary certain modern awards to achieve the modern awards objective. The published Statement was made in the context of the unique circumstances pertaining to the COVID-19 pandemic, and set out provisional views regarding the variation of 103 modern awards to provide an entitlement to unpaid ‘pandemic leave’ and the flexibility to take annual leave at half pay.

The variations proposed do not preclude other variation applications being made to modern awards to provide additional measures during the COVID-19 pandemic. The Full Bench encourage industrial parties to continue (or enter into) discussions directed towards consent applications to vary modern awards. The Commission is available to assist in facilitating those discussions on request.

The COVID-19 pandemic and the responses from governments, both federal and state, initially put restrictions on some businesses and then forced many to close, with consequential impacts on employees. On 26 March 2020 the Australian Bureau of Statistics (ABS) released the first results from a survey of businesses on the impacts of COVID-19.

Recently the Commission also briefed Professor Borland (Truby Williams Professor of Economics, University of Melbourne) to provide an expert report on the industries and sectors most likely to be adversely affected in the short term by the response to the COVID-19 pandemic. The objective of the report was to assess which industries (and hence in which modern awards) there might be the greatest potential immediate benefit from allowing extra flexibility in employment arrangements. The report identified industries in which there is the largest potential immediate negative impacts on employment. Broadly, the industries fell into three categories:

• the first category were industries where there has been a decrease in labour demand due to government restrictions
• the second category were industries affected by a decrease in labour demand due to households reducing their spending – for example on semi-durable and durable goods, and
• the third category were industries where there have not yet been major decreases in labour demand, but where more stringent government restrictions or other factors may cause a decrease in labour demand in the future.

The Commission has recently made variations on an expedited basis to the Hospitality Industry (General) Award 2010 (the Hospitality Award) [[2020] FWCFB 1574], the Clerks—Private Sector Award 2010 (the Clerks Award) [[2020] FWCFB 1690], and the Restaurant Industry Award 2010 (the Restaurant Award) [[2020] FWCFB 1741]. These variation applications had the support of the major industrial parties and were supported by the Australian Council of Trade Unions (the ACTU) and the Minister for Industrial Relations. This matter will also be expedited. In addition to these variations of modern awards, the ACTU’s website records that a number of businesses have granted employees access to special paid sick leave and additional support.

The measures the Full Bench are proposing to take are not intended to disturb the initiatives that are being taken by businesses to ameliorate the impact of the COVID-19 pandemic on employees. To contain the spread of COVID-19 and to ‘flatten the curve’ in order to reduce pressure on the health system, employees may be requested or required to self-isolate for 14 days. Some employees required to self-isolate may be able to access paid or unpaid leave, however for most award-covered employees this will depend upon the agreement of their employer. If the employer does not consent then the employee may be placed in the invidious position of either contravening public health directions or guidelines, or placing their employment in jeopardy.

These gaps in leave entitlements and protections against dismissal could be addressed for employees to whom awards apply, by providing an entitlement to unpaid ‘pandemic leave’ if employees are required to self-isolate, or are otherwise prevented from attending work. The unpaid pandemic leave the Full Bench are proposing is intended to be a short-term measure to address this ‘regulatory gap’.

Outcome

The Full Bench proposed to insert a new Schedule: Schedule X—Additional measures during the COVID-19 pandemic into selected modern awards. The new schedule will operate until 30 June 2020 (unless extended on application or on the initiative of the Commission). The two additional measures in the Schedule are unpaid pandemic leave and the ability to take twice the amount of annual leave at half pay.

The Full Bench envisage that the variation of modern awards to include proposed Schedule X will occur in more than one phase. In selecting the awards to be included in phase 1 the Full Bench have had regard to:

• the industries (and associated modern awards) that are likely to be impacted by the COVID-19 pandemic in the short and medium term (the ABS data and Professor Borland’s expert report are relevant in this regard)
• awards which have a significant proportion of award-reliant employees, and
• awards with a high proportion of small businesses.

The selected phase 1 modern awards are listed at paragraph [108] of the Statement.

The Commission may make a determination varying a modern award if the Commission is satisfied that the determination is necessary to achieve the modern awards objective. The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) of the Fair Work Act.

There are two versions of Schedule X. The first version will:

• provide all employees (including full-time, part-time and casual employees) with a new entitlement of up to two weeks’ unpaid pandemic leave, and
• provide for employees by agreement with their employer to take twice the amount of their accrued annual leave at half pay.

It is the provisional view of the Full Bench that the first version be inserted into the phase 1 modern awards set out at paragraph [108] (except the Hospitality Award, Clerks Award and the Restaurant Award).

The second version of the new schedule will omit the provision for annual leave at half pay and will be inserted into the Hospitality Award, Clerks Award and the Restaurant Award.

Submissions were sought from interested parties on the Full Bench's provisional views. A wide range of submissions were received and considered by the Full Bench. The provisional view was confirmed, and the variations made.

The Full Bench estimated that about half of private sector employees in the federal jurisdiction (or about 4.36 million private sector employees) will be able to access the new provision. By assisting in maintaining employment and the viability of businesses these measures will directly contribute to the sustainability and performance of the national economy. Taking into account the considerations in s.134 of the Fair Work Act, the modern award variations proposed were necessary to achieve the modern awards objective. The variations made do not preclude other variation applications being made to vary modern awards to provide additional measures during the COVID-19 pandemic.

Read decisions [2020] FWCFB 1760 and [2020] FWCFB 1837.

Agreement variations

CVSG Electrical Construction Enterprise Agreement 2017 – 2021

Background

This decision relates to an application by CVSG Electrical Construction Pty Ltd to vary the CVSG Electrical Construction Enterprise Agreement 2017 – 2021. The Agreement was approved on 18 April 2017 with undertakings. The application seeks to vary clause 25 of the Agreement, in addition to Appendix 1 and Appendix 4. Clause 25 of the Agreement, headed ‘Rate Indexation’, deals with wage increases and provides that an employee’s Actual Rate will be increased annually. The variation proposed would have the effect that the wage increase provided by clause 25 of the Agreement would not occur on the 2020 anniversary, the 2020 rates of pay would also be removed from the schedule of wage rates in Appendices 1 and 4 to reflect the change proposed to clause 25. The variation was ‘proposed due to the drastic impact of the coronavirus pandemic’ and is aimed at ‘preserving job security and sustainability’.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought leave to be heard in relation to the application. The CEPU subsequently filed written submissions opposing approval of the proposed variation. The basis of the CEPU’s objection was that the Commission could not be satisfied that the variation was genuinely agreed to by the employees, because the common understanding upon which the variation was approved by relevant employees had altered by reason of the Australian government’s announcement of its JobKeeper initiative. The CEPU said that this had significantly altered the economic predicament faced by the applicant. The CEPU further submitted that the employees had voted to forego their 2020 wage increase in light of circumstances that were no longer applicable, or had at least radically changed.

Prior to the hearing, correspondence was sent from the Commission noting its concerns relating to the application, most notably in relation to:

• compliance with ss.180(5) (explanation of terms and effect of terms) and 196 (shift worker definition) of the Fair Work Act
• terms which might contravene s.55 (exclusion of terms of National Employment Standards (NES)), and
• the better off overall test (BOOT) in so far as it related to employees engaged on a part-time basis.

The correspondence also requested a copy of the agreement as varied. The applicant provided written submissions, a response to the concerns raised by the Commission, signed written undertakings and a witness statement by the general manager of the company.

Outcome

The Full Bench was not persuaded by the CEPU that there were reasonable grounds for believing that employees did not genuinely agree to the variation. The variation was put to the vote based on circumstances that applied at the time, those circumstances then changed. The question of whether employees have genuinely agreed to an agreement or its variation must be considered at the time they gave their agreement, taking into account the circumstances at that time. The applicant submitted, and the Full Bench accepted, that it is not yet clear that the company will be eligible for the JobKeeper programme. The Full Bench was satisfied that the variation had been genuinely agreed to by the relevant employees.

Before the Commission may approve a variation to an enterprise agreement, it must be satisfied that the varied Agreement passes the better off overall test (BOOT). Notwithstanding the effect of the variation to withhold pay increases due under the Agreement, it remains the case that the rates of pay, which are rolled up rates, are substantially higher than the corresponding rates of pay for which provision is made under the Electrical, Electronic and Communications Contracting Award 2010.

The Full Bench was satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval of the variation had been met. The applicant provided written undertakings to meet concerns that particular requirements of the modified provisions of ss.186 and 187 had not been met in relation to this application. Those undertakings form part of the Agreement as varied. The variation was approved and operates from 2 April 2020. The consolidated version of the Agreement, as varied, is attached to the decision.

Read decision [2020] FWCFB 1747.

Stand down disputes

Australian Municipal, Administrative, Clerical and Services Union v Qantas Airways Ltd

Background

This matter relates to an application to deal with a dispute involving stand downs. The application was filed by the Australian Municipal, Administrative, Clerical and Services Union (the ASU) in respect to thousands of its members employed by Qantas who are covered by the Australian Services Union (Qantas Airways Limited) Agreement 11 (PDF) and who have been stood down, or given notice of being stood down, as a consequence of the current COVID-19 pandemic.

The impact of COVID-19 on Qantas has been brutal and devastating for the Company and thousands of its employees, with stand downs of approximately 20,000 having occurred or imminent. This specific dispute arose from Qantas’ view that access to personal leave under clause 48 of the Agreement is not available to employees who are the subject of stand down because Qantas does not require work to be performed (or more correctly, it has no work to be performed). As a result, Qantas will not grant employees access to accrued personal leave and will ‘suspend’ personal leave already approved or being currently undertaken when an employee is stood down.

In the current circumstances, and in consultation with the relevant Unions, Qantas has agreed to allow employees access to:

• accrued annual leave and long service leave
• paid and unpaid parental leave
• leave without pay
• leave at half pay, and
• in some cases, leave is able to be taken in advance.

The ASU maintains that if the prerequisites for the taking of personal leave are met under the Agreement and the Fair Work Act, then employees should be permitted to access their accrued personal leave under clause 48 of the Agreement if they are stood down.

Outcome

There are presently before the Federal Court of Australia urgent applications (NSD376/2020) filed by a number of Unions which I seek declarations from the Federal Court as to agreement breaches, in respect to the very same issue the subject of this dispute; namely, Qantas’ decision not to allow employees to access their accrued personal leave if stood down.

There is a well-accepted principle that, as far as practicable, concurrent litigation about the same issue/s in, and between Courts and Tribunals, should be eschewed so as to avoid unnecessary duplication of finite and stretched court resources and to avoid the possibility of different outcomes on the same issue/s in different jurisdictions. In the present unprecedented circumstances the degree of cooperation, hard work and goodwill demonstrated by the collective union movement, employer organisations, individual employers and the Government, has been extraordinarily proactive, positive and productive; no less so in respect to Qantas and its employees’ Unions.

The Commission recommended that in these circumstances, and given the number of Unions which are or might be in dispute with Qantas about this issue, that the peak union body the Australian Council of Trade Unions should urgently coordinate the Unions’ position and organise and lead negotiations with Qantas about this discrete matter. This may result in resolving any number of existing, or likely disputes and avoid duplication of time, resources and costs for the parties.

Read decision [2020] FWC 1789.

Workplace Advice Service

The Workplace Advice Service team has collaborated with the Australian Tax Office (ATO) to feature in the April edition of the ATO's Small Business Newsroom. The Newsroom is a useful information source and monthly subscription newsletter targeted to small businesses. Articles are posted in the newsroom regularly about a range of topics concerning small business operations. This collaboration will increase the awareness of the Workplace Advice Service to small business employers.

More information is available on the Workplace Advice Service webpage. If your organisation is interested in partnering with the Commission on this initiative, please email was@fwc.gov.au to find out more.

Dismissal matters

Unfair dismissal matters

Warnes v Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust t/a Australasian Body Corporate Management

Background

The applicant in this unfair dismissal matter had been employed by the respondent since November 2017 and was most recently employed as an Admin Support and Trainee Body Corporate Manager. The applicant was dismissed from her employment on or about 24 June 2019 for reasons said to include inappropriate mobile phone use at work, poor communication, lack of consistency in work and internet surfing among other matters.

The matter was listed for conciliation, but the respondent did not attend, and requested that the matter be heard on the papers. The applicant did not consent to the matter being heard on the papers. The Commission determined that the matter would proceed to a formal hearing. The respondent sent a response stating that they would not attend the hearing as he believed the written material he had submitted was sufficient.

The Commission contacted the respondent and explained that the Commission was required to hold a hearing where there is a dispute of fact, and to afford procedural fairness to both parties by allowing each party to test the evidence of the other. The Commission further explained that it will not accept evidence given on behalf of the respondent in circumstances where that witness has not attended a hearing to attest to its truth, and to be available for cross examination by the applicant. The respondent communicated to the applicant their dissatisfaction with the matter not being heard on the papers.

The respondent did not attend the hearing listed for 4 November 2019. The Commission contacted the respondent again to explain that if they did not wish to participate in the matter further, due weight will be put on the material provided, given that it is yet to be sworn in as evidence. The respondent then indicated its intention to engage in the unfair dismissal process. The respondent then confirmed that they would participate in the matter however they were not available until Thursday 27 February 2020 or Friday 28 February 2020. The Commission responded indicating that these dates were too far in advance and provided alternative dates in December 2019. The respondent did not indicate any preference only reiterated that they were not available until 27 or 28 February 2020. The matter was listed for 6 December 2019. The Commission contacted the respondent to put them on notice that should they not attend this hearing, their evidence will not be sworn evidence and that due weight will be put on their evidence in any decision that was made.

The respondent did not attend the 6 December 2019 hearing. In its decision the Commission noted that the 'Directors of the Respondent … have sought to obfuscate the process at every turn. Rather than facing the allegations made head on by the Applicant, they have sought to duck, weave and hide'. The Commission further noted that the respondent 'did not adhere to my procedural decisions that the matter would be determined by hearing. They did not turn up to the hearings. Instead of turning up they complained to every department they could. Rather than spending all that time complaining, they should have been defending Ms Warnes' application'.

The Commission noted that as a result of this the respondent had no sworn evidence in the matter and did not elect to contest or cross-examine the evidence of the applicant. The applicant's evidence was unchallenged and therefore taken as fact.

Outcome

On the evidence before it, the Commission could not be satisfied that there was a valid reason for the applicant's dismissal. The Commission noted that the issue of mobile phone usage had been raised, however this had been taken on board by the applicant and was being rectified. The Commission was satisfied that the process followed by the respondent in effecting the dismissal did not afford the applicant procedural fairness, noting that on the evidence it seemed as though 'the respondent just wanted the applicant gone from the business and then shoddily organised this to happen without going through the correct processes. This was clearly unfair'.

The Commission was satisfied that the dismissal was harsh, unjust and unreasonable and ordered compensation of $17,196.00. The Commission further noted that the applicant 'may face an arduous task in recovering the compensation' and if this is the case, the applicant can enforce the order in an appropriate Court.

Read decision [2020] FWC 152.

Appeal by Chandler against decision of 20 September 2019 [[2019] FWC 6448] Re: Bed Bath N' Table Pty Ltd

Background

At first instance in this unfair dismissal case the Commission determined that the appellant had not completed the minimum employment period and dismissed her application for want of jurisdiction. The appellant appealed, her grounds for appeal included that the roster planned in advance for each month indicated that her employment was on a regular and systematic basis, with all casual shifts planned in advance; and the appellant had an ongoing contract of employment.

Outcome

The Full Bench held that the Commission's determination as to whether the appellant's casual employment was regular and systematic was attended by a significant error of principle. In applying s.384(2)(a) of the Fair Work Act to the facts of the case, the Commission proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. The Full Bench did not consider this to be the correct approach.

The Full Bench held that the decision at first instance was attended by appealable error and considered that the grant of permission to appeal would be in the public interest. The errors concerned a question of the Commission's jurisdiction and the decision departed from well-established principles concerning the construction of s.384(2)(a) with the result that the appellant was deprived of the opportunity to litigate her unfair dismissal remedy application.

Permission to appeal was granted. The appeal was upheld and the decision at first instance quashed. The Full Bench considered that the most efficient course was to re-determine the question of whether the appellant was a person protected from unfair dismissal based on the same evidence that was before the Commission. The Full Bench found that the appellant had completed the minimum employment period and was therefore a person protected from unfair dismissal. The appellant's unfair dismissal remedy application was referred back to the Unfair Dismissal Case Management Team for allocation to, and final determination by a Commission member.

Read decision [2020] FWCFB 306.

McCrae v Perth 178 Backpackers and Convenience Store

Background

This application for an unfair dismissal remedy was brought by an applicant who did cleaning work at the respondent's hostel in exchange for free accommodation for a period of two years. The respondent submitted that the applicant was not an employee and made a jurisdictional objection to the application.

Outcome

The Commission found that the legal requirements of contract formation were satisfied, and as a result a contract at law was made between the parties. The Commission held that the contract was not informal nor 'a mere domestic arrangement or voluntary work'. The Commission found that the contract was for employment, not for services, and that there had been a termination of employment within the meaning of s.386 of Fair Work Act. The respondent's jurisdictional objection was rejected, with the matter to be determined on the merits.

Read decision [2020] FWC 424.

Rahman v Coles Supermarkets Australia Pty Ltd

Background

The respondent to this application for unfair dismissal made a jurisdictional objection on the basis that the applicant had not been dismissed. The applicant's employment commenced in September 2007 and the applicant suffered a workplace injury in October 2015. The applicant returned to work on modified duties and reduced hours in accordance with his medical practitioner's recommendations.

The applicant informed the respondent that he was experiencing pain carrying out his modified duties, as a result the applicant's duties were further modified and his hours further reduced. The applicant could safely perform 'code checking' work but due to improvements in business efficiencies there were only six hours of code checking work per week. There were no other duties beyond this that the applicant could perform without medical restrictions and pain. The respondent informed the applicant that his duties would be withdrawn until his capacity improved, and also informed the applicant in writing that he was not being dismissed.

Outcome

The Commission found that the withdrawal of the applicant's duties did not amount to dismissal. The applicant's current and ongoing employment was evidenced by the applicant remaining on the respondent's payroll system, his continuing accrual of personal leave, and the absence of a notice of termination and an employment separation certificate. The Commission found that the applicant had not been dismissed and as a result the unfair dismissal application was beyond jurisdiction. The application was dismissed.

Read decision [2020] FWC 617.

McCappin v Kone Elevators Pty Ltd

Background

The respondent in this matter raised a jurisdictional objection to the unfair dismissal application. The respondent was contesting the eligibility of the application on the basis that the applicant was not a person protected from unfair dismissal by virtue of his annual earnings and the high income threshold. The applicant was paid a remuneration package which included an annual base salary of $143,780.00, superannuation contributions at the rate of 12.5% of the annual base rate, car allowance and an incentive bonus.

The respondent contended that the applicant's annual earnings for the purposes of the high income threshold included the base salary, excess superannuation contributions and a proportion of the car allowance and therefore the earnings would not be below the high income threshold of $148,700.00. The applicant contended that neither the excess superannuation contributions nor the car allowance should be included for present purposes and that his annual base salary was below the high income threshold.

Outcome

The Commission considered whether the excess superannuation and the excess car allowance were to be included as earnings for the purposes of calculating the applicant's rate of earnings. The Commission gave consideration to Sam Technology in which car allowances paid in circumstances similar to this case were capable of being considered to form part of the annual rate of remuneration.

The Commission further considered the application of ss.332(2)(c) and (4) of the Fair Work Act and found that the excess superannuation contributions were not excluded by virtue of s.333(2)(c), and formed part of the annual rate of remuneration for present purposes. The Commission found that the applicant's annual rate of earning at the time of his dismissal totalled $168,355.00, including annual base salary, excess superannuation contributions and excess car allowance. The applicant's annual rate of earnings was in excess of the high income threshold. The Commission upheld the respondent's jurisdictional objection and dismissed the unfair dismissal application.

Read decision [2020] FWC 61.

Boyle v BHP Coal Pty Ltd

Background

The applicant in this unfair dismissal matter had worked for the respondent for about seven years. He made a comment of a vulgar and graphic nature whilst travelling in a vehicle on a mine site. The applicant claimed that his comment was a joke, in the context of a conversation with female colleagues that was sexual in nature. The respondent alleged that the applicant's comment contravened the company's Code of Conduct, and the BHP Charter Values, and terminated the applicant's employment for misconduct providing five weeks' pay in lieu of notice.

Outcome

The Commission found that 'termination for a single offence is, in these circumstances, far too harsh a punishment'. The Commission noted that there were alternative procedures available to the respondent. The Commission further found that the respondent had denied the applicant procedural fairness through a 'flawed and prejudicial' application of their own guidelines, the hypocrisy of which was 'astounding and unacceptable'.

However, the Commission also found that the applicant's assertions about the context of the conversation were false, and an 'abhorrent' and 'most foul' slur against the applicant's female colleagues. The Commission found that these false assertions were a breach of the Code of Conduct and were therefore a valid reason for the applicant's dismissal, even though it was not a reason provided by the respondent. The Commission found that the applicant's termination was not disproportionate to the misconduct. The application was dismissed.

Read decision [2020] FWC 1080.

Bargaining & agreement making matters

Enterprise agreement matters

Enterprise agreements update

The Fair Work Commission has issued an Enterprise agreements update. It provides information on recent improvements in the Commission's timeliness in dealing with enterprise agreement applications and outlines some current initiatives.

During 2019 the Commission committed to improving the timeliness of agreement approvals. While in the first half of 2019 the Commission prioritised compliant applications, by the second half of the year we were able to significantly improve our timeliness across all agreement applications.

Download the Enterprise agreements update (PDF)

Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decision of 16 September 2019 [[2019] FWCA 6451] Re: Karijini Rail Pty Ltd

Background

This matter relates to an appeal against the decision to approve the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018. The respondent is as subsidiary of the Railtrain Group Pty Ltd (Railtrain), another subsidy of Railtrain is TRRC Pty Ltd (TRRC). TRRC had contract with Roy Hill iron ore mine (Roy Hill) for the supply of rail crew workforce. The respondent, Karijini Rail Pty Ltd (Karijini) was a new entity established partly for purposes of seeking to make an enterprise agreement through it, which would allow a contract with Roy Hill to be obtained.

The appellant sought permission to appeal the decision to approve the Agreement, contending that the Commission erred in respect of its assessment of s.180(5) of the Fair Work Act. The appellant submitted that the Commission failed to take into consideration the explanation given (or not given) by Karijini in respect of the terms of the Agreement other than remuneration. The appellant further contended that respondent failed to explain the Agreement terms in comparison to the Mining Industry Award 2010 and failed to provide employees with a copy or access to the Award. The appellant also contended that the Commission did not consider nor make a finding that Karijini misled employees or failed to properly explain the effect of the Agreement entitlement to redundancy payment and representing that employees who transferred from TRRC would receive benefits under the Agreement.

Karijini contended that the appellant challenged findings that were discretionary decisions, that the Commission considered the relevant matters, and that the Commission was not bound to take in account the matters raised by the appellant. Karijini further contended that the steps taken to explain the Agreement were to be assessed in context of the needs of employees, submitting that the employees were experienced train drivers and that the terms and effects were explained to them in a tailored and relevant way.

Outcome

The Full Bench considered it was in the public interest to grant permission to appeal. The Full Bench stated that arriving at the state of satisfaction as to whether an employer has complied with the obligations in s.180(5) depends on the circumstances of the case. The Full Bench noted that Karijini was a new entity and new entrant into the market it sought to operate in. The Full Bench also noted that the two employees who voted for the Agreement were new employees, and that there had been no prior agreement in place between Karijini and the two employees. The Award was the industrial instrument in operation and applied to the two employees, who were not familiar with the Award.

The Full Bench noted that some of the terms of the Agreement departed from the Award and were or could be detrimental, and found that Karijini did little to explain the effect of terms of the Agreement which would alter, in a detrimental fashion, some of the terms of the Award which applied to the employees. The Full Bench did not consider that Karijini took all reasonable steps to ensure that the effect of the terms of the Agreement were explained to the two employees in the circumstances. Consequently, there was a failure to take into account a relevant consideration. The Commission failed to consider whether Karijini took 'all reasonable steps' to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees in a manner appropriate, taking into account the particular circumstances and needs of the relevant employees.

The Full Bench considered that the Commission was not in error in finding that it was permissible to accept an undertaking under s.190 in order to overcome the employer's failure to comply with s.180(5). However, the Full Bench found that the undertaking given by Karijini did not satisfy s.180(5) as the explanation requirement was more extensive than the issue identified by the Commission at first instance. The Full Bench was also not persuaded that the Commission had considered whether it was satisfied that the group of employees covered by the Agreement was fairly chosen.

Permission to appeal was granted by the Full Bench and the appeal upheld on Grounds 1 (in part), 1A, 3, 6 and 8. The decision to approve the Agreement was quashed. The Full Bench remitted the application for redetermination in accordance with this Decision.

Read decision [2020] FWCFB 958.

Appeal by Esso Australia Pty Ltd against decision of 5 September 2019 [[2019] FWC 6143] Re: Australian Workers' Union & others

Background

At first instance, the Commission dismissed an application made by Esso Australia Pty Ltd (Esso) to terminate the Esso Offshore Enterprise Agreement 2011.

The Commission found that while termination of the Agreement would not be contrary to the public interest, it would tilt the bargaining dynamic in favour of the company. Esso contended on appeal that it was denied procedural fairness based on two findings, and that one finding was based on no probative evidence.

The first ground of appeal related to the reference in paragraph [250] of the decision to there being no evidence that AWU members knew or had considered the possibility of appointing a bargaining representative other than the AWU, and thus restoring their capacity to take protected industrial action. Esso submitted that the Commission placed 'significant weight' on the issue, despite it not being a matter that arose in the litigation.

Secondly, that there was no probative evidence to support the Commission’s finding the AWU members had not considered the issue of changing bargaining representatives and did not know they could do so as a means of re-enlivening their ability to take protected industrial action.

Thirdly, the weight given to the fact that the only 'sin' committed by the AWU offshore employees to cause them to lose the right to take protected industrial action was to have the AWU as their bargaining representative, since they did not themselves contravene the order to stop industrial action.

Outcome

The Full Bench found that the impugned part of paragraph [250] of the decision did not form an operative part of the decision or constitute a finding of fact. The Commission had already stated that it had formed a view, on balance, that it was not appropriate to terminate the Agreement. That in reaching this conclusion, significant weight was given to the unfairness to AWU members that would result from the imbalance in their respective bargaining positions should the Agreement be terminated. The unfairness arising from Esso’s entitlement to introduce unilaterally its desired 14:14 roster cycle upon termination of the Agreement compared to the incapacity of the AWU and its members to organise and take protected industrial action. The requirement for the Commission to provide procedural fairness did not extend to the necessity to provide each party with a warning as to each and every finding which might be made adverse to their interests.

Had there been evidence of a consideration by employees of the alternative of replacing the AWU with another bargaining representative, the Full Bench found that the issue of the imbalance in bargaining power might have been given a different and probably lesser weight. However, the Full Bench sated this was a 'hypothetical observation ... inessential to the decision if not gratuitous in nature'. The impugned sentences in paragraph [250] cannot be read as a finding of fact, and accordingly, no question of the evidence upon which any such finding was made arises.

The Full Bench found that the statement regarding the AWU’s member’s 'only sin' did not fail to afford Esso procedural fairness. It was known to parties and not in dispute that it was the contravention of the order by the AWU via its onshore members which caused that the position that the offshore AWU members, to whom the order did not apply, could not protected industrial action while the AWU remained their bargaining representative.

The Full Bench concluded that none of the appeal grounds had been upheld, and accordingly, the appeal was dismissed.

Read Decision [2020] FWCFB 1077.

Appeal by Australian Nursing and Midwifery Federation against decision [[2019] FWCA 6559] Re: Uniting Church in Australia Property Trust (Q.) t/a Wesley Mission & others

Background

At first instance the Commission approved the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 subject to undertakings. The Australian Nursing and Midwifery Federation (ANMF) was a bargaining representative for the proposed agreement and appealed the decision to approve the Agreement on several grounds, including that the undertakings provided by the respondent caused financial detriment.

The Australian Workers’ Union (AWU) and United Voice (UV) were also bargaining representatives for the agreement. The AWU submitted a Form F18 neither in support nor opposition of the agreement. It joined the ANMF in opposition at the proceedings but did not make separate submissions. UV signed the agreement and submitted a Form F18 in support. It did not appear at the proceedings or make submissions.

The ANMF raised four grounds of appeal, the first being that the Commission erred in affirming that the group of employees was fairly chosen. The ANMF had raised concerns in relation to this issue and it was the subject of two previous decisions made by the Commission before the agreement was approved.

The other grounds contended by the ANMF included that the Commission erred in determining that the Agreement was genuinely agreed to by the employees covered by the Agreement; by accepting undertakings that substantially changed the agreement and caused financial detriment; and by approving the Agreement by allowing a correction to include a signature page by different signatories to those who signed the Agreement previously lodged.

Outcome

The Full Bench was satisfied that it was in the public interest to grant the appeal based on ground 3, that the Commission erred in accepting the undertakings proffered by Wesley Mission. The ANMF contended that the undertakings addressed the commencement time of shifts and associated penalties 'by jettisoning the provision voted on and substituting an entirely new scheme' (Undertaking 8). It further contended the agreement provisions for overtime payments, weekend, public holiday penalty rates and cancellation of an assignment were substantially revised by the undertakings. The ANMF also contended that the undertakings caused financial detriment which the Commission did not address. Wesley Mission contended that the undertakings did not bring any substantial change and that this was carefully considered by the Commission, as apparent from the July 2019 decision.

The Full Bench noted the requirements of s.190(3) of the Fair Work Act which stipulates the Commission must be satisfied that an undertaking is not likely to cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement. The case of Metropolitan Fire and Emergency Services Board was also referred to, where Gostencnik DP outlined the operation of the provisions concerning the approval of enterprise agreements with undertakings in s.190. The Deputy President noted that before accepting an undertaking the Commission must seek the views of known bargaining representatives for the agreement. The Full Bench analysed the concerns in relation to financial detriment and agreed that the Commission failed to take into account whether the effect of accepting Undertaking 8 would not likely cause financial detriment to any employee covered by the Agreement. The Full Bench then turned to the question of whether the effect of accepting the undertakings would result in substantial changes to the Agreement. Reference was made to Lightning Brick Pavers and CFMEU v Kaefer Integrated Services, where it was observed that s.190(3) does not allow for undertakings which significantly reshape the structure of the agreement so that it bears no resemblance to the agreement originally approved by employees. The Full Bench determined that the Commission did take into consideration the questions raised in Lightning Brick Pavers and CFMEU v Kaefer Integrated Services and also took into account relevant considerations as set out in its analysis. The Commission did not err in its conclusion that the effect of accepting the undertakings did not result in substantial changes to an Agreement.

The application for appeal was granted in part on ground 3, that the undertakings caused financial detriment. The application for the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 was remitted to the Commission for redetermination.

Read decision [2020] FWCFB 848.

Disputes & industrial action matters

Dispute resolution matters

Thirunavukarasu v William Angliss Institute

Background

The matter deals with an alleged dispute under the William Angliss Institute of TAFE PACCT Staff Enterprise Agreement 2017. The dispute resolution procedure is at clause 12 of the Agreement. The dispute was filed in respect of the proposed redeployment of the applicant to a new role. The applicant did not accept that the proposed new role constituted 'suitable alternate employment' in accordance with clause 15 Redundancy & Redeployment of the Agreement. The respondent submitted that the Commission did not have jurisdiction to deal with the application on grounds including that the preconditions for the Commission's involvement in the dispute had not been (and could not be) met.

Outcome

The Commission considered Berri and found that the mandatory steps of the dispute resolution procedure at clause 12.4.6 and clause 12.4.9 had not been taken. As a result the Commission found that the applicant had failed to follow and 'exhaust' all of the required steps in the dispute resolution procedure and as such the Commission was precluded from dealing with the dispute. The application was dismissed for want of jurisdiction.

Read decision [2020] FWC 1144.

Industrial action matters

Orora Packaging Australia Pty Ltd t/a Orora Bag Solutions v El-Chami & others

Background

This matter relates to an application by Orora Bag Solutions (Orora) for orders that alleged unprotected industrial action stop. Orora alleged that covert industrial action, in the form of coordinated sick leave, was undertaken by a group of 31 employees during a time of protected industrial action. Orora submitted that the increased absences caused a detrimental effect on its operations.

Outcome

The Commission found that the absences were coordinated and formed a concerted campaign against Orora. The Commission found that the absences in the form of coordinated sick leave amounted to industrial action as defined in the Fair Work Act. The Commission was satisfied that unprotected industrial action was threatened, impending or probable. The Commission issued an Interim Order to stop the industrial action for a period of two months. The order makes clear that it is directed to the industrial action in the form of the systematic taking of sick leave (and not other, protected, industrial action).

Read decision [2020] FWC 224.

Registered organisations matters

In the matter of the Entry Permit of Blake Patrick Hynes

Background

Mr Blake Hynes was an official of the Construction, Forestry, Maritime, Mining and Energy Union and holder of an Entry Permit. The Federal Circuit Court of Australia judgment in ABCC v Hynes found that Mr Hynes had acted in an improper manner, using aggressive profanities towards the General Manager of Enco Precast Pty Ltd whilst exercising rights in accordance with Part 3-4 of the Fair Work Act.

Outcome

The Commission was notified of the judgment and initiated consideration of whether the Entry Permit held by Mr Hynes should be revoked or suspended pursuant to s.510 of the Fair Work Act. The Commission considered the exercise of power under s.510 and the matters in Parker and others. The power in s.510 is protective and corrective, not penal. The Australian Building and Construction Commissioner submitted that the permit should be revoked with a ban period of at least 12 months, contending that Mr Hynes had not demonstrated genuine remorse for his contravening conduct, plus other relevant findings of misconduct.

The Commission considered Mr Hynes' lack of regret, remorse or contrition, and also considered contravening conduct in the Bruce Highway Case was relevant in considering whether to revoke the permit instead of suspending it. The Commission found that suspension or revocation would not be harsh or unreasonable in the circumstances. The Entry Permit was revoked, and a ban period of three months fixed.

Read decision [2020] FWC 97.

Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decision of 18 November 2019 [[2019] FWC 7850] Re: Australian Building and Construction Commission

Background

At first instance the Commission denied the appellant’s application for the reissue of the right of entry permit for CMMFEU official Mr Paul McAleer. The Commission considered DP World, Patricks No. 1, Patricks No. 2 and Hutchinson Ports. The Commission found that Mr McAleer was not a ‘fit and proper person to hold a right of entry permit’ for organising unlawful industrial action over a considerable period of time.

The appellant appealed on grounds of error of reasoning in reliance on earlier proceedings, and denial of procedural fairness for failing to take into account Mr McAleer’s professional need for a permit.

Outcome

The Full Bench held that the Commission is not bound by the rules of evidence and so the error of reasoning appeal grounds was rejected. The Full Bench held that Mr McAleer’s need for an entry permit was irrelevant to his ‘fitness and proprietary’ to hold one. Permission to appeal was granted. The appeal was dismissed.

Read decision [2020] FWCFB 1099.

Anti-bullying matters

Mayson v Mylan Health Pty Ltd & others

Background

This decision relates to an application for an interim anti-bullying order to prevent dismissal. This matter arose in connection with a substantive application made by the applicant for orders to prevent her from being bullied at work. In that application, the applicant contends she has been subjected to repeated unreasonable behaviour engaged in by her employer and eight named individuals who are employees of the company.

The applicant alleged she was first subjected to bullying conduct in 2014. She further alleged that from around May 2017, the company and six of the named individuals bullied her in a number of different ways, including by excluding her from work events, ridiculing and isolating her, and gossiping about her. The applicant alleged that in early March 2019, following a further instance of bullying, the company told her that some of her colleagues had complained about her conduct. The company proceeded to place her on a performance improvement plan (PIP). The applicant submitted that she was subjected to further bullying conduct connected with the PIP, saying that she was not provided with the details of the complaints against her, and that the PIP, which sought changes in her behaviour, was unreasonable. On 11 March 2019 the applicant was certified unfit to return to work because she was suffering from a depressive illness. The applicant has not returned to work since then. The applicant contends that she has been subjected to further bullying during her absence.

The respondents denied that the applicant had been subjected to bullying. The company said that it had legitimate concerns about the applicant's behaviour which it has sought to address through the PIP. The company further contended that in late 2019 it advised the applicant that she was required to return to work on normal full-time duties. The applicant did not do so and on 3 March 2020 the company sent her a letter asking her to show cause why her employment should not be terminated.

The applicant was seeking urgent interim orders, directed against the company and four of the eight individuals named in her application, requiring that they not take disciplinary action against her in connection with the PIP, including in particular that they not terminate her employment, until the final hearing and determination of her anti-bullying application. The applicant contended that the correct approach for the Commission to follow in considering whether to issue the interim anti-bullying order she sought was to ask whether she has established a prima facie case, and if so whether the balance of convenience favoured the granting of an order. She further contended that if both questions were answered in the affirmative, the order should be issued. The applicant said that this is the approach that has been taken in a number of other decisions of the Commission in similar circumstances, and that the same course should be adopted in this matter.

Outcome

The Commission asked for the applicant's counsel to identify the source of the Commission's power to issue an interim anti-bullying order based only on a prima facie case or serious question to be determined, given that s.789FF of the Fair Work Act allows the Commission to make an anti-bullying order only if it is 'satisfied' that a worker has been bullied at work and that there is a risk that the bullying will continue. The applicant's position was that the source of power was s.589(2) not s.789FF, and that therefore the Commission did not need to be 'satisfied' that she had been bullied at work, or that there was a risk of further bullying conduct. The applicant contended that the Commission would only need to be 'satisfied' of the matters stipulated in s.789FF before making a final order under that provision. The applicant said that for the purpose of making an interim anti-bullying order of the kind she sought, it was enough for the Commission to be persuaded that she had a prima facie case, and that the balance of convenience was in her favour.

The Commission rejected the applicant's contention that s.589(2) is a discrete source of power that enables the Commission to make an interim anti-bullying order, and that the requirements of s.789FF need not be met. The Commission held that s.589(2) is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular 'matter before it' the Commission has no power to do anything at all under s.589(2). The 'matter' now before the Commission, for the purpose of s.589(2), is an application made under s.789FC alleging that a worker has been bullied at work. It seeks an order under s.789FF to prevent a worker from being bullied by an individual or group, and any order made in relation to this application would be an order under s.789FF. As a result, the relevant requirements of that section must be satisfied. The Commission may make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what had occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of 'bullied at work'. This would require the Commission to reach a conclusion as to whether the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety. Further, before issuing an order under s.789FF the Commission must be satisfied as to the existence of a risk that a worker will continue to be bullied at work by the relevant individual or individuals.

The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Fair Work Act allows, and it must do what the Fair Work Act requires. There have been a number of matters in which applications seeking interim anti-bullying orders in the nature of an administrative injunction have been successful, on the basis that the applicant has established a serious question to be tried, together with a favourable balance of convenience. The Commission considered Bayley and Worker A. In these matters the parties proceeded on a common assumption about the Commission's power under s.589(2) in the context of an anti-bullying application, unlike in this matter. The anti-bullying application raises a large number of allegations against the company and the named individuals. The company and the individuals deny that they have engaged in bullying conduct, or that there is any risk to the applicant's safety at work. At this point in time the Commission was not satisfied that the applicant had been subjected to bullying, or that she was at risk of further bullying. These questions remain to be determined, following a hearing or determinative conference, based on a proper consideration of the evidence.

The Commission saw no force in the contention that an interim order should be granted in the present matter because it was necessary in order to preserve the ability of the Commission to determine the substantive anti-bullying application. The determination of an anti-bullying application is not an end in itself. Such a determination is in fact a means to an end, namely the end specified in the Fair Work Act: to prevent a worker being bullied at work. The purpose is not to ensure that employment continues, or to prevent termination of employment. The Commission found no link between an order prohibiting the dismissal of the applicant and the prevention of being bullied at work. If the applicant's employment ends, any 'bullying at work' will end with it. The Commission was not persuaded that the order sought would prevent bullying at work. The application for an interim anti-bullying order was dismissed.

Read decision [2020] FWC 1404.

Procedural matters

Appeal by Omni Group Pty Ltd t/a Omni against decision of 14 October 2019 [[2019] FWC 7073] Re: Brown

Background

The appeal in this matter was lodged nine days late. The Full bench considered the application for further period of lodgment and permission to appeal.

At first instance the Commission found the employee was unfairly dismissed and ordered compensation of $12,563.00. The grounds of appeal that were submitted were that the Commission erred in accepting evidence regarding the employee's weekly earnings and length of time the employee would have remained employed.

Outcome

The evidence regarding the employee's earnings was uncontested at first instance. The Full Bench held that the Commission is entitled to rely on uncontested submissions made from the bar table to ground a factual finding. The Commission is not bound by the rules of evidence and procedure and the acceptance of uncontested assertions in submissions as to a fact may be accepted as establishing that fact.

The appellant submitted that the transcript in the matter was required to assess basis the to appeal, and this delay in receiving the transcript explained the delay in lodgement. The Full Bench did not consider this explanation to be satisfactory. The Full Bench did not consider that the original decision was affected by appealable error where permission to appeal would be in the public interest. The application for a further period to lodge the appeal was dismissed, as was the application for permission to appeal.

Read decision [2020] FWCFB 50.

Appeal by Tracey against decision of 2 September 2019 [[2019] FWC 4113] Re: BP Refinery (Kwinana) Pty Ltd

Background

At first instance the Commission dismissed the appellant’s application for an unfair dismissal remedy. A long-running industrial dispute between employees and the respondent led to the rejection of the proposed enterprise agreement and subsequent industrial action in 2018. The ‘substantial’ tension between the negotiating parties was widely publicised.

The appellant was dismissed for preparing and sharing a video entitled ‘Hitler Parody EA Negotiations’ in which Hitler was assigned the role of an unnamed BP manager in charge of bargaining strategy. At first instance the Commission found that the video was offensive and inappropriate. The Commission further found that the appellant's misconduct was a valid reason for his dismissal and was not unfair. The appellant submitted that the Commission erred in its characterisation of the video.

Outcome

The Full Bench rejected the video’s characterisation in the first instance. The Full Bench found that the video was satirical and it is ‘entirely understandable that persons in opposing camps might … engage in criticism of other party’s position and conduct’. The appeal was allowed and the decision at first instance was quashed.

Upon rehearing the Full Bench found that the appellant's dismissal was unjust, unreasonable and harsh. The Full Bench ordered reinstatement and continuity of employment, with compensation to be determined.

Read decision [2020] FWCFB 820.

Award modernisation – 4 yearly review

Penalty rates

Background

On 7 January 2020 the Full Bench issued a decision dealing with award specific penalty rates claims in the Hair and Beauty Industry Award 2010 (the Hair and Beauty Award). In a 23 February 2017 decision considering penalty rates in a number of awards [[2017] FWCFB 1001], the Commission observed the penalty rates in the Hair and Beauty Award raised issues about the level of the Sunday penalty rate and the penalty rates applicable to casual employees.

Hair and Beauty Australia (HABA) sought to vary the award by reducing Sunday and public holiday penalty rates to 150% and 225% of the minimum hourly rate, respectively. Should its first claim be rejected, HABA in the alternative sought the penalty rates for casual employees be reduced to 175% on a Sunday and retained at 250% on a public holiday (inclusive of casual loading). The claims were opposed by the Shop, Distribute and Allied Employees Association and The Australian Workers’ Union.

HABA submitted that Sunday and public holiday penalty rates apply to all types of employees regardless of the nature of their employment, and there is no differentiation of casual employees through the addition of a 25% casual loading.

In relation to its alternative position, HABA submitted there was potential ambiguity relating to rates for working overtime on Saturdays, Sundays and public holidays in that the relevant clauses provided for different rates between casuals and permanent employees. There was cogent rationale and significant merit-based reasons for varying the award so all employees would be entitled to the same penalty rates.

Outcome

The Full Bench dismissed HABA’s first claim. Whilst some considerations of the modern awards objective set out at s.134 of the Fair Work Act supported the application, there was insufficient evidence to support granting of the claim.

However, the Full Bench was still required to review casual penalty rates. In relation to HABA’s alternative claim, the Full Bench determined the case had not been made out to change the current provisions as there was no ambiguity between the clauses.

The Full Bench also noted that the present provisions were not consistent with their views, but that there was insufficient material to establish a case for change. Parties were invited to provide further materials in relation to the Saturday and Sunday penalty rates applicable to casual employees covered by the Hair and Beauty Award.

Read decision [2020] FWCFB 39.

Miscellaneous award – coverage (1)

Background

On 12 February 2020 the Full Bench issued a decision dealing with coverage provisions within the Miscellaneous Award 2010. The decision determined issues set out in a statement issued by Justice Ross, President on 6 June 2019 [[2019] FWC 3934] indicating the need to review coverage provisions of the Miscellaneous Award following the Full Bench decision in United Voice v Gold Coast Kennels Discretionary Trust t/as AAA Pet Resort.

The issue was whether coverage provisions, in particular the exclusionary provisions in clauses 4.2 and 4.3, gave sufficient clarity regarding scope of coverage. Whether the Miscellaneous Award covered all employees not covered by another modern award and who are not excluded from award coverage by s.143(7) Fair Work Act was also at issue. Several interested parties filed submissions.

Outcome

The Full Bench expressed a provisional view that the inclusion of clauses 4.2 and 4.3 resulted in the Miscellaneous Award not achieving the modern awards objective set out at s.134(1) of the Fair Work Act. To address this the Full Bench set out a provisional view that the coverage clause should be varied to delete clause 4.3 (a clause which excluded employees who are not covered by another award but performed work of a similar nature to that which has historically been regulated by awards) and exclude managerial and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

Parties were invited to provide any evidence or submissions in response to the provisional conclusion. In particular, parties were asked who consider that the deletion of clause 4.3 would result in any particular class of employee being inappropriately covered by the Miscellaneous Award to make submissions seeking a specific exclusion of the class from the award's coverage.

Read decision [2020] FWCFB 754.

Miscellaneous award – coverage (2)

Background

On 25 March 2020 the Full Bench issued a further decision in response to submissions from interested parties in response to the provisional views in the 12 February 2020 decision [[2020] FWCFB 754] (the February decision).

The Full Bench stated no party made a submission seeking the exclusion of any identified class of employee from the coverage of the Miscellaneous Award on the basis it would become inappropriately covered by the award as a result of the deletion of the current clause 4.3. No party identified any class of employees or employers, or any industry, that would be adversely affected by the variation to clause 4 of the award proposed in the provisional February decision.

The Full Bench addressed three substantive issues arising from the submissions. The first was Ai Group’s submission that the proposed variation to clause 4 would not comply with the requirement in s.143(7) that a modern award’s coverage not be expressed as covering the classes of employees in paragraphs (a) and (b) of that provision. This submission was rejected as the claim was without substance. The second was ACCI’s submission that clause 4.3 should be retained in its current form. This submission was also rejected. The third issue was whether the proposed clause 4.3 should be modified, either by the addition of a new clause 4.4 which makes specific reference to s.143(7), or by the addition of a note which refers to s.143(7). The Full Bench saw no reason to take a different approach in relation to this award. These submissions were rejected.

Outcome

The Full Bench affirmed its provisional view that the coverage clause did not meet the modern awards objective in s.134(1) of the Fair Work Act and that it should be varied in accordance with the terms set out in paragraph [59] of the February decision. In relation to the three substantive issues arising from submissions, the claims were rejected. A variation determination (PR717774) was issued with the decision, with changes to take effect on 1 July 2020.

Read decision [2020] FWCFB 1589.

Finalisation of exposure drafts (1)

Background

On 29 January 2020 the Full Bench issued a decision dealing with the process for finalising exposure drafts and consequent award variations for Tranche 3 awards. This decision was further to a decision issued on 2 September 2019 [[2019] FWCFB 6077] (the September 2019 decision) which provided an overview of the status for the first 4 yearly review of modern awards, and set out the process of finalising the exposure drafts and the consequent variation of each award. The Tranche 3 exposure drafts were published with tracked changes on 29 January 2020, to make identification of changes easily identifiable.

The September 2019 decision set out a series of amendments that had been made to the exposure drafts since their last publication. In addition, the following changes were made:

• re-inserting the current award clauses in relation to casual conversion for those awards that had pre-existing casual conversion clauses prior to the determination of AM2014/197
• deletion of all tables in the wages schedules that relate to overtime for casual employees where that issue is currently before the Full Bench in AM2017/51
• removal of the word ‘ordinary’ from ‘the reference to ‘ordinary hours’ in relation to the casual loading where the current award does not limit the application of the loading to ordinary hours
• deletion of the ‘note’ in the Schedules of Rates
• reference to the summary of hourly rates of pay schedule in the minimum rates clause converted from an information box to a Note with reference to ‘penalties’ corrected to ‘penalty rates’, and
• some formatting changes, but not content changes, will be made to the summary of hourly rates of pay schedules to facilitate subsequent variation determinations following an Annual Wage Review.

Outcome

The Full Bench expressed a provisional view that the variation of the awards in Tranche 3 was necessary to achieve the modern awards objective. In reaching that conclusion the Full Bench adopted the reasons set out in 229 relevant decisions listed in Attachment B to the decision as they are relevant to each of the Tranche 3 Awards. Interested parties were invited to comment on the provisional view, the Tranche 3 exposure drafts and draft variation determinations.

Read decision [2020] FWCFB 421.

Finalisation of exposure drafts (2)

Background

On 14 February 2020 the Full Bench issued a decision dealing with finalisation of exposure drafts and variation determinations in Tranche 2, consisting of 39 awards. The Tranche 2 exposure drafts were published on 14 October 2019. Each made amendments to the relevant awards in tracked changes to show variations since the last published copy of the exposure draft. On 14 October 2019 draft variation determinations for each award were published. In an accompanying decision [[2019] FWCFB 6861] the Full Bench expressed the provisional view that variation of the modern awards in accordance with the draft variation determinations was, in respect of each of these awards, necessary to achieve the modern awards objective. Interested parties were invited to comment.

On 24 December 2019 a further decision [[2019] FWCFB 8569] (the December decision) was issued confirming that the following amendments would be made:

• removal of any contested overtime for casual's rates from the rates of pay Schedules
• casual conversion clauses in the 28 awards that had such clauses prior to the Casual and Part-time Decision would not be redrafted during the review and the exposure drafts would be amended to re-insert the current award term
• deletion of the ‘note’ in the Schedules of Rates
• year in the title of the award will be amended to 2020
• in awards where the coverage clause refers to other modern awards, the year in the title of those awards would be amended to either 2010 or 2020
• references to summary of hourly rates of pay and summary of monetary allowances schedules converted from an information box to a note where appropriate with reference to ‘penalties’ corrected to ‘penalty rates’
• reference to the Miscellaneous Award 20XX amended to Miscellaneous Award 2010 and has been hyperlinked to the website, and
• some formatting changes to be made to the summary of hourly rates of pay schedules to facilitate subsequent variation determinations following an Annual Wage Review without changing content of the schedules.

These amendments were reflected in the final variation determinations.

This decision dealt with a number of additional amendments made to the variation determinations for Tranche 2 following the December decision.

Outcome

Changes were made in accordance with other Full Bench decisions, to the part-day public holidays schedules and annualised wage arrangements clauses. where applicable. Minor errors were corrected and changes to terminology of rates were made in a number of awards. Final variation determinations were issued for 31 modern awards in Tranche 2, and interested parties were invited to comment or file an objection to any amendments outlined in the decision by 28 February 2020. In relation to the remaining eight Tranche 2 awards, a separate statement about the Pastoral Award would be issued in due course and revised draft determinations for the remaining seven awards were published on 19 February. Parties were invited to make submissions in respect of these revised drafts.

Read decision [2020] FWCFB 690.

Key court reviews

This section provides summaries of the Full Court of the Federal Court of Australia reviews of Commission decisions.

Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

Matter reviewed: [2019] FWCFB 161

Federal Court of Australia, Fair Work Division

Application (SAD 83/2019) for prerogative relief under s.39B of the Judiciary Act 1903 (Cth) and for declarations under s.21 of the Federal Court of Australia Act 1976 (Cth) in respect of decisions of the Fair Work Commission dismissing an application pursuant to s.217 of the Fair Work Act for the variation of an enterprise agreement.

Status

Judgment was handed down in this matter on 24 March 2020 by Justices Flick, White, and Perry. The Full Court ordered that a writ of certiorari quash the decision of Anderson DP made on 17 September 2018 in [2018] FWC 5823, the order made by Anderson DP on 17 September 2018, and the decision and order of the Full Bench made on 11 January 2019 in relation to [2019] FWCFB 161. The court also ordered a writ of mandamus, requiring that the Commission exercise its jurisdiction in relation to the Applicant’s application in proceedings AG2017/5792 in accordance with law.

Read the Full Federal Court decision [2020] FCAFC 50.

Resources & initiatives

Using the science of ‘nudge theory’ to improve access and promote compliance

The Fair Work Commission has published the outcomes of its first behavioural insights project, led by the Behavioural Insights Team.

The report Promoting compliance through behavioural insights (PDF) looks at how behavioural insights techniques could be applied to reduce costs and barriers to access for employers and employees who use the Commission’s services, and improve overall compliance with unfair dismissal and enterprise agreement lodgment requirements.

Behavioural insights – also known as ‘nudge theory’ – draws on cognitive science, psychology and behavioural economics to understand the unconscious biases and motivations that influence how people think, make decisions and behave, with the goal of helping people make timely and informed decisions.

We have begun implementing a number of initiatives to improve our processes and the information we provide to the public, and will continue working to implement other recommendations in the report over the coming months.

This project is an initiative of the Commission’s What’s Next strategy which focuses on improving access and reduce complexity for our users.

Find out more:

• Media release
• Report – Promoting compliance through behavioural insights (PDF)
• What’s Next

Subscriptions & feedback

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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