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 26 Commission decisions issued between 1 July 2016 and 30 September 2016.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
In this matter the Commission had previously determined that the applicant in an unfair dismissal matter would be required to pay the respondent’s costs on an indemnity basis [ FWC 1059]. A bill of costs was submitted by the respondent and the applicant was provided with an opportunity to object to the bill of costs.
The Commission considered that a number of items in the bill of costs were instances of duplication and these were deducted. The Commission also deducted amounts claimed for business class travel rather than economy, for research and for preparation of the bill of costs. The total amount claimed by the respondent was $128,421.31, of this $15,134.62 was deducted which resulted in total costs of $113,286.69 being awarded to the respondent.
In this matter the applicant and respondent had discussions between themselves about settling a range of the applicant’s claims, including his unfair dismissal claim. Multiple deeds of settlement were drawn up and the applicant and respondent had each signed different deeds. The parties were in dispute over whether the amount of compensation agreed upon was a net amount or a gross amount. The applicant’s representative contacted the Commission and sought to have the matter referred to conciliation. The respondent’s representative objected to that proposal on the grounds that the matter had settled and there was a signed deed of release.
The Commission advised the parties it was considering dismissing the matter because there was a binding agreement and directed the parties to file material in response. The applicant submitted that there was no agreement because the parties had not agreed on the final terms of settlement. The respondent submitted that a binding agreement had been reached and that as it had complied with the deed of settlement and that the matter should be dismissed.
The Commission was unable to conclude that there was a binding agreement reached between the parties. The applicant was obliged to repay the monies already received as he had contended that there was no settlement. Directions were issued so that the application for unfair dismissal could be heard without further delay.
The applicant in this unfair dismissal matter was employed as an apprentice mechanic. He was dismissed on 4 December 2015 for breaching the respondent’s Drug and Alcohol Policy. On 17 December 2015 the respondent made an application to the Western Australia Department of Training and Workforce Development (the Department) to terminate the apprentice’s training contract. The Department terminated the training contract with effect from 22 February 2016. The applicant lodged an appeal against the Department’s decision with the Western Australian Industrial Relations Commission (the WAIRC).
The applicant filed an unfair dismissal application with the Commission on 17 March 2016, outside of the 21 day time limit. The Commission determined that were three issues which required consideration:
The respondent contended that the applicant’s appeal to the WAIRC was an application or complaint ‘under other laws’ as set out in s.732 of the Fair Work Act. The Commission considered whether the appeal was an application made ‘in relation to the dismissal’ [Birch]. The Commission held that it was clear that the applicant was seeking the same effective remedy in the matters before the WAIRC and the Commission, and was relying upon the same argument, and the same facts, in relation to the alleged serious misconduct.
The Commission found that the appeal before the WAIRC was in relation to the dismissal, and given the operation of the Multiple Actions provisions the unfair dismissal application could not be made. The unfair dismissal application was dismissed. The Commission also found that the applicant was dismissed on 4 December 2015 and was not satisfied that there were exceptional circumstances which would warrant granting an extension of time. The Commission determined that if the unfair dismissal application had not been barred by s.725 the Commission would have dismissed the application as being out of time.
In this unfair dismissal matter the respondent submitted that the applicant earned in excess of the high income threshold and was therefore not protected by the unfair dismissal legislation. The applicant submitted that he was performing the duties of a plant operator and as such he was covered by either the Guma ICRG JV Pty Ltd Base Enterprise Agreement 2013 (the Agreement), or the Building and Construction General On-Site Award 2010 (the Award), and as a result he was protected from unfair dismissal. The respondent submitted that the applicant was employed as a supervisor and therefore neither the Agreement nor the Award applied to his employment. The respondent further submitted that the applicant was not employed as a plant operator and any plant operator duties he performed were in breach of his position responsibilities.
The Commission first considered the ‘principal purpose’ test in McMenemy to determine what position the applicant was employed in at the time of his dismissal. After considering evidence from both parties the Commission held that at the time of dismissal the applicant was engaged principally to perform the role of supervisor. The Commission then considered whether the Agreement or the Award would cover a supervisor. The Commission found that the Agreement classifications did not include the role of supervisor, and the Award did not cover employees who are employed as supervisors or on a supervisory level, and as a result the applicant was not covered by either. The applicant was not protected by unfair dismissal legislation and his unfair dismissal application was dismissed.
An employee (Mr X) of the respondent had been bullied in a serious and unacceptable way by people with whom he worked. The primary question in this case was whether the applicant was involved in the bullying of Mr X. It was alleged that the applicant, with two other employees, left their workplace and deliberately drove their cars in a way to block Mr X from being able to make a right hand turn off the Golden Highway. The respondent conducted an investigation and concluded that the alleged conduct had occurred, as a result the applicant and one other employee were dismissed.
The Commission considered whether the respondent had a valid reason for the dismissal of the applicant. After consideration of the evidence, and the application of the Briginshaw standard, the Commission concluded that the applicant acted intentionally, together with two other employees, to prevent Mr X from being able to turn right off the Golden Highway. The Commission found that there was a real risk of the employees involved, and other members of the public, being seriously injured. Acting in a deliberate way to ‘box’ another motorist in on a highway gave rise to a risk of a serious motor vehicle accident.
The Commission held that it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees [Appellant v Respondent]. Out of hours conduct must have a relevant connection to the employment relationship in order to be a valid reason for dismissal [Rose v Telstra]. The Commission held that the applicant’s conduct, in making a plan or agreement with the two other employees to block Mr X on the highway, was conduct that took place at the workplace and was therefore not ‘out of hours conduct’. The Commission found that the conduct engaged in on the Golden Highway in relation to Mr X had a relevant connection to the employment relationship. The Commission was satisfied that the respondent had a valid reason for the applicant’s dismissal related to his conduct, including its effect on the safety and welfare of other employees. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.
In this matter the applicant claimed that her dismissal was unfair because:
The respondent asserted the applicant’s dismissal was due to her consistently low performance following a series of warnings and as a result the dismissal was not unfair.
The Commission was satisfied that the respondent had a valid reason for dismissal and that the applicant had been notified of that reason, however the Commission found that the applicant was not given the opportunity to respond to her dismissal. The Fair Work Act does not mandate any particular number of warnings that must be given to an employee prior to dismissal, or the form that a warning must take. The Commission held that in determining whether an employee has been warned of the risk of dismissal, the approach was to consider whether the warning identifies relevant aspects of the employee’s conduct or performance which is of concern, and makes it clear that their employment is at risk unless the conduct or performance is addressed.
The Commission found no evidence that the applicant was told her employment was in jeopardy and could not be satisfied as to the validity of any warnings. On balance the Commission was satisfied that the dismissal was unfair. The Commission found that the process of giving warnings followed by the respondent left much to be desired, the applicant was not properly informed of the consequences of poor performance or that her employment was in jeopardy. The Commission found the dismissal was unfair and ordered compensation of $1302.16 plus superannuation.
At first instance the Commission refused the appellant an extension of time to lodge his unfair dismissal application. The Commission held that the dismissal took effect on 14 January 2016 and the application was lodged on 8 February, four days outside the 21-day period. The appellant appealed this decision and in his appeal raised the question of whether a dismissal could be said to have taken effect before it was communicated to the relevant employee, in particular whether the mere receipt of a communication was sufficient to constitute communication of dismissal, where the employee had not read it immediately upon receipt. The appellant had received notification of his dismissal by email, sent on 18 January to his wife’s email address.
The Full Bench was satisfied that the appellant’s employment could only have been effected on 18 January, or the day after when he actually read it. The respondent placed reliance upon a letter sent to the appellant on 25 November 2015 as constituting a notice of dismissal with effect from 14 January, by purporting to give two alternative conditional dates of dismissal that were either not fulfilled or identified. The Full Bench found that the letter did not satisfy the criteria for a conditional notice of termination, as the date of dismissal claimed by the respondent was not one which was capable of being identified in advance by the appellant, and could not therefore constitute the proper provision of notice.
The Full Bench held that the evidence did not demonstrate that the appellant had any basis to think that his dismissal would occur prior to 18 January. The Full Bench did not identify any other basis for a conclusion that the dismissal took effect on 14 January. The Full Bench held that finding at first instance was in error and that the dismissal took effect not earlier than 18 January, as a result the appellant’s unfair dismissal application was lodged within the prescribed 21 day period and no extension of time was required. The appeal was upheld, the Order and Decision at first instance quashed and the application was referred for hearing.
In this matter the applicant lodged an unfair dismissal application, which was the second of two, eight weeks late. The Australian Manufacturing Workers’ Union (the AMWU) represented the applicant for the first application, which was lodged one day late. The AMWU later lodged a Notice of Discontinuance and the planned jurisdictional hearing was vacated. The AMWU told the applicant that the Commission had dismissed the application because it was lodged out of time. After this happened the applicant sought external legal advice and then lodged a second unfair dismissal application.
The Commission considered whether there were exceptional circumstances to warrant an extension of time. The applicant argued that the reason for delay in lodging the second application was the conduct of the AMWU in relation to the first application. The Commission required the applicant to provide credible reasons for the whole of the period of the eight week delay, not just part of it. The applicant was not required to provide reasons for every single day but could not leave a significant part of the delay unexplained [Cheval Properties]. The Commission examined discrete periods within the period of the delay to ascertain whether the applicant had provided credible reasons for the delay. The Commission found that representative error only explained part of the delay, but that the AMWU’s conduct went beyond simple representative error and explained much more of the delay. The Notice of Discontinuance had been filed without the applicant’s authorisation and the AMWU then lied to the applicant when it informed the applicant that the Commission had dismissed the first application because it was filed out of time. The Commission found that the AMWU had misled the applicant and caused him to act on a false premise. An analysis of the applicant’s conduct, and those he interacted with in relation to the unfair dismissal claim, led the Commission to conclude that exceptional circumstances existed which were not of the applicant’s making, but which significantly impacted on him and caused him to lodge the second unfair dismissal application late. An extension of time to lodge the second application was granted.
This application for an order to stop bullying was made by a teacher who was also the OH&S representative at the school. The applicant alleged that she had been bullied at work by the Principal of the College. The Principal was appointed in 2013 with a mandate from the Board of Mercy Education to effect change and arrest declining enrolment; however some staff were resistant to the change and preferred the status quo. The applicant gave evidence that she became increasingly concerned about Mercy Education’s bullying policy and in May 2013 raised the issue of bullying and the need to update the policy. The College’s Business Manager agreed to review the bullying policy by the end of the year however this did not eventuate; the applicant raised the issue again in April 2014. The Deputy Principal was listed in the bullying policy as the complaints officer however there was no Deputy Principal at the College, as the previous Deputy Principal had resigned in 2013 after the Principal had been appointed.
The bullying policy was finally revised and re-issued in 2015 after the applicant filed complaints in December 2014. The applicant identified a number of incidents occurring from late 2013, and continuing after her return from long service leave in mid-2015, which she maintained was repeated unreasonable behaviour by the Principal. The Commission concluded that four of the incidents which the applicant complained about, taken together, amounted to repeated unreasonable behaviour. The Commission found that the conduct was likely to have caused the applicant distress and that the behaviour created a risk to the health and safety of the applicant. The Commission found that the applicant was bullied at work.
The Commission then considered what orders (if any) should be made, finding the relationship between the applicant and the Principal was an obviously tense one, involving some mutual animus. The Commission held that interpersonal relationship disputes are best resolved through the efforts of the parties, and perhaps assisted by some form of facilitation or mediation, and that any orders would likely favour one side over the other. The Commission held that some form of reconciliation was much more likely to produce a lasting, positive improvement in the working relationship between the parties than any order could. The Commission proposed that the parties engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship, and engaging in a dialogue that would accommodate an ongoing professional working relationship, and a safe working environment. If the parties were unwilling to engage with each other, then the Commission advised that either party could request the expeditious hearing and determination of the question of whether orders should be made.
The applicant in this case made an application for an order to stop bullying conduct she alleged had taken place, and may in future take place, in her workplace. The applicant was a teacher employed to work at a Victorian Government School conducted by the Department of Education and Training (Victoria) (the Department). The Department contended that the application should be dismissed on three principal grounds, namely:
The applicant contended that the Department was her employer, and was a ‘constitutionally covered workplace’, as the Department through actions including its Principle and Governing Council held itself out to be a corporation. The applicant submitted that the activities of the Department represent relevant trading activities and comprised in excess of 15% of its overall activities. The applicant further submitted that the Department was a trading corporation under the Fair Work Act, and that the Department was a large State entity with multiple employment options and should be distinguished from a ‘small private sector operation’. The applicant also indicated that she was intending to pursue an unfair dismissal application and that it would be inappropriate for the Commission to dismiss her anti-bullying application.
The Commission held that for the anti-bullying jurisdiction to be engaged, the Commission must find that the worker was bullied at work within the meaning of the Fair Work Act, and that the conduct must have taken place whilst the worker was at work in a constitutionally-covered business. The Commission considered the most recent referral laws under the Fair Work (Commonwealth Powers) Act 2009 (Vic) and found that the anti-bullying provisions in the Fair Work Act would be considered an ‘occupational health and safety’ matter which was ‘excluded subject matter’. The Commission also considered whether the work was conducted at a ‘constitutional corporation’, finding that the Department was an emanation of the Crown in right of the State of Victoria and was not an incorporated entity. The Commission held that the Department was not a trading (or financial) corporation even if it engaged in trading activities and corporate style affairs. The Commission found that the alleged conduct would not fall within the scope of the anti-bullying provisions and because the Commission had no jurisdiction, the application was dismissed.
This matter related to an application to deal with a dispute under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (the Agreement). The dispute concerned the question of whether there was any impediment arising from the Agreement to the Metropolitan Fire and Emergency Services Board (MFB) implementing a decision it made to terminate the employment of a recruit firefighter, Mr Duggan. When the MFB notified Mr Duggan of its intention to terminate his employment, he was within a three month probationary period of employment. The case made by the MFB was that Mr Duggan was an unsuitable employee for ongoing employment past the end of a probationary period.
During the recruitment process, Mr Duggan was asked to obtain and provide to the MFB a National Police Certificate. The certificate provided was sourced from Victoria Police and was dated 16 September 2015, and advised that ‘[a]t the date of issue there are no disclosable court outcomes recorded’. After commencing employment with the MFB Mr Duggan was the subject of adverse findings against him by the New South Wales Civil and Administrative Tribunal (NCAT), and those findings became known to his work colleagues. The NCAT decision concerned Mr Duggan’s practice as an osteopath in New South Wales and complaints by the New South Wales Health Care Complaints Commission (HCCC) of unprofessional conduct and professional misconduct. Mr Duggan had been charged with a number of counts of indecent and sexual assault relating to female patients in 2010 and was acquitted in the subsequent criminal proceedings in 2012.
The matter became the subject of a dispute between the parties, including a formal dispute for the purposes of the Agreement notified to the MFB by the United Firefighters’ Union of Australia (UFU) on Mr Duggan’s behalf. Mr Duggan was stood down and required not to report for duty until further notice. The MFB decided that Mr Duggan’s employment should be terminated and forwarded him a letter to that effect. Exchanges between the UFU and the MFB failed to resolve the matter. Mr Duggan and the UFU (the respondents) put forward that the MFB had failed to follow the proper processes of the Agreement insofar as it provided processes for consultation and termination of employment. The respondents argued that the MFB was not entitled to terminate Mr Duggan for the reasons it had chosen because it failed to consult with them about matters which the respondents said were unilateral alterations to the MFB Recruitment Police Criminal History Check Policy.
The Commission considered that the proper characterisation of the dispute was:
It was necessary to consider whether the MFB followed the processes mandated by the Agreement in relation to its intention to dismiss Mr Duggan. The Commission found that the evidence did not lead to a finding that the MFB sought to unilaterally amend its Police Check Policy by introducing a new and additional criterion. The Commission held that by seeking to terminate Mr Duggan’s employment within his probationary period for events that occurred prior to employment, which came to its notice after employment had commenced, and which were not reported by Victoria Police in the National Police Certificate it issued, the MFB sought to depart from the well accepted meanings of ‘probation’ and ‘probationary employee’.
The Commission considered that the dispute was not resolved, with there being a need for either consultation over changes to the MFB’s use of ‘probation’ and ‘probationary employee’ or, if that was considered not appropriate, for appropriate action to deal with Mr Duggan’s conduct after employment commenced. The threshold issue was whether Mr Duggan’s conduct, at any stage, warranted dismissal. The Commission did not consider that it did, finding that perhaps while Mr Duggan should not have been employed in the first place, no warrant existed from his pre-employment conduct to dismiss him. The Commission held that Mr Duggan’s conduct after employment commenced, in his failure to notify the MFB of the NCAT decision, while not to be condoned was not sufficient to dismiss him, for the reason it did not undermine his suitability for ongoing employment or the viability of continuing the employment relationship. The Commission held that the MFB failed to ask pertinent questions of an applicant about matters disclosed to it prior to employment, finding Mr Duggan’s work as an osteopath was demonstrably professionally unsound as he had been charged with criminal offences in relation to his professional conduct.
The Commission found that the NCAT order prohibited Mr Duggan from providing any ‘health service’ until such time as a reinstatement order was made by NCAT. Mr Duggan was also prohibited from performing Emergency Medical Response (EMR) work for the MFB, either now or in the future, unless and until the NCAT order was amended or revoked. Mr Duggan has appealed the NCAT decision. The MFB submitted that the EMR function was a core function of the MFB. The Commission held that Mr Duggan not being available for EMR work would not be a ground for the termination of his employment during ‘probation’ or as a ‘probationary employee’.
The Commission found that Mr Duggan’s failure to bring the NCAT decision to the MFB’s attention was likely an act to conceal the decision from his new employer, considering that Mr Duggan can and should be sanctioned for failing to have brought the decision and Orders to the MFB’s attention. The Agreement provides procedures for counselling and discipline (clause 26), and termination of employment (clause 27). The Commission considered it to be appropriate, and consistent with the parties’ legal rights and obligations under the Agreement, for Mr Duggan’s probationary period to be extended for between three and six months. The Commission also considered it to be consistent with the Police Check Policy and appropriate in all the circumstances for Mr Duggan to be formally asked by the MFB to disclose in writing all charges and arrests since turning 18 years of age, whether or not they were withdrawn or he was acquitted, and that he be required to respond to that enquiry by way of a Statutory Declaration. It was further considered to be consistent with the Agreement and appropriate that Mr Duggan be warned in writing, in the form of a first and final warning, that any future misconduct by him may lead to his dismissal, and that such warning be kept on file for 12 months from the date on which it is issued and acknowledged by Mr Duggan. The Commission directed the parties to confer on these matters and endeavour to agree to the form and substance of each, providing that in the absence of agreement the matter would be relisted for further hearing.
This case was a dispute over whether the respondent had the ability to unilaterally decline to increase the base wage rate value it used in its Incentive Scheme calculations, in line with the negotiated wage increases in the Coles Kewdale Distribution Centre WA Agreement 2014. The applicant submitted that there must be agreement between the parties for a revision of the Incentive Scheme and therefore there was also a requirement to consult. The applicant stated that there was no agreement and that the consultation was insufficient.
The respondent submitted that the application could not be dealt with by the Commission because it sought a binding determination on the rights or obligations that arose from the agreement, as opposed to the Commission forming a view about legal rights for the purpose of taking some other step in resolving a dispute within the Commission’s jurisdiction. The Commission held that it had the ability to determine the meaning and effect of the agreement’s terms, even where it involved a finding on the legal rights and obligations under the agreement. The respondent submitted that there was no requirement to consult because there was no change to the form and structure of the Incentive Scheme. The Commission held that the respondent did not revise the form and structure of the scheme.
This matter was an application to deal with a dispute about matters arising under the Tidewater Marine Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (the Agreement). The dispute settlement procedure (the DSP) of the Agreement states that the employer, officers, and the Australian Maritime Officers’ Union (the AMOU) agree to strictly adhere to the DSP so that any dispute shall be promptly resolved by conciliation in good faith.
A preliminary issue for resolution by the Commission was whether the application had been properly made in accordance with the DSP of the Agreement and s.739 of the Fair Work Act, and therefore whether the Commission had jurisdiction to deal with the application. In considering whether the application had been properly made the Commission examined the status of the AMOU, the status of the individual employees, and whether the procedures in the DSP had been complied with. The Commission held that the parties to the Agreement could only be the employer and the employees, pursuant to s.172(2)(a) of the Fair Work Act and subclause 4.1 of the Agreement. Subclause 12.1 of the DSP stated that the employer and employees agreed to undertake ‘all necessary steps to ensure that the following procedures apply in the event of a grievance or dispute’. The only procedure with substance relating to non-shipboard disputes was that a party should notify the other as soon as possible of any industrial matter which might give rise to an industrial dispute in subclause 12.2 of the DSP. Subclause 12.6 of the DSP enabled the right of either party to refer the dispute to the Commission.
The Commission found that the status of the AMOU was that of an intermediary or representative, the only persons who are able to refer a matter to the Commission was the employer or an employee consistent with the provision in subclause 12.1 of the DSP. The AMOU submitted, and proposed witness evidence, concerning three persons who were in dispute with the respondent who were not employees of the respondent at the time that the application was made.
The AMOU submitted that the matter in dispute was that three former employees were not provided with the relevant period of notice of termination, or payment in lieu thereof, as specified in the Agreement. The Commission’s jurisdiction to deal with a dispute is derived from the DSP. The Full Bench decision in Goonyella was considered regarding the status of employees, where the Full Bench held that an ‘employee’ is a current employee, not a former employee. The word ‘employee’ should be given its plain and ordinary meaning. An agreement does not, and cannot, apply to employees who are no longer engaged in employment. Subclause 12.7 of the DSP envisages that a dispute is occurring at a time when an employee is employed and, pending resolution of dispute, work is to continue as normal. The Commission is only able to deal with or arbitrate a dispute on application by a current employee. As the three employees were not employed by the respondent at the time of the application the Commission had no jurisdiction to deal with the application. The application was dismissed.
An application was made for a protected action ballot order (PABO). The respondent objected to the application on the basis that the applicant had not genuinely tried to reach agreement. The respondent submitted that the preconditions in s.443(1)(b) of the Fair Work Act were not met as the applicant had refused to provide reasons for rejecting multiple proposals advanced by the respondent and consistently delayed bargaining. The respondent further submitted that if a PABO was made, written notice to commence industrial action should be longer than three working days.
The Commission considered that the applicant’s failure or refusal to accept the respondent’s claims did not mean that the applicant had not been trying to reach agreement. The Commission held that this was not an unusual phenomena of bargaining, the totality of the circumstances had to be considered and found that no evidence was put forward to demonstrate that the applicant had been dragging its heels. The Commission was of the view that the applicant was genuinely trying to reach an agreement. The Commission found that the respondent had failed to discharge the onus of establishing that exceptional circumstances existed to extend the period of written notice. The protected action ballot order was issued.
The Australian Workers’ Union (the AWU) made an application to the Commission for a majority support determination. The AWU relied on a petition signed by employees in May 2016 to establish a prima facie case that a majority of employees who would be covered by the enterprise agreement proposed by the AWU wanted to bargain with their employer.
Once the respondent became aware of the application in June 2016 it conducted its own ballot of employees. The respondent ballot provided three options to employees, the result of the ballot was:
The respondent submitted that the applicant had posed the wrong question on its petition, and that some employees may have signed the petition without it having been explained. The respondent submitted that its ballot should be preferred over the applicant’s petition, as it was conducted more recently. The respondent further submitted that those who chose to abstain from voting should be taken to have elected against bargaining, however the respondent conceded that employees had not been informed that a vote to abstain would be considered as a vote against bargaining.
The Commission was of the view that it would be equally wrong to attribute a ‘no’ vote to all those who abstained as it would be to attribute a ‘yes’ vote to those who abstained. The Commission was also of the view that the toolbox meetings conducted by the respondent were one-sided and did not fully inform employees of the facts. The respondent submitted that some employees who had signed the applicant’s petition had subsequently changed their minds. The Commission held that any ballot or petition only represents an employee’s view at a particular point in time. The Commission was satisfied that the time that the petition was taken by the AWU represented the most appropriate time for determination of whether majority support for bargaining existed. The Commission was satisfied that a majority of employees supported bargaining for an enterprise agreement and made a majority support determination.
In this matter Swinburne University of Technology appealed a decision in which the Commission made a protected action ballot order (PABO) in relation to a proposed single-enterprise agreement after considering the Full Bench decision in Maersk. The Commission had found that the appellant had agreed to bargain with the National Tertiary Education Industry Union (the NTEU) with respect to a proposed multi-enterprise agreement, and that there had been a notification time for the proposed enterprise agreement.
The grounds put forward for the appeal included that the appellant had never agreed to bargain or initiated bargaining for a single-enterprise agreement; that there was no notification time; and that the decision at first instance was in error in treating Maersk as determinative of the outcome. The Full Bench found it was appropriate to grant permission to appeal and that it was in the public interest to do so because the appeal challenged the Commission’s power to make a PABO and may ultimately determine whether Pathways and Vocational Education (PAVE) teaching staff were entitled to take protected industrial action pursuant to the PABO. The Full Bench held that the appeal raised a novel question concerning the interpretation and application of s.437(2A) of the Fair Work Act which may arise again in future cases.
The Full Bench was of the view that the application of the reasoning and conclusions in Maersk to the facts of this case must be approached with caution. Maersk involved competing proposals for a single-enterprise agreement and involved no consideration of how s.437(2A) might apply in connection with a proposed multi-enterprise agreement. The Full Bench did not consider that Maersk could be read as automatically determinative of the outcome of this matter, contrary to the approach taken in the decision at first instance.
The Full Bench found it was difficult to see how a notification time involving multiple employers and their employees could be considered to relate to a proposed single-enterprise agreement involving only one of those employers and its employees under s.437(2A). The Full Bench concluded that s.437(2A) was not to be interpreted on the basis that the notification time for a proposed multi-enterprise agreement could be treated as being ‘in relation to’ a proposed single-enterprise agreement. The Full Bench found that the appellant had never agreed to bargain, and had never initiated bargaining for a single-enterprise agreement with respect to its PAVE teaching staff, and that meant that the respondent was not permitted by s.437(2A) to apply for a PABO with respect to its proposed single-enterprise agreement.
Permission to appeal was granted and the appeal was upheld, the decision and order at first instance were quashed. The Full Bench emphasised that the choice of an employer to pursue a multi-enterprise agreement did not exclude employees from ever taking protected industrial action in support of a proposed single-enterprise agreement. If an employee bargaining representative proposed a single-enterprise agreement and the employer refused to bargain because it preferred a multi-enterprise agreement, then there was no impediment to an application being made by the bargaining representative for a majority support determination.
An application was made by Melbourne Polytechnic for the approval of the Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016. The Commission considered whether a valid Notice of Employee Representational Rights (Notice) was given to the relevant employees. The Notice issued to the employees proposed to be covered by the agreement replaced the words ‘please speak to either your employer…’ under the heading ‘Questions?’ to ‘please speak to Joy Drever Ext. 1261…’. Melbourne Polytechnic and the bargaining representatives named in the application (together, the Parties) conceded that the Notice differed from the version in Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations) however argued that the Commission had a discretion to find a Notice that deviated from Schedule 2.1 could be valid in circumstances where the deviation was ‘minor, insignificant and immaterial’ [AMOU] and [DP World Melbourne]. The Parties contended that the mere inclusion of Ms Drever’s name and contact number did not change the intent or effect of the language in the version of the Notice prescribed by the Regulations, and indeed was more helpful than simply using the word ‘employer’. The Commission considered Peabody and found that the Notice did not conform with s.174(1A)(a) of the Fair Work Act. Consistent with Peabody, the Commission found that the Notice was invalid and therefore no Notice, as required by the Fair Work Act, was given. The Commission held that the failure to issue a complying Notice meant that the application for approval of the agreement must fail, and dismissed the application.
The Construction, Forestry, Mining and Energy Union (the CFMEU) made an application for the Commission to resolve a dispute regarding CFMEU permit holders exercising right of entry at premises occupied by BHP Billiton Nickel West (BHP). BHP submitted that the Commission lacked jurisdiction to hear the matter as there was no relevant dispute between the parties. BHP further submitted that hearing the dispute and making any orders would effectively involve an exercise of judicial power and not arbitral power.
The CFMEU sought right of entry for permit holders before and after shifts. BHP submitted that this did not fall within the scope of ‘other breaks’ as referred to in s.490(2) of the Fair Work Act. The Commission held that the determination of this issue would involve statutory interpretation, requiring an exercise of judicial power. The Commission was satisfied that the CFMEU sought a bare declaration of existing rights rather than the resolution of a dispute, and that the application sought the enforcement of an existing right, rather than the creation of a new right, which would involve an exercise of judicial power. The Commission determined that this application was beyond the jurisdiction of the Commission and must therefore be dismissed.
For completeness, if there was jurisdiction to determine this dispute, the Commission indicated that it was not satisfied that ‘other breaks’ included the periods before or after shifts.
In this matter the applicant sought orders to restrict the frequency and times at which entry was exercised by permit holders of the National Union of Workers (the NUW) under s.484 of the Fair Work Act, submitting that the visits were a drain on their resources. The NUW submitted that restrictions would impede permit holders visiting the Site, and employees would be prevented from discussing or obtaining advice about enterprise bargaining or other workplace issues.
The Commission was not persuaded that the visits were particularly onerous, unreasonable, or caused significant drain on the applicant’s resources. The applicant’s requirement to escort permit holders was a self-imposed one, borne out of poor relations between the applicant and the NUW. The Commission considered that the requirement to escort was not particularly time consuming, and was not satisfied that the frequency with which permit holders entered the applicant’s premises for discussion purposes would require an unreasonable diversion of the applicant’s critical resources. The application was dismissed.
This case related to an application to deal with a dispute in accordance with the dispute settlement procedure in the Monash University Enterprise Agreement (Academic and Professional Staff) 2014. The Commission issued directions to the parties to file submissions regarding their desire to be represented and any objections regarding same. Monash University sought to be represented by a lawyer or paid agent pursuant to s.596(2)(a) of the Fair Work Act, the National Tertiary Education Industry Union (the NTEU) opposed this request. Monash University argued that the matter was a dispute of complex nature and significant uncertainty, and that representation would enable the matter to be dealt with more efficiently. The NTEU submitted that the scope of the dispute was clear and not complex, and that Monash University had adequate internal resources to deal with the matter.
The Commission was of the view that the dispute before it was not complex, finding that the materials filed by the NTEU contained no witnesses or voluminous material. The Commission found that the matter was not sufficiently complex to enliven s.596(2)(a), and as Monash University had made no submissions with respect to ss.596(2)(b) and (c), the request was refused.
Two days after the refusal Monash University, in a highly unusual move, made a further submission seeking that the Commission reverse its earlier decision and grant it permission to be represented by a lawyer. The grounds relied on included that the Commission now had the material and witness evidence sought to be relied upon by Monash University, and that this material was extensive and that the matter could be dealt with more efficiently with representation. The NTEU again opposed the application. The Commission held that Monash University was a large employer, with a relatively large human resource department, and was not a stranger to matters before the Commission.
A party to proceedings in the Commission should not assume that permission to be represented by a lawyer or paid agent will be granted. The Commission was not convinced that the matter would be dealt with more efficiently given the complexity of the matter. The Commission was also not convinced it would be unfair not to allow Monash University to be represented, taking into account fairness between the parties. The Commission held that Monash University was attempting to portray ss.596(2)(a) and (c) of the Fair Work Act as providing a presumption that permission would be granted, or that there were relatively simple ways of getting around the presumption that clearly exists. Permission to be represented by a lawyer was again refused.
In this matter, at first instance the Commission was not satisfied that the appellant’s dismissal was harsh, unjust or unreasonable and dismissed his application. During the period of the appellant’s employment, the respondent had issued the appellant with three warnings concerning drug use in the workplace. The appellant had engaged in a drug rehabilitation program and was informed that any repeat offences would result in his dismissal. The appellant was dismissed as a result of a car accident, where after investigation the respondent concluded that the appellant had consumed synthetic cannabis prior to, or during his journey home from work.
The appellant raised nine grounds of appeal, at the core of the dispute was whether an alleged admission made to police should have been regarded in evidence. At the time of the accident, the appellant had allegedly admitted to police that he had used ‘synthetic cannabis’. The appellant relied on the Pfitzner principle and submitted that the Commission had erred by not taking such common law principle into consideration. The appellant argued that at the time he allegedly made the admission he was incapable of exercising a sensible judgement about whether or not he should make a statement to the police.
The Pfitzner principle is reflected in s.90 of the Evidence Act 1995 (Cth) and is expressly limited in its application to criminal law proceedings. The appellant argued that the Pfitzner principle should apply in unfair dismissal as it is a principle that guides a ‘fact finding exercise’. The Full Bench rejected this contention, finding that the Pfitzner principle was ‘founded on the protection of the rights and privileges of an accused person in criminal proceedings’. The Full Bench held that there was no application of the Pfitzner principle in unfair dismissal proceedings and dismissed the appeal.
In this application for unfair dismissal remedy the applicant was dismissed for serious misconduct based on allegations of sexual harassment toward a number of cabin crew members. The applicant sought the production of documents from the respondent. The respondent objected to the order being made with respect to the classes of documents listed in the application in items 1, 3 and 4 based on legal privilege. The respondent further submitted that order for documents was nothing more than a ‘fishing expedition’. Both parties agreed that the principles set out in Commissioner of Taxation v Pratt Holdings Pty Ltd applied: ‘if the dominant purpose for which a document comes into existence is to get legal advice, the document is privileged’, and ‘the time at which the “dominant purpose” is determined is the time the document came into existence’.
The Commission found from the material provided by the parties that the applicant was terminated due to his conduct. In considering the relevance of the documents sought, the Commission found that the applicant’s employment was terminated following an investigation into various allegations, and that the applicant had confined his order for the production of documents only to the investigation which led to his dismissal. The Commission found that the applicant’s request for documents was not a ‘fishing expedition’ but was appropriately narrow and relevant to his dismissal.
The Commission then considered whether the documents sought attracted legal advice privilege as per Pratt. The Commission found that the documents had to be created regardless of any intention to seek advice, also finding that there may have been some parts of those documents that were only created for the purpose of receiving legal advice. The Commission found in the first instance that the documents in items 1, 3 and 4 were to be provided to the Commission in unredacted form, the Commission would then determine whether part or all of the documents attracted legal professional privilege.
On 29 June 2016 the settlement of an unfair dismissal matter was reached at conciliation and terms of settlement were sent to parties for execution. The applicant subsequently emailed the Commission on 4 July 2016 advising that he did not wish to go ahead with the settlement and elected to proceed to arbitration.
A Notice of Discontinuance was filed by the applicant’s representative on 8 July 2016. The Commission received an email from the applicant’s representative on 15 July 2016 suggesting that they may have filed the Notice of Discontinuance in error and confirmed the applicant’s intention to proceed to arbitration. The applicant also confirmed in writing of his intention to proceed.
The Commission emailed the applicant on 26 July 2016 directing him to file and serve any evidence and submissions in support of his application to revoke the discontinuance. The applicant did not contact the Commission nor provide submissions. The Full Bench decision in AB v Tabcorp Holdings Limited was considered and held to be binding. The Commission does not have the power to set aside a notice of discontinuance, the application was dismissed.
The applicant in this unfair dismissal matter had his position declared redundant in May 2016 and he received a redundancy payment of $127,000 plus accrued entitlements. The respondent objected to the unfair dismissal application on the basis that the dismissal was a genuine redundancy.
The respondent’s representative sought leave to appear under s.596 of the Fair Work Act. The applicant opposed the granting of leave, objecting to the level of complexity in the matter. The Commission granted leave to appear, finding that a lack of sufficient ‘legal and/or workplace relations expertise’, and that any failure by the Commission to address the condition of ignorance of the law, on any discrete finding, may lead to a ‘constructive denial of procedural fairness’. Following the Full Bench decision in Titan Plant Hire Pty Ltd v Van Malsen the Commission found that the availability of detailed materials in the public domain cannot be relied upon to inform unrepresented parties to the requisite degree. The Commission held that ‘workplace relations expertise’ requires ‘professional (not incidental or infrequent) engagement with the statutory regime’. A level of expertise short of this standard may warrant permission to appear being granted, unless the Commission undertakes to guide an unrepresented party to each relevant statutory matter, interpretation and authorities.
The Commission then considered meaning of ‘genuine redundancy’ and whether the applicant’s position would no longer be performed by anyone because of changes in operational requirements. The Commission found that the respondent had complied with the consultation obligations under clause 51 of the James Cook University Enterprise Agreement 2013–2016. As no other alternative position that the applicant could have reasonably redeployed was identified, the Commission found that the dismissal was a genuine redundancy and the unfair dismissal application was dismissed.
At first instance the Commission dismissed the appellant’s general protection application after finding that the application had been made after a complaint had been lodged with the Australian Human Rights Commission (AHRC) and was in breach of s.725 of the Fair Work Act.
Following the termination of her employment, the appellant lodged a complaint with the AHRC against her employer in relation to her dismissal, and a general protections application against two named persons in relation to alleged breaches of ss.362 and 550 of the Fair Work Act. The appellant applied for permission to appeal the decision and order of the Commission.
The appellant submitted that s.725 was not engaged in these circumstances as her AHRC complaint and her general protections application involved separate respondents, separate causes of action, and separate relief.
As the subject of this appeal had not been considered by a Full Bench of the Commission, and as the issue potentially had broad significance, the Full Bench found that it was in the public interest for the issue to be considered in detail by a Full Bench. Permission to appeal was granted.
Under s.156 of the Fair Work Act the Commission is required to review all modern awards every four years. All material in relation to the 4 yearly review, including a detailed timetable, is available on the Commission’s website. As part of the 4 yearly review, the Commission is redrafting all modern awards to make them more consistent and easier for employers and employees to use. A dedicated page of each of the awards under review has been created.
As a part of the 4 yearly review of modern awards, the Commission is dealing with a number of applications to vary penalty rates in various awards in the hospitality and retail sectors. The final hearings in the Penalty rates case were held on 11–15 April and final submissions in this matter were received on 21 June 2016.
The Full Bench issued a Statement and directions [ FWCFB 6460] on 8 September 2016 concerning two outstanding issues. The Full Bench sought some clarification from Ai Group regarding evidence in relation to the Fast Food Award 2010. The second concerned the status of the various claims before the Full Bench. Further submissions were received from parties in response to this statement.
On 28 September 2016 the Full Bench updated and republished three statistical reports [ FWCFB 6940]. The Full Bench proposed to take this material into consideration of the various matters before it. Parties were then invited to make submissions on the statistical reports.
In decisions in June and September 2015 the Commission determined model clauses in respect of:
In May 2016 the Full Bench focused on whether it was appropriate to vary particular modern awards to insert the model terms. All interested parties were provided with an opportunity to make submissions and adduce evidence. The Full Bench proposed to vary a number of modern awards to insert the various annual leave model terms determined in the June and September 2015 decisions.
The May 2016 decision also proposed some plain language redrafting of three of the model terms:
The changes proposed were intended to make these terms easier to understand; they were not intended to change the substantive effect of any of the model terms after they underwent plain language redrafting. Interested parties were provided with an opportunity to notify the Commission if they wished to contest the Full Bench’s provisional views in respect of any of these matters. No notifications were received so as a result the Full Bench gave effect to the provisionally expressed views. In June 2016 draft determinations were published on the Commission website. Final determinations varying modern awards were issued on 29 July 2016. A number of awards, including the maritime awards remained outstanding. These awards were considered in a decision issued on 22 September 2016 [ FWCFB 6836]. Draft determinations were published with the decision.
The July 2015 Award Flexibility decision dealt with a number of claims to vary certain modern awards in respect of time off in lieu of payment for overtime (TOIL) and make up time. Interested parties were provided with the opportunity to make submissions in relation to content of the provisional model TOIL term and the proposition that the model TOIL term be inserted in 113 modern awards.
The model TOIL term was then redrafted to reflect plain language principles. On 8 July 2016 the Full Bench issued a decision [ FWCFB 4258] which finalised the plain language model TOIL term. A subsequent decision of 11 July 2016 varied 44 awards to include the model TOIL term [ FWCFB 4579]. After a period of consultation for awards with specific issues, a further decision was issued on 31 August 2016 [[2016 FWCFB 6178] varying another 8 awards to include the model TOIL term.
Hearings were conducting from 15–19 August for the common claims in the part-time and casual employment matters. Approximately 35 witnesses were cross examined and closing submissions were heard at these hearings. Final submissions were filed in August and September 2016.
Directions hearings for award specific claims and the SDA claim were conducted in August and September 2016. These matters are yet to be concluded.
The hearing of the National Disability Insurance Scheme issue affecting employers and employees under the Social, Community, Home Care and Disability Services Award 2010, the Aged Care Award 2010 and the Nurses Award 2010 remains outstanding. Oral closing submissions will be heard on 28 November 2016 in relation to this matter.
This common issue matter deals with several issues in relation to payment of wages:
Conciliation conferences were held on 27 July 2016 in relation to these issues. Submissions regarding the annual leave loading issue were filed in August 2016. Draft determinations regarding the timing of payment on termination were published on 8 September 2016 and parties were invited to make submissions. These matters were listed for hearing on 21 October 2016.
Submissions and expert evidence were filed in relation to the Family and domestic violence matter in September. These matters will not be heard until November/ December 2016.
The Commission issued statements on 6 July 2016 [ FWC 4495]. Submissions were filed on 28 July 2016 in response to the statement.
Further to the Plain language modern award pilot (the Pilot) undertaken by the Commission to produce a plain language draft of the Pharmacy Industry Award 2010 (the Pharmacy Industry Award), the Commission has adopted a plain language drafting approach to new provisions developed as part of the 4 yearly review of modern awards.
The Commission has treated award-specific terms in a different way to general terms which have broader application across modern awards during the Pilot and since its conclusion. A Full Bench has been constituted to oversee the Commission’s plain language re-drafting of:
The Commission has sought submissions from interested persons on re-drafted standard provisions and will soon be consulting on Guidelines for plain language re-drafting of modern awards prepared by Mr Eamonn Moran PSM QC on behalf of the Commission. Consultation on the award-specific provisions of the Pharmacy Industry Award is ongoing and will begin for the first of the four awards selected for re-drafting by the end of 2016.
During the quarter seven new modern enterprise awards were issued:
During the quarter four new modern state reference public sector awards were issued:
In the Annual Wage Review 2015–16 decision, the Expert Panel for annual wage reviews proposed that a review of the transitional instruments must be dealt with as part of annual wage reviews and that it must be the subject of a preliminary hearing for the Annual Wage Review 2016–17. The review will consider the status and effect of transitional instruments, including whether they have been, or can be, terminated by the Commission.
The preliminary hearing is scheduled for Monday 24 October in Sydney.
The Commission has recently published updated versions of the:
The benchbooks are plain language guides to the principles of workplace relations law under the Fair Work Act and how these have been applied in Commission decisions. The updated versions incorporate added subject areas and recent case law, and are currently available as downloadable PDFs (online versions of the updated benchbooks are under development).
The Commission registered the Fair Work Commission Amendment (Greenfields Agreements and Other Measures) Rule 2016 and published related approved forms. The amendments to the rules were effective from 12 August 2016.
The amendments have been made following the introduction of the Fair Work Amendment Act 2015 (Cth) which provides for a new type of greenfields agreement to be made under s.182(4) of the Fair Work Act.
The amended Rules facilitate the approval of the change of title for the following forms:
The amended Rules also introduced the following new forms:
The Commission’s quarterly statistical reports for the 4th quarter of 2015–16 are now available.
The reports can be accessed from the Quarterly reports page. They cover the period from 1 April 2016 to 30 June 2016.
An Information note (PDF) is also available. This provides details about the sources of the data contained in the reports.
The Commission has a pilot program operating in Melbourne that provides free legal assistance to applicants seeking employment law advice.
Qualified lawyers employed by JobWatch and Springvale Monash Legal Service provide their services free of charge to self-represented or unrepresented applicants seeking guidance with unfair dismissal or general protections matters.
The service is facilitated by the Commission, and its staff schedule appointments for clients to meet with a lawyer from one of the legal services at the Commission’s premises in Melbourne.
On 1 September 2016, the pilot program was expanded into Sydney.
Legal Aid NSW and Marrickville Legal Centre have joined with the Commission to provide free legal assistance to applicants seeking employment law advice in Sydney. Appointments are available one day a week in Sydney.
All costs associated with providing lawyers for the Pilot Program will be met by the legal services.
The pilot program is anticipated to run until the end of 2016.
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 this website.
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