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 firstname.lastname@example.org.
The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 July 2019 and 30 September 2019.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
This matter involved two applications for an unfair dismissal remedy made by two ground crew employees at Sydney Airport. The employees were summarily dismissed for serious misconduct related to allegations of the theft of two packets of cigarettes from an aircraft hold. The respondent had no CCTV footage or witnesses. One of the applicants, Mr Thomas, believed that unless the respondent had CCTV footage, or an eyewitness to the theft of the cigarettes and of him being given the stolen property, the respondent had no proof and could therefore not substantiate his dismissal. The Commission noted that Mr Thomas’ belief was misconceived and misapprehended.
The evidentiary test to apply when determining whether the misconduct occurred is according to the Briginshaw test, that is on the balance of probabilities. The Commission considered evidence of conversations Mr Thomas had immediately after the incident, and was satisfied that on the balance of probabilities the allegations were proven. During the respondent’s investigation into the alleged conduct the applicants made complete denials.
The Commission found that there was no alternative explanation other than theft by the applicants. Therefore, the allegations were proven to the Commission’s satisfaction. This constituted a valid reason for the dismissals with no mitigating factors. The Commission found the dismissals were not harsh, unjust or unreasonable. The applications were dismissed.
In this application for unfair dismissal remedy, the applicant had been employed as a pelican feeder since 2001. He worked one day each week for one hour, and received an hourly rate of $29.00, meaning that his weekly income was also $29.00. He was dismissed from his employment following an argument in which he swore at the Co-Op’s General Manager.
The Commission emphasised that any employee is entitled to pursue an unfair dismissal application after they have been dismissed, regardless of the nature of their employment arrangements, provided they satisfy the relevant jurisdictional requirements.
The Commission noted that although the use of explicit language in the workplace is not condoned or encouraged, the applicant’s use of such language was used as an adjective to emphasise his frustration, and the language was not directed at the General Manager in an aggressive or threatening way.
The Commission was not satisfied that the respondent had a valid reason to dismiss the applicant in the sense that the reason could be said to be sound, defensible and well founded. The Commission was satisfied that the applicant was unfairly dismissed on the basis that his dismissal was at least harsh and unreasonable, and was satisfied that reinstatement was appropriate in the circumstances.
In this matter the applicant had been employed for four and a half years and was dismissed from his employment 21 days after the business was acquired by the respondent. The respondent raised a jurisdictional objection in response to the applicant’s unfair dismissal application claiming that the applicant had not completed the required minimum employment period to enable him to bring an unfair dismissal application.
There was no dispute that the employer was a small business at the time of dismissal. The respondent however did not inform the applicant in writing that his period of service with the old employer would not be recognised. The Commission therefore noted the exclusions in s.384(2) of the Fair Work Act in regard to continuous service were not applicable.
The Commission was satisfied there was a transfer to the applicant’s employment and found that the business continued to operate in a similar manner to the way in which it operated previously under the same trading name. The Commission therefore determined that the service of the applicant with the old employer did count as part of the minimum employment period. The Commission found that the applicant had therefore completed the required minimum employment period in order to be a person protected from unfair dismissal. The application was relisted to enable the applicant’s substantive unfair dismissal application to be determined.
The applicant in this unfair dismissal application was employed by the Victorian Department of Parliamentary Services as an Electoral Officer. The applicant had management and control of the assets within the electoral office, and his role was to represent the Member of the Victorian Legislative Council for Western Metropolitan Melbourne, Mr Eideh, in the wider community.
In September 2017 the Independent Broad-based Anti-corruption Commission (IBAC) commenced an investigation into allegations of fraudulent work practices in the electorate office where the applicant worked. An audit of the electorate office was conducted by the Department of Parliamentary Services in November 2018. In December 2018 the applicant was charged with criminal offences in relation to the IBAC investigation. Following the audit the applicant was advised that there was a loss of trust and confidence in his ability to perform his role and he was subsequently dismissed.
Giving consideration to Byrne and Crozier, the Commission accepted that the applicant was a person of interest in the IBAC investigation, involving allegations of fraudulent and corrupt behaviour. However, whilst the Commission accepted that Mr Eideh may have lost trust and confidence in the applicant, it is not sufficient to find that there is a valid reason for dismissal simply because someone has lost trust and confidence in an employee’s ability to perform their role. The Commission held that there needs to be sufficient evidence and reasoning to support this loss of trust and confidence. The Commission noted that as at the time of the submission there had been no findings made in relation to the criminal charges against the applicant. The Commission found that there was no valid reason for the applicant’s dismissal without being able to establish adequate reasons and found that the applicant’s dismissal was unjust and unfair.
The applicant was employed as a Medical Receptionist and contended that her employment came to an end at the respondent’s initiative. The applicant’s mother became terminally ill in 2018 and passed away in January 2019. The applicant, currently aged 24 years, requested flexible working arrangements as she now had responsibility for the care of her younger sister, who is 11 years old. The applicant was working an average of 38 hour per week and requested to work between the hours of 10am to 2pm, and to take leave every school holidays, or at least for that part of the school holidays when the applicant’s father is unable to provide care. The respondent denied the applicant’s request however it offered her three alternative work options, to work full-time, to work part-time, or to work as a casual employee. The applicant failed to respond to the respondent’s offer, and as a result the respondent paid the applicant her outstanding leave entitlements and completed a separation certificate stating that the ‘employee ceased work voluntarily’.
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging that a constructive dismissal occurred. The applicant in this matter did not allege constructive dismissal, however it was worth the Commission considering whether this was the effect of her failure to return to work. The Commission considered Mohazab, O’Meara, Australian Hearing and Ashton, and was satisfied that the applicant was not dismissed pursuant to the consideration in s.386(1)(a) of the Fair Work Act.
The Commission found that the respondent was not unreasonable in its refusal to accommodate the applicant’s request to work only four hours per day, and to have most, or all, of each school holiday off work. The respondent had met all its obligations to respond appropriately to what it understood was a flexible working arrangement request. The Commission found that the respondent’s conduct did not force the applicant to resign and found no dismissal at the respondent's initiative pursuant to s.386. The application was dismissed.
In this application for an unfair dismissal remedy the applicant was a long serving casual retail employee and had been employed in the same position for over 20 years. At the time of her dismissal the respondent employed seven staff. The applicant’s employment terms and conditions were governed by the General Retail Industry Award 2010.
The circumstances and reasons for dismissal were disputed between the parties. The applicant was present and represented herself at a pre-hearing telephone conference, however the respondent did not attend, and failed to comply with Directions. Due to the non-compliance of the respondent the Commission determined this matter ex parte, taking into consideration the materials filed by both parties. In the Employer's response to unfair dismissal application (Form F3) the respondent indicated it was a small business employer and alleged that the applicant had engaged in misconduct by way of money shortages and absences from work without reasons or notice. The applicant stated that at no time had she been approached by management about any issues relating to money allegedly missing from cash registers in store. The applicant further stated that during the course of her employment she had never been the subject of any performance or conduct issues. Contrary to the allegations of misconduct made against the applicant, the respondent provided her with a positive letter of reference following the dismissal.
The Commission considered additional evidence of past job advertisements by the respondent on various Chinese Australian job forums stating a preference for Asian staff. The Commission considered Crozier, Wadey and Gibson in its deliberations and found that whilst the respondent was a small business, the size of the employer’s business and its lack of industrial relations expertise did not excuse the lack of any fair procedure in this case. The Commission found no valid reason for dismissal and was satisfied that the applicant’s dismissal was harsh, unjust and unreasonable, both substantively and procedurally. After considering further submissions as to remedy, the Commission ordered compensation of $11,803.01 (less appropriate taxation).
As the evidence disclosed potential breaches of anti-discrimination and industrial relations legislation, the Commission referred this decision and file to the General Manager of the Commission for consideration as to whether this matter should be referred to relevant agencies to investigate potential breaches of State or Commonwealth law.
The Transport Workers’ Union of Australia (TWU) made an application for termination of the Aero-Care Collective Agreement 2012 on 20 September 2017. The application was adjourned pending the Federal Court of Australia’s determination of matter no. NSD1814/2017 [ FWC 2056].
On 24 April 2017 Aerocare applied to the Commission for approval of a new enterprise agreement, the Aerocare Collective Agreement 2017 (the 2017 Agreement), to replace the Agreement. On 31 August 2017 Commissioner Wilson dismissed that application [ FWC 4311]. Aerocare then unsuccessfully appealed Commissioner Wilson’s decision to a Full Bench of the Commission [ FWCFB 5826;  FWCFB 59].
On 15 May 2018 a Full Court of the Federal Court dismissed Aerocare’s application to quash Commissioner Wilson’s decision in relation to the 2017 Agreement and the Full Bench decisions that dismissed its appeal against the Commissioner’s decision.
Also on 15 May 2018 Aerocare applied to the Commission for approval of another enterprise agreement, the Aerocare Collective Agreement 2018, to replace the Agreement. This application was also adjourned pending the determination of Federal Court matter no. NSD1814/2017.
The 2018 application is currently before Commissioner Wilson for consideration. On 25 January 2019, Justice Rangiah of the Federal Court handed down his judgment in matter no. NSD1814/2017, interpreting provisions of the Airline Operations-Ground Staff Award 2010. In the absence of a new enterprise agreement, the Award is the industrial instrument that would apply to Aerocare employees should the Agreement be terminated. The Agreement nominally expired on 19 February 2017.
The Commission was satisfied that taken as a whole, the terms and conditions provided for by the Agreement are less beneficial than those provided for in the Award, for a substantial proportion of Aerocare’s employees. The Commission was further satisfied that termination of the Agreement would not be contrary to the public interest. The TWU supported termination of the Agreement, while Aerocare opposed it.
The Commission was satisfied it would be appropriate to terminate the Agreement in all the circumstances and acknowledged reverting the employees to the Award immediately would involve substantial disruption to Aerocare’s business. Given that Aerocare had also applied to the Commission to approve a new enterprise agreement, the Commission considered that in the circumstances Aerocare should be given a reasonable period in which to put into place, if possible, a new BOOT-compliant agreement. Accordingly, the Commission decided that the termination of the Agreement should take effect six months from the date of the decision. The order will have effect from 6 February 2020.
The Commission approved the Ace Citrus P/L Enterprise Agreement 2018 on 17 May 2019. The Australian Workers’ Union (AWU) had contacted the Commission seeking to be heard before the approval decision was made, however the agreement was approved without the request being brought to the Commissioner’s attention. The ‘AWU lodged an appeal which advanced three grounds of appeal: that it was denied procedural fairness, that the Commission erred in concluding that the Agreement passed better off overall test (BOOT), and that the Commission erred in finding that the Agreement was genuinely agreed to.’
The Full Bench found that the AWU was denied an opportunity to develop its argument on whether it should be heard, amounting to a denial of procedural fairness. The Full Bench then considered whether the denial of procedural fairness deprived the appellant of the possibility of a successful outcome. The Full Bench acknowledged the possibility that the AWU might have persuaded the Commission that the Agreement had not been genuinely agreed to, and that it was not necessary for the AWU to identify a fatal error in the decision.
The Full Bench then considered whether there was a reasonable possibility that the AWU might have persuaded the Commissioner to exercise its discretion in a manner leading to a different conclusion. In light of proposed award variations and the question regarding what explanation of these proposals is required to be given to employees by s.180(5) of the Fair Work Act, it could not be said the AWU had no reasonable possibility of convincing the Commission that the company had failed to meet the requirements in s.180(5) and therefore the Agreement had not been genuinely agreed to. The Full Bench granted permission to appeal, the appeal was upheld and the decision quashed.
Although it was not raised by the AWU in its appeal grounds, the Full Bench identified that the employer had also failed to comply with s.180(3) of the Fair Work Act. The approval of the Agreement, absent satisfaction under s.188(2), would be beyond power in the circumstances described. The application for approval of the Agreement was remitted to Harper-Greenwell C for redetermination.
The Commission issued a decision concerning 41 applications for the approval of enterprise agreements (the Initial Decision). In the Initial Decision, the Commission dismissed 10 of the applications. This appeal concerns the 31 applications (the Applications) not dismissed in the Initial Decision, and the decisions issued approving each application (the Final Decisions). These agreements were largely identical in terms, for enterprises which relate to the horticulture industry. The appellant submitted nine grounds of appeal including genuine agreement, procedural fairness and the better off overall test. The Full Bench was satisfied that the appeal enlivened the public interest as it is critical that the agreement approval requirements set out in the Fair Work Act are properly considered, applied and administered. Permission to appeal was granted.
The Applications, the subject of the Initial Decision were made at a time when changes to the Horticulture Award 2010 (the Award) were in contemplation in connection with the 4 yearly review of modern awards (the forthcoming changes). On 5 July 2017, the Full Bench issued a decision in relation to the first 4 yearly review of modern awards, specifically in respect of casual employment and part-time employment (the Principal Decision) [ FWCFB 3541]. The Full Bench in the Principal Decision provisionally decided that the Award should be varied to provide overtime penalty rates for casual employees on the basis of a 12 hour day and a 38 hour week. On 9 August 2018, the Full Bench issued a decision concerning the outstanding issues from the Principal Decision, including overtime penalty rates for casual employees in respect of the Award (the August Decision) [ FWCFB 4695]. On 2 April 2019, the Full Bench issued a decision addressing the form of the variation to be made to the Award [ FWCFB 2108].
Genuine agreement is separate to issues relating to the BOOT, and award changes generally are not looked upon as BOOT issues as they are not operative at the test time. However with the forthcoming changes to the Award known in precise detail, the changes were ones that would be part of the obligation on employers to inform employees about under s.180(5), that is how the proposed Agreements modified the Award changes, and explain its terms and effects accordingly.
The Principal Decision in July 2017 conveyed the Full Bench’ view that the Award, as it was at that time, did not properly prescribe the ordinary hours of employment for casual employees. The Full Bench acknowledged that this issue required rectification within the Award. It follows then that following the issuing of the Principal Decision, the relevant parties, including employers in the horticulture industry, were on notice that the Full Bench held this view.
In this appeal, to satisfy the Full Bench that the Agreements were genuinely agreed to in accordance with s.188, the explanation provided to employees in respect of the forthcoming changes to the Award needed to reflect the actual nature of the forthcoming changes. The explanation provided to employees must have identified that the Award would be varied so as to prescribe the precise nature of the overtime entitlements for casuals, and further explained that the effect of the Agreements is that such entitlements will not be available to the casual employees covered by the Agreements.
The Full Bench was of the view that an explanation by the employers to employees that did not set out the changes to the Award and the effect of the Agreement in respect of such changes would mean that the Agreement was not genuinely agreed to. The common ground between the Agreements was, that it was stated to employees that a change to the Award with respect to overtime entitlements to casuals was forthcoming, however the changes explained did not either correctly or adequately reflect the contents of the Principal Decision.
The Full Bench was not satisfied that the forthcoming changes to the Award were accurately or adequately explained to employees in accordance with s.180(5). The Full Bench found that the Agreements were not genuinely agreed to, and as a result held that it was not considered necessary to consider the remaining grounds of appeal advanced by the appellant. Permission to appeal was granted and the appeal upheld.
The initial Decision and the Final Decisions, as listed in Appendix A of the decision were quashed. The application for approval of the BTS Packing Shed Enterprise Agreement 2018 (Matter AG2018/2373) was remitted to McKinnon C to determine the jurisdictional point raised. The remaining 30 applications that were the subject of this appeal were dismissed.
This matter relates to an appeal of a decision by the Commission to vary four transferable instruments in the manner sought by Viva Energy. The original application sought to vary four agreements covering employees of Viva’s associated entity, ZIP Airport Services, ahead of a rebranding.
Viva proposed to employ the ZIP workers covered by the agreements on the same pay and conditions, and with continuity of service, however the transfer and offer were conditional on the Commission varying the agreements to allow Viva to start paying wages monthly instead of weekly. The Commission concluded at first instance that Viva was ‘likely to be covered by the transferable instruments’ and therefore had standing under s.320(3)(a) of the Fair Work Act to apply for the variations.
The TWU appealed arguing that Viva Energy was not ‘likely’ to be covered at the time it made the applications, and therefore lacked standing due to the conditional nature of its plans. The TWU further contended that reference to ‘working arrangements of the new employer’s enterprise’ in s.320(2)(c) of the Fair Work Act referred to arrangements for workers’ actual performance of their duties and responsibilities, not merely that it ‘relates to’ or has a ‘connection’ with work.
The Full Bench majority considered that the notice of appeal raised important questions about the proper construction of s.317 and ss.320(1), (2)(c) and (3) of the Fair Work Act and, in particular, the standing of a person to bring an application under s.320(3)(a) and the circumstances in which a variation of a transferable instrument may be made for the reason set out in s.320(2)(c). The Full Bench majority noted that the questions raised had not previously been considered by a Full Bench of the Commission, and were affected by ‘disharmonious decisions made by single Members of the Commission under s.318’ of the Fair Work Act. The Full Bench majority considered it was in the public interest to grant the TWU permission to appeal.
The Full Bench majority found that the Commission could not be satisfied that the preconditions for the exercise of power under s.320(2) were met, where such satisfaction was entirely dependent on an assessment as to the likelihood of it exercising such power. The Full Bench majority expressed the view that in relation to s.320(3)(a), the condition attaching to who may make an application under the section is one that must be met at the time that the application is made.
The Full Bench majority found that Viva did not seek to vary the frequency of payment provisions of the relevant instruments for any purpose connected with better alignment with its existing working arrangements. It was not in contest that the only purpose of the variations was to ensure that any transferring employees were paid at the same frequency as Viva Energy’s existing employees. The Full Bench majority held that pay frequency simpliciter has no connection with the arrangements for the performance of work. The appeal was upheld, the Decision at first instance was quashed and the applications were dismissed.
The Full Bench minority agreed with the orders proposed by the Full Bench majority, citing that the basis of the variations sought by Viva Energy were not for the purpose of enabling the transferable instruments to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise within the meaning of s.320(2)(c) of the Fair Work Act. The Full Bench minority however came to a different view in relation to the proper construction of ss.320(1) and (3) of the Fair Work Act, considering that the word ‘likely’ in ss.318, 319 and 320 of the Fair Work Act means ‘real and not remote’.
The Full Bench minority was not satisfied that granting an application under s.320, in circumstances where a transfer of business is conditional on an order being made by the Commission, would ‘require a form of circular reasoning’ or a ‘logical fallacy’. The Full Bench minority acknowledged that making an assessment as to the likelihood that there will be a transfer of business, including by reason of the likelihood that the Commission’s jurisdiction may be exercised, is distinct and separate from actually exercising jurisdiction. The Full Bench minority noted that as long as there is more than a remote chance of the relevant event occurring, the Commission has jurisdiction to hear and determine the application.
Kmart Australia Ltd made an application for approval of the Kmart Australia Ltd Agreement 2018. Concerns about whether the Agreement must be approved were raised by and with the Commission. The concerns related to two primary issues. First, whether the Commission could be satisfied that the Agreement was ‘genuinely agreed’ by the employees to be covered. Several issues arose in this regard, the central issue relating to the voting cohort, which included some current and former employees not covered by the Agreement and excluded some employees who were. Second, whether the employees to be covered and prospective employees would be ‘better off overall’ under the Agreement than they would be under the General Retail Industry Award 2010.
The Commission found the ‘genuinely agreed’ error would not be fatal if valid majority of employees who were entitled to vote and did vote, approved the Agreement. However, as some covered employees were excluded from voting on the Agreement, the Commission could not be satisfied that the Agreement was genuinely agreed to by employees covered by it. Under s.188(2) of the Fair Work Act, the Commission has discretion to approve an agreement if it considers an error to be minor or technical and does not disadvantage employees. The Commission found that as the error was due to intentional non-compliance, it could not be classified as minor or technical. The Commission further found that even if the error was not due to intentional non-compliance, the error could not be regarded as minor or technical, having regard to the underlying purposes and nature of the procedural requirement that had not been complied with.
With respect to whether employees would be better off overall under the Agreement than under the General Retail Industry Award 2010, Kmart proposed a set of undertakings to address many of the concerns raised in the course of the proceedings. However there remained concerns that were not the subject of any proposed undertakings. Weighing the less beneficial entitlements offered by the Agreement against the more beneficial entitlements, the Commission found that it was not able to be satisfied that employees and prospective employees would be better off overall under the Agreement than if the Award applied.
The Commission concluded that it could not be satisfied that the Agreement was genuinely agreed to, as covered employees were excluded from the voting cohort, and this was not a minor procedural or technical error which may be overlooked pursuant to s.188(2) of the Fair Work Act. The Commission was not satisfied that the Agreement was ‘genuinely agreed’ to, and as all of the requirements of ss.186 and 187 were not met, the Agreement could not be approved.
Note: Appeals pursuant to s.604 (C2019/5635, C2019/5636, C2019/5771) have been lodged against this decision.
An application was made to approve the MTCT Services Pty Ltd ESSO Offshore and Onshore Maintenance Services Enterprise Agreement 2018. The AMWU, AWU and CEPU opposed the approval of the Agreement and advised that they wished to be heard. Submissions were accepted from the Unions and the matter was part heard but prior to further hearing, the Unions collectively withdrew all their objections and submissions in relation to the matter, and stated they no longer wished to be heard in the matter.
Notwithstanding the Unions withdrawal, there were still a number of issues that required the Commission’s determination, the most contentious being whether there was a valid majority in the vote to approve the Agreement. The doubt towards a valid majority was based on the grounds that all employees to be covered by the Agreement were employed on a casual basis.
The Commission referred to s.182(1), which stipulates an enterprise agreement is ‘made’ when a majority of the employees who have been asked to approve the agreement and who cast a ‘valid vote’, approve the agreement. The Commission noted that s.182(1) allows the Company to ‘request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it’. The employer’s statutory declaration indicated that 265 employees were to be covered by the Agreement, 255 cast a valid vote; and 214 voted to approve the Agreement.
The Company submitted that the facts of the matter were similar to McDermott, therefore the Company’s casual employees should be deemed ‘ongoing’, and therefore ‘employed at the time’ even if they were not on shift at that time. The Commission referred to Noorton, where it was observed that ‘the critical conclusion in McDermott was that the casual employees ‘accepted on-going employment.’ This was also followed in Lovisa, where the Commission noted that in McDermott ‘the relevant employees were not casual employees at all, but rather ongoing (permanent) employees’. The Commission agreed with the comments made in Noorton and Lovisa and found that the facts of the present case were not analogous to McDermott. Further, sample contracts submitted by the Company did not support their submission that the employment of the casuals should be regarded as ‘ongoing’, as the contracts stipulated ‘there is no guarantee under this Contract that you will be offered any pattern or number of casual shifts, or that you will be offered any casual shifts at all’.
The Commission considered the alternative view of the Company that there was nonetheless a majority of employees who voted for approval. Reference was made to Swinburne, where it was observed that the ‘requested group’ under s.181(1) should also include those employees who are ‘employed at the time’ of the access period. The Commission noted that based on the material of the present case, 256 employees were engaged on a shift at least once from the beginning of the access period to the conclusion of the voting period, with nine absent employees. Based on this ‘requested group’, the Commission was satisfied that that there was a majority of employees who validly voted in favour of approval. Section 182(1) was therefore satisfied. The Agreement was approved with undertakings.
Reserve Support Services Pty Ltd T/A Reserve Support Services (RSS) made an application for approval of the Reserve Support Services Pty Ltd Enterprise Agreement 2019. The CFMMEU, who was not involved in bargaining, raised concerns in relation to the agreement-making process and whether the Agreement met the better off overall test. The CFMMEU applied to be heard on the application for approval of the Agreement. The CFMMEU’s application to be heard was opposed by RSS.
The Commission found that the CFMMEU had no automatic right to be heard flowing from a right, interest or legitimate expectation that might be affected by the proceeding. Instead, the Commission found that s.590 of the Fair Work Act confers upon the Commission a broad discretion to inform itself as it sees fit, and that if the Commission decided to hear from the CFMMEU in relation to approval of the Agreement, it would be because the Commission exercised this discretion and not because the CFMMEU had a right to be heard.
The Commission disagreed with RSS’s submission that the obligations on small businesses in agreement-making or in the approval of an agreement are any less stringent that they would otherwise be. The Commission went on to say that where the Fair Work Act has determined that particular provisions will apply to small businesses differently to those applying generally, these have been clearly articulated. In a similar vein, the Commission noted that the rigour to be applied to the discharge of its statutory responsibility, being to approve an agreement only if it meets the requirements of the Fair Work Act, is independent of, and unaffected by, who made the application and whether the application has union support.
Ultimately, the Commission was satisfied that allowing the CFMMEU to be heard may assist the Commission in undertaking its task in considering the Agreement for approval. This conclusion was based on the issues raised by the CFMMEU in relation to the content of the Agreement and the agreement-making process, as well as the CFFMEU’s history in the industry. The Commission decided to exercise its discretion in accordance with s.590 of the Fair Work Act to hear from the CFMMEU with respect to approval of the Agreement.
The application to terminate the Esso Offshore Enterprise Agreement 2011 was made by the employer, Esso. From late 2014 to December 2016 Esso negotiated with the AWU, the CEPU and the AMWU (collectively the Unions) for a replacement agreement. Amongst other matters of contention was a change to the regular roster from a seven days on/seven days off roster, which could only be changed through consultation with bargaining representatives, to the employer’s preferred fourteen days on/fourteen days off roster.
The AWU organised industrial action and the employer obtained orders to stop this action. The AWU’s bargaining representatives continued to organise industrial action and were held to be in breach of the order to stop action. As a result, employee members of the AWU were not able to engage in protected industrial action in relation to the negotiation of a new proposed agreement [Esso v AWU].
No proposed agreement had been negotiated by the time of application to terminate the Agreement. If the Agreement were terminated, the employees’ conditions of employment would revert to the Hydrocarbons Industry (Upstream) Award 2010 and allow changes to the regular roster.
Section 226 of the Fair Work Act states that the Commission must terminate an enterprise agreement upon application if the Commission is satisfied that it is not contrary to the public interest to do so and the Commission is satisfied that termination is appropriate in all the circumstances, including the likely effects of the termination on parties.
The Commission considered submissions by the Unions that the termination of the Agreement would have a detrimental effect on the Gippsland economy and would negatively impact on the family and caring responsibilities of employees. The Commission considered the economic arguments largely speculative and that the proposed change to the regular roster would have benefits to employees as well as detriments. As a result, the Commission found that termination of the Agreement would not be contrary to the public interest.
The Commission then considered the change in bargaining dynamics that would result should the Agreement be terminated. The Commission found that the inability of employees represented by the AWU to engage in protected industrial action to be a significant disadvantage. The Commission also considered that a change in bargaining representatives was likely to be unfair as it would involve substituting a resourced and experienced bargaining representative for persons not likely to be as organised, resourced and experienced. The Commission found that this would result in a situation where the employer could impose change while AWU member employees were industrially impotent. The Commission therefore found that termination of the Agreement was not appropriate in all the circumstances having regard to the likely effect on employees. The application to terminate the Agreement was dismissed.
Note: An appeal pursuant to s.604 (C2019/5898) has been lodged against this decision.
This application by the CFMMEU relates to a dispute concerning the point at which employees commence work and are entitled to payment. Employees are rostered to work 10-hour shifts, day shift commences at 6.00am and night shift at 6.00pm. Employees are also offered two hours of rostered overtime at the end of each shift. Employees undertake various activities preparatory to commencing operational duties at the Mine which include: obtaining personal protective equipment (PPE); fitness for work testing via a computer system known as OSTE; logging attendance on a computer system referred to as Kronos; reviewing an electronic board to ascertain where they are working and what machine they are operating; and attending a pre-start meeting.
Employees attend the administration building to undertake activities other than the pre-start meeting and then travel in vehicles provided by Peabody from the main administration building to designated in-pit crib huts to attend pre-start meetings. The vehicles operate 15 minutes prior to commencement of pre-start meetings. Employees are paid from commencement of pre-start meetings. The CFMMEU asserted that employees should be paid from the time that they are required to attend at the administration building, including the time spent being transported to the designated crib huts to attend pre-start meetings. The respondent asserted that employees were not entitled to payment until they attend pre-start meetings, respondent claiming that employees were undertaking pre-work activities or travelling and were not working.
The Commission considered Warramunda in determining what a reasonable person would consider ‘work’. The Commission found where the employer requires an employee to be at work at a specified time, and the activity that the employee is undertaking before the commencement of operational duties is not a private activity but provides a benefit to the employer, the activity will be more likely to be found to be work. The line between private activities and the commencement of work can sometimes be blurred. For example, employees who are required to be at work at a particular time to engage in briefings, training or similar activities, are working. Where such activities are voluntary, it may be that employees engaging in them are not working.
The Commission considered that the line in the present case was clear. The employees subject of this dispute are required to be at the workplace at a particular time so that they can be required or directed to board employer provided vehicles and be transported from one part of the workplace to another at a particular time. The Commission was of the view that a reasonable person would understand that the intention of the parties was that employees would be remunerated under the Agreement for work.
The Commission found that the employees subject of the present dispute commence work at 5.45am/pm and that they are not being paid for work performed between 5.45am/pm and 6.00am/pm. The employees are working during this 15 minute period and should be paid for that period.
This decision deals with an appeal against an Interim Order to stop certain industrial action. At first instance the Commission granted the Interim Order on the grounds that s.420(2) of the Fair Work Act required it in the circumstances. The appeal was based around whether the Commission was empowered to make the Interim Order.
It is necessary for the Commission to conclude it is unable to determine the application for an order within two days after the application is made before it can make an interim order under s.420 [McKewin]. The Full Bench considered the proper construction of the phrase ‘within 2 days after’.
At first instance the Commission concluded that it could not determine the application within 48 hours, the Full Bench found that this conclusion was based on erroneous construction. The Full Bench found no reason to read the two-day requirement as meaning 48 hours, rather than two calendar days. The application was lodged at approximately 4.35pm on 23 July 2019. Therefore the Commission had until midnight on 25 July 2019 to determine the matter, not 4.35pm.
The Full Bench found nothing on the face of the record or in the material in the Appeal Book which suggested that the Commission considered whether it was unable to determine the matter by midnight on 25 July 2019. There was also nothing in that material which would suggest that the Commission was unable to do so. Given those circumstances, the Full Bench found it cannot be said that a different outcome might not have been obtained. The Full Bench found that the Commission was neither required nor empowered to make the Interim Order. The appeal was upheld, and the decision recorded in transcript and the Interim Order quashed.
This matter relates to an application for an order to stop bullying. The applicant was a Foster Carer under arrangements involving Barnardos Australia. The applicant alleged that he had been subject to workplace bullying in connection with his role by one or more Case Managers and other Managers who work for Barnardos Australia.
The applicant claimed that he was a worker in the form of a volunteer, subcontractor or outworker. Barnados Australia raised a jurisdictional issue about the capacity for the applicant to bring this application, that is whether the applicant was a worker capable of applying for an order to stop bullying. Barnados Australia contended that the applicant was not an employee, outworker or a volunteer worker as, amongst other matters, he did not perform any work ‘for’ Barnardos Australia.
The applicant would only be eligible to make application if he is a ‘worker’ within the meaning of s.789FC(2) of the Fair Work Act. The Commission stated the term ‘worker’ is defined in s.789FC as having the same meaning as in the Work Health and Safety Act 2011 (Cth) (the WHS Act). The WHS Act includes definitions of ‘volunteer’ and ‘outworker’. The WHS Act states that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking. The concept of ‘a person conducting a business or undertaking’ (PCBU) is provided by s.5 of the WHS Act. A volunteer association does not conduct a business or undertaking for the purposes of the WHS Act. The Commission confirmed that Barnados Australia is a PCBU and not a volunteer association.
The Commission considered Bowker, Balthazaar and Bibawi. The Commission found that the applicant was not an employee of Barnardos Australia, including as an outworker, and he was not a subcontractor, but was performing work in his capacity as a volunteer. Given that the applicant was a ‘worker’ within the meaning of s.7(1) of the WHS Act, and as a result s.789FC(2) of the Fair Work Act, the Commission was satisfied that the application was properly before the Commission. The matter was allocated to a locally-based Member to deal with the merits by way of conciliation or determination.
This matter involved an application to deal with a dispute under the Rail Commissioner Tram Operations Enterprise Agreement 2018. The dispute concerned whether the requirements of subclause 20.8 of the Agreement had been met in relation to the disciplinary procedures. Subclause 20.8 provides that in the process relating to alleged misconduct, procedural fairness and natural justice ‘must apply at all times’.
The circumstances underlying this application involved a worker undergoing a disciplinary process concerning her alleged treatment of female colleagues at the workplace. The Rail Commissioner provided a letter to the worker that included a secondary allegation, outlining that the worker ‘attempted to wilfully mislead the investigation into your conduct’. The ARTBIU contended that the failure to supply the records of interview that led to the basis for the secondary allegations fell short of the requirements in subclause 20.8.
The Commission noted that the secondary allegations were very serious, and without providing all or most of the evidence, the conclusions reached amounted to the worker being denied proper opportunity to understand the basis of the allegations. The Commission found that subclause 20.8 required that the actual evidence relied upon be provided to the worker as part of any fair process.
The Commission acknowledged that where an employer forms a view that they were deliberately misled by an employee during an investigation, this can properly form the basis for further allegations. However, if those allegations are founded on preference for one version of an event over another, without the support of objective evidence, this approach should be considered with caution. That is, in most cases, the investigations involve an administrative process where no sworn evidence is taken or subject to testing through any open process. In the absence of any genuinely independent objective evidence, it is a very significant matter to make a finding that the employee deliberately attempted to misled the employer.
The Commission considered that the Rail Commissioner had failed to apply the principles of natural justice or procedural fairness in relation to the secondary allegations. The Commission held that if the Rail Commissioner intended to press ahead with the secondary allegations, it must provide the worker with full opportunity to respond after having been provided with the actual evidence or information being relied upon to support those allegations.
The Commission noted that its view about the requirements to disclose the actual ‘evidence’ and materials relied upon with respect to the secondary allegations arose from the particular nature of those allegations and the context in which they arose; rather than the notion that such material must be provided to meet the principles of natural justice and procedural fairness as a matter of course in other circumstances. Each disciplinary process and case turns on its own facts and circumstances.
On 6 July 2018 the Full Bench issued a decision finalising the ‘leave to deal with family and domestic violence’ model term and decided that it was necessary to vary all modern awards to include the term [ FWCFB 3936]. The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) amended the Fair Work Act to include an entitlement to unpaid family and domestic violence leave, and commenced from 13 December 2018. In February 2019 the Full Bench expressed the view that the model term and the effect of the NES entitlement were substantially the same.
In this decision the Full Bench confirmed their provisional views that the model term is to be deleted from the exposure drafts and replaced with a reference to the NES entitlement. The model term will remain in modern awards until they are replaced by the exposure drafts. The Full Bench also confirmed that the reference to the NES entitlement is to be expanded by the addition of two notes regarding the handling of sensitive information and the provision of evidence that would satisfy a reasonable person.
The Full Bench proposed to revisit the model term in 2021 after it has been in operation for three years to consider the following issues:
The Full Bench also noted that the decision to delete the model term and replace it with a reference to the NES does not obviate the requirement for a review of the scope of the term. Any interested parties will be invited to participate in the 2021 review, with a statement to be issued in late 2020 about the process for the review.
The President provided a status update on the finalisation of the modern awards review in a Statement issued on 24 December 2018 [ FWC 7869]:
The common matters that are yet to be finally determined include annualised salaries, overtime for casuals, payment of wages, annual leave loading terminology, span of hours, shut down provisions and reasonable overtime, among other matters. A ‘light touch’ plain language project has also run as part of the Review.
The Full Bench confirmed their decision of 20 August 2019 [ FWCFB 5409], and stated that the ‘light touch’ process will be confined to making changes to the structure of exposure drafts in Groups 1 to 3 awards, the insertion of plain language standard clauses and relevant key decisions dealing with common issues. A number of selected awards have been drafted in plain language and a timetable for the re-drafting process will be issued in the latter part of 2019.
The Full Bench noted that submissions relating to 74 exposure drafts were received in March-April 2019. It also listed the exposure drafts to which no submissions were received, as well the exposure drafts that had minor errors corrected. Exposure drafts will be published one final time for comment in three tranches, and a draft determination will be published for each award. Specific clauses that relate to outstanding issues will be quarantined and a note inserted into the relevant clause of the exposure drafts during publication.
The Full Bench expressed their provisional view that the tranche 1 modern award variations set out in the draft variation determinations are necessary to achieve the modern awards objective, and invited interested parties to comment. The Full Bench also invited parties to express their views on awards listed in tranches 2 and 3, and set a timeline for the process in the Decision.
On 28 February 2019 the Full Bench issued a Statement [ FWCFB 1255] expressing some provisional views in relation to outstanding issues in the plain language project. In this decision, the Full Bench examined and resolved most of the outstanding issues related to the redrafting of clauses in specific awards. The Full Bench made determinations in relation to reasonable overtime, the national training wage, terminology of rates, spread of hours and shutdown provisions. There were some contested issues related to the Joinery Award, the Manufacturing Award, the Teacher’s Award and the Timber Award, and a hearing is listed for 26-27 October to resolve these issues.
The Full Bench decided that, due to the risk of inadvertently changing the legal effect of existing award terms, the ‘light touch’ approach would be confined to only certain awards (Groups 1 to 3 awards). The Full Bench stated that final versions of exposure drafts will be published in stages with interested parties given an opportunity to comment and propose the adoption of plain language award terms to make the awards simpler and easier to understand.
On 14 December 2018 the Full Bench issued a decision [ FWCFB 7621] relating to increases to minimum pay rates for pharmacists on work value grounds. The Full Bench noted that there was a lack of alignment in pay rates and relativities between pharmacists and those for classifications requiring equivalent qualifications under the Manufacturing and Associated Industries and Occupations Award 2010, and observed that this issue might also affect other awards.
The President gave the provisional view that the 29 awards with classifications requiring undergraduate degrees should be referred to a separate Full Bench for review, with a priority group of four awards to be reviewed first, and a later group of awards to be reviewed after the Full Bench determines the Independent Education Union’s application to increase pay rates in the Educational Services (Teachers) Award 2010. The President invited parties to comment on his provisional view, the accuracy of the list of awards listed in the decision, and whether the Full Bench should consider additional awards as part of the priority group.
Ai Group applied for a variation to the below awards:
Ai Group sought to have provisions in these awards varied so that employers will not have to reimburse employees’ training costs associated with a trainee’s training contract. The AMWU and AWU opposed the variations.
In its decision, the Full Bench took into account the relevant arbitral history of training costs provisions in awards. The Full Bench were not persuaded by the Ai Group’s submission that its decision in the Transitional Review – Apprentices decision should be reversed. This decision amended the Manufacturing Award so that employers do not have to pay training costs in connection with an apprentice’s training contract, but it did not insert a similar provision in relation to trainees. The Full Bench concluded that Ai Group did not advance a merit argument, nor did they establish that their variation was necessary to achieve the modern awards objective. Consequently, the amendments sought were refused and the application dismissed.
In the 2018-19 Annual Wage Review, the Expert Panel rejected the ACTU and ACBC’s contention that it should set the C14 rate at a level which lifts certain single-earner households to above the 60 per cent relative poverty line. The Expert Panel raised the issue for further consideration in the 4 yearly modern awards review.
Under s.157 of the Fair Work Act dealing with award variation proceedings, the President held the provisional view that 14 awards be referred to the Full Bench for review to determine whether the C14 rates in these awards provide a fair and relevant safety net of terms and conditions. The President invited interested parties’ submissions on this issue, with a conference held on 7 October 2019.
This decision deals with the substantive issues raised by the Association of Consulting Architects Australia (ACAA) and Professionals Australia (APESMA), and their proposed variations to the Architects Award 2010. The claims related to:
The Full Bench decided to include the additional degree qualification and classification structure in the Award, and to amend the equipment and special clothing allowance.
However, the Full Bench stated that it had no power to review or vary default superannuation fund terms under s.156 of the Fair Work Act. The Full Bench also rejected proposed variations to the TOIL and notice of termination provisions.
This decision deals with variations sought by United Voice and the Health Services Union to the Aged Care Award 2010. Submissions-in-reply were received from the Aged and Community Services Australia and Leading Age Services Australia, Australian Federation of Employers and Industry, and Australian Business Industrial and the NSW Business Chamber. The matter was heard on 10 April 2019. The claims related to:
The Full Bench varied the rates of pay of casual employees working on weekends and public holidays to include the casual loading, and varied the Award to ensure there was a minimum payment of two hours for each broken shift. The Full Bench expressed a provisional view on how the increase in the weekend and public holiday rates for casuals should be phased in. The Full Bench also expressed the provisional view that the current definition of the classification Aged Care Worker Level 4 be amended, and that a note at the commencement of the classification definitions would state that any dispute about classifications may be referred to the Fair Work Commission. The Full Bench rejected the claim for a phone allowance.
The Full Bench invited interested parties to file any submissions in relation to the Full Bench’s provisional views and the draft variation determination.
This section provides summaries of the Federal Court of Australia reviews of Commission decisions.
Originating Application [NSD2357/2018] filed 18 December 2018, seeking relief under s.39B of the Judiciary Act 1903 (Cth).
This matter was heard before Justice Thawley on 22 July 2019. On 15 August 2019, the Court ordered the application for judicial review be dismissed was required to determine, first, whether it was in the public interest to grant permission to appeal, and that it was not the role of the Full Bench to examine in detail the merit of the grounds of appeal as if on a hearing of the appeal. There was no denial of procedural fairness on the part of the Full Bench.
Originating Application [VID511/2018] filed 24 April 2018, seeking relief under s.39B of the Judiciary Act 1903 (Cth).
This matter was heard before Justice Rangiah on 4 April 2019. On 2 July 2019, the Court ordered the application for judicial review be dismissed on the basis that it was an abuse of process. The Court accepted the argument of the first respondent, Victoria International Container Terminal Limited (VICT), that the applicant had brought the proceeding for the predominant purpose of enabling the CFMMEU (named as the fourth respondent) to obtain relief that it would be unlikely to obtain if it brought the proceeding in its own name. The applicant has now appealed this matter to the Full Court in VID777/2019 which is still on foot.
August marked the one-year anniversary of the Workplace Advice Service, a free legal assistance program coordinated by the Commission. The service is offered by the Commission as part of its ongoing efforts to improve access to justice and reduce complexity for unrepresented individuals and small business employers.
Over the past 12 months, the service has expanded to operate in New South Wales, Queensland, South Australia, Victoria and Western Australia and has partnered with more than 65 law firms, community legal centres and legal aid bodies. So far, the program has facilitated over 1,100 pro bono consultations to eligible employees and small business employers. As the second year of operation commences, well over 200 requests for assistance are now received every month.
Over the next 12 months the Commission will continue to expand and improve the Workplace Advice Service, including further rolling out the service in metropolitan and regional locations and introducing a pilot program that offers legal representation services for Commission proceedings.
The Commission continues to focus on increasing the accessibility of the service. Having recently launched a Workplace Advice Service online request form and is conducting an extensive campaign to raise awareness of the program with small business employers and unrepresented individuals.
The Workplace Advice Service is a key initiative of the Commission’s What’s Next strategy which focuses on improving access and reduce complexity for our users.
More information is available on the Workplace Advice Service webpage.
The Commission has published an updated version of the Unfair dismissals benchbook, the Anti-bullying benchbook and the Industrial action benchbook.
The updated of the Unfair dismissals benchbook reflects recent case law and rules changes, including information on insolvency, termination at the employer’s initiative, transferring employees, procedural fairness, and representation by lawyers and paid agents.
The updated version of the Anti-bullying benchbook reflects recent case law and rules changes, including information on amending applications, rescheduling or adjourning matters, bias, representation by lawyers and paid agents and orders the Commission can make.
The updated version of the Industrial action benchbook reflects recent case law including information on interim orders, covert industrial action and employer response action.
The benchbooks contain plain English summaries of the key principles of the relevant case law and how these have been applied in Commission decisions. It is designed to provide information to parties to assist in the preparation of material for matters before the Commission.
The benchbooks are designed to be read online and can be accessed from the Benchbooks page of the Commission's website. PDF versions of the benchbooks are also available for download.
The Honourable Professor Emeritus Joseph Ezra Isaac AO passed away in September aged 97. Joe was considered one of Australia's most distinguished scholars and practitioners in the field of industrial relations and made very significant contributions to the fields of economics, industrial relations policy and practice, dispute settlement, and social and economic development.
Commission President, Justice Iain Ross AO said ‘Joe was a great Australian and made a monumental contribution to workplace relations and in particular labour economics in this country. I will personally miss him as my dear friend and mentor’.
In 1973 Joe was appointed as a Deputy President of the Australian Conciliation and Arbitration Commission, where he was a Member of the Full Bench for many of the National Wage Cases determined by the Commission between 1974 and 1986. Joe retired from the Commission at the statutory retirement age of 65 in 1987.
Joe was made an Officer of the Order of Australia in 1989 for service to industrial relations and to education. In 2001 Joe was awarded the Centenary Medal for service as Deputy President of the Commonwealth Conciliation and Arbitration Commission.
In August 2018 the Commission was honoured to have Joe deliver a lecture as part of the its Workplace Relations Education Series based on his paper Why are Australian wages lagging and what can be done about it? published in the Australian Economic Review in June 2018. The lecture can be viewed on the Commission’s YouTube page. Joe will be remembered by current and former Commission Members and staff with great fondness.
On 16 August 2019 the Commission issued an update on enterprise agreements. The update provides information on recent improvements in the Commission’s processes and timeliness in dealing with enterprise agreement applications.
The update followed a recent speech by the President of the Commission, Justice Iain Ross AO, which discussed a range of topics including the Commission’s approach to assessing and approving enterprise agreements.
Download the agreement update: Enterprise agreement update (PDF)
The Fair Work Commission has registered the Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2019 (Rules Amendment). The Rules Amendment amends the Fair Work Commission Rules 2013 (Rules) with effect from 1 August 2019.
In addition to making various technical changes to improve the workings of the Rules, the Rules Amendment amends or introduces rules concerning:
The Rules Amendment and the Explanatory Statement to the Rules Amendment are available on the Federal Register of Legislation. A compilation incorporating the amended Rules is available on the Federal Register of Legislation website.
New and updated forms incorporating changes required by the amended Rules are available on the Forms page of the Commission’s website.
To provide further guidance in relation to representation, the Commission has also published a new practice note.
The Findings report: unfair dismissal correspondence user testing has been published on the Commission’s website.
The Commission engaged Pivot Management Consulting to critically test the user friendliness of our redrafted unfair dismissal case management documents.
Find out more: Client experience feedback & research
The Commission has published its Corporate Plan 2019–20.
The plan covers the periods of 2019–20 to 2022–23 and has been prepared in accordance with the requirements of paragraph 35(1)(b) of the Public Governance, Performance and Accountability Act 2013.
You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.
If you have any feedback about this newsletter, including suggestions for future editions, please contact email@example.com.