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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The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 July 2020 and 30 September 2020.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The Workplace Advice Service was launched in August 2018 as part of our strategic plan, What’s Next with the primary purpose of building connections between self-represented users with legal professionals to improve access and reduce complexity.
As the program has matured, it is shaping to be a significant contributor to access to justice services for the Australian community. In 2019–20 our partners provided 2,401 free legal consultations to employees and employers with demand for the Service continuing to rise. In response to the growing interest, we are increasing our network of partner organisations. We are seeking expressions of interest for law firms, community legal centres, legal aid commissions and barristers to partner with the Commission on this important community outreach program.
In recognition of partnership and in reciprocation to the support provided, the Commission delivers professional development opportunities to lawyers participating in the Service.
We will be convening information workshops about the Service on 28 and 29 October 2020 at 4pm (AEDT) via Microsoft Teams.
If you would like to attend a workshop or would like to learn more about the Service, please contact the Workplace Advice Service team, by email: firstname.lastname@example.org.
In a decision published on 8 April 2020 [ FWCFB 1837] (the April decision), a Full Bench of the Commission, acting on its own initiative in response to the current worldwide COVID-19 pandemic, determined to vary 99 modern awards to include provisions establishing an entitlement to unpaid pandemic leave. The provisions were in standard form across all of the 99 awards. The provisions were initially given a period of operation from 8 April 2020 until 30 June 2020. In a decision issued on 2 July 2020 [ FWCFB 3490] the operation of these provisions was extended until 30 September 2020.
The April decision noted that the Australian Council of Trade Unions (ACTU), the Australian Nurses and Midwives Federation (ANMF), the Health Services Union (HSU) and the Australian Professionals, Engineers, Scientists and Managers Association (APESMA) foreshadowed that further measures might need to be taken in respect of ‘health care workers’ covered by the following Health awards:
The Full Bench noted the ACTU’s submission that, in its view, employees covered by these awards should be entitled to paid leave on multiple occasions. The applications sought that each of the Health awards be varied to introduce paid pandemic leave for any employee required to self-isolate as well as paid special leave for any employee diagnosed with COVID-19.
The Commission may make a determination varying a modern award if the Commission is satisfied the determination is necessary to achieve the modern awards objective as per s.134 of the Fair Work Act. The ACTU submitted that the variations sought to the Health awards should be granted for reasons including that:
The ACTU further submitted that the claim, if granted, would reduce the economic risk faced by employees should they be required to self-isolate, and provide health and social assistance workers with sufficient paid leave to ensure that they are not exposed to economic risk should they become unwell as a result of contracting the virus. The ACTU also said that if the claim was granted, workers would be less likely to violate self-isolation requirements due to economic hardship and comply with public health best practice, and in that way the grant of the claim will contribute to the resilience of the health and care workforce.
The Australian Chamber of Commerce (ACCI), Australian Business Industrial (ABI) and the NSW Business Chamber (NSWBC) submitted that the applications should not be granted for reasons including that:
The Full Bench held it was necessary that the unions’ application be considered in light of the current situation of the COVID-19 pandemic in Australia. The Full Bench was satisfied, based on the evidence, that at a high level of generality workers in the health and social care sectors were at a higher risk of infection by COVID-19 (and other infectious diseases) than workers in the rest of the economy. In turn this may lead to more frequent and widespread requirements for them to self-isolate because they have been exposed to actual or suspected COVID-19 patients or have displayed COVID-19 symptoms. However, the Full Bench also found much of the expert evidence was directed at the position of ‘frontline’ health care workers, that is workers in public hospitals and emergency-response paramedics actually treating or providing services to confirmed or suspected COVID-19 patients. These workers are either generally not covered by modern awards at all because they are not in the federal system, or modern awards do not apply to them because they are covered by enterprise agreements.
The Full Bench was not satisfied there was an elevated risk of infection for workers covered by the Pharmacy Award. They also found the inclusion of the Supported Employment Services Award in the list of Health awards was obscure, since employees under this award perform activities of a different character. The Full Bench was satisfied that there was a very real risk that employees who have no paid leave entitlements to access (whether because they cannot access their personal leave, or have exhausted their leave entitlements, or are engaged on a casual basis), in the event they are required to self-isolate may not report any COVID-19-like symptoms or contact with someone suspected of having COVID-19 out of concern that they will suffer significant financial detriment. This presents a significant danger to infection control at workplaces covered by the Health awards and particularly in the aged care sector.
The Full Bench held that employers covered by the Health awards generally appear by this time to have successfully adopted work procedures and provided PPE such as to minimise the risk of infection in institutional settings. The Full Bench found that there appears to have been a widespread recognition amongst employers in the health and care sectors that where employees have been required to self-isolate in order to ensure that the workplace is protected from infection, it may be necessary to make special arrangements for the payment of such employees where they have no or insufficient leave entitlements to access.
The Full Bench did not consider there was a necessity to establish a paid pandemic leave entitlement for any employee who had actually contracted COVID-19 as a result of infection in the workplace and had to take time off work, since the employee (even if engaged on a casual basis) will be entitled to payment under the applicable workers’ compensation scheme in that circumstance. However, that position is distinguishable with respect to the situation where a health or care worker has to spend time off work because they are self-isolating as a result of potential contact with a suspected COVID-19 carrier in the course of employment or the display of potential COVID-19 symptoms. In these situations, workers’ compensation entitlements would not apply if the worker ultimately tested negative for the virus. Employees in that position might not be able to access personal carer’s leave (even if they have an entitlement to it) without the agreement of their employer because they are not unfit to work because of personal illness. This is the ‘regulatory gap’ referred to in the April decision. The Full Bench considered that this regulatory gap has greater significance for employees covered by the Health awards (excluding the Pharmacy Award and the Supported Employment Services Award) because of the greater risk and likelihood that that they will be required to self-isolate, and because of the critical importance of ensuring that employees self-isolate where necessary rather than not disclosing their position and continuing to work out of financial need.
On a ‘fairly fine balance’ the Full Bench was not presently satisfied that the grant of the unions’ applications was necessary to achieve the modern awards objective, however the Full Bench determined that it would not dismiss the applications at this time. The position in respect of the COVID-19 pandemic has the potential to radically change in a matter of weeks. The Full Bench noted that the events which were occurring in Victoria were disturbing and, although the recent increase in cases has been the result of incidences of community transmission, the most recent information to which they earlier referred suggested that there may have been some spread of infection into the hospital system. The Full Bench determined that the appropriate course of action at that time was to stand the matter over on the basis that it may be relisted on request as short notice if there continued to be a significant deterioration of the position. The Full Bench would also monitor events and may relist the matter of its own initiative if considered necessary. The matter was adjourned.
In a Statement issued on 22 July 2020 [ FWCFB 3834] (the 22 July Statement) the Full Bench identified that there had been a significant change in circumstances since the 8 July Decision was issued. The Full Bench expressed a provisional view that the significant change in circumstances would justify the grant of a paid pandemic leave provision in the Aged Care Award 2010 (the Aged Care Award). In the 22 July Statement the Full Bench noted that there had also been an announcement published on 20 July 2020 of a one-off $1,500 payment to financially support Victorian aged care workers who have been instructed to self-isolate or quarantine at home because they are either diagnosed with COVID-19 or are a close contact of a confirmed case, but cannot rely on sick leave while absent from work. The Full Bench considered that it might be that the contemplated scheme of payment referred to in the announcement would constitute an adequate substitute for any award variation to provide for paid pandemic leave that they might make and/or that the announcement reflects an industry consensus reached between governments, employers and unions as to how the current situation in the aged care industry in Victoria should appropriately be dealt with. Interested parties were invited to file written submissions responding to the provisional views expressed.
On 24 July 2020 the Full Bench issued a further Statement [ FWCFB 3906] (the 24 July statement) stating that in submissions filed by the ACTU, the HSU and the ANMF it was contended that, to give proper effect to the reasoning in the 22 July Statement concerning the effect of the COVID-19 pandemic in the residential aged care sector, it would be necessary to extend any paid pandemic leave entitlement to persons working in the sector who are covered by the Nurses Award 2010 (the Nurses Award) or the Health Professionals and Support Services Award 2020 (the Health Professionals Award). The Full Bench expressed the provisional view that those submissions had substantial merit, and proposed to give urgent consideration as to whether a paid pandemic leave entitlement of the type foreshadowed in the 8 July Decision should be extended to employees who work in residential aged care facilities and are covered by the Nurses Award or the Health Professionals Award. Again, interested parties were invited to file written submissions.
The seriousness of the position in the aged care sector in Victoria is demonstrated by the measures taken by the Commonwealth and Victorian Governments in respect of that sector to provide financial support to prevent aged care workers working at more than one facility to:
The Full Bench held that there was a clearly manifested elevated risk of exposure to COVID-19 infection and of being required to self-isolate in the residential aged care sector in Victoria. Based on the evidence and information before it, the Full Bench considered that the Aged Care Award should be varied to provide for paid pandemic leave in accordance with the provisional view expressed in the 22 July Statement.
The Full Bench considered that such a variation was necessary to achieve the modern awards objective in s.134(1) of the Fair Work Act. The Full Bench was also persuaded that it was equally necessary, in order to meet the modern awards objective, for the Nurses Award and the Health Professionals Award to be varied to provide for paid pandemic leave for employees covered by those awards who are employed by residential aged care providers or are required to work in residential aged care facilities.
The Full Bench stated that this decision and the award variations made will not conclude this proceeding. The paid pandemic leave entitlement awarded in the current urgent circumstances may require adjustment, in light of continuing developments, and it is possible that future events may require the consideration of the extension of the entitlement to other awards. The matter was adjourned, but any party may apply to have the matter relisted at short notice, and the Commission itself will continue to monitor developments and may relist the matter of its own initiative.
The applicant in this matter (Bervar) sought orders that would either suspend or restrict the exercise by the United Workers’ Union (UWU) of entry rights at the company’s facility at Campbellfield in Victoria. Bervar contended that the proposed restrictions were warranted in light of the COVID-19 pandemic and the recent conduct of the union and its officials. Bervar submitted that the UWU has sought entry to its premises without genuine cause and that for this reason, as well as to reduce the risk of COVID-19 transmission, the Commission should by order prevent or limit the UWU’s entry to the site.
The application was opposed by the UWU, who contended that its officials have acted appropriately at all times, and that the orders sought by the company would unjustifiably fetter statutory rights.
The Commission noted that it cannot issue orders under s.505 of the Fair Work Act simply because there is a disagreement about right of entry. Bervar submitted that the dispute related to its contention that permit holders have failed to comply with reasonable requests that they comply with an OHS requirement that apply at the premises, contrary to s.491, and that they have also sought to exercise state OHS entry rights without complying with the requirement, contrary to s.499.
The Commission accepted that the dispute was about the operation of Part 3-4 of the Fair Work Act, however the Commission could not identify any reasonable request with which the permit holders have failed to comply. The Commission noted that Bervar’s case focused substantially on what it considered to have been unfounded notices of suspected contraventions. Such matters do not affect the analysis of whether permit holders have failed to comply with a reasonable requirement to comply with an OHS requirement.
The evidence did not establish that there has been any failure by a permit holder of the UWU to comply with a reasonable request by the company to comply with an OHS requirement. The Commission found that there was no proper basis to make an order in relation to this matter, because the premise of the company’s position has not been established.
To assist parties the Commission offered the following view: while ‘Victoria remains in a declared state of emergency and disaster, it would be a very good idea for the parties to cooperate and deal with any concerns about suspected contraventions remotely, in those cases where it is reasonably practicable to do so’ … ‘where practicable, during the stage 4 lockdown, the union first contact the company and ask it to investigate and remediate suspected contraventions before seeking entry to the site, and that the company for its part actively cooperate by immediately investigating concerns raised by the union, reporting back, and taking any necessary remedial action’. The application for orders under s.505 was dismissed.
The respondent in this stand down dispute is a nationally operating meat processing and wholesale sales business based in Adelaide with processing operations in multiple states supplying national and global export markets. The applicant was employed as an export documentation clerk. The COVID-19 pandemic has disrupted global economic activity and whilst the respondent did not cease operating, from both a logistical and demand perspective the impact of COVID-19 on its business has been material. Some parts of the business have been more impacted than others. The respondent had to take steps to protect its commercial interests, including reducing its labour force by not rostering some casuals, by standing down some permanent employees and by not filling some positions as they become vacant. Approximately 300 employees had been stood down, and whilst most staff were eligible for the JobKeeper programme not all were.
The applicant notified staff that the impact of COVID-19 required the business to stand down some head office personnel. This included the applicant who was notified that he would be stood down without pay from 4 May 2020 with his stand down to be reviewed on 29 June. The applicant was one of the employees who was not eligible for JobKeeper.
After six weeks without earning income the applicant sought to be made redundant rather than remain on indefinite stand down. The respondent refused and as a result the applicant lodged a dispute. He challenged the stand down on two grounds, that it was not authorised by s.524 of the Fair Work Act and the terms of the stand down and the employer’s conduct during the stand down made it unfair.
The Commission noted that even though the parties agreed during the life of these proceedings to a redundancy on agreed terms, each recognised that the redundancy agreement did not resolve the stand down dispute. The Commission considered that what constitutes a ‘stoppage of work’ in s.524 should not be so broadly construed as to include a mere downturn in business activity nor be so narrowly applied as to require the entire cessation of business activity. For there to be a stoppage of work some defined business activity with respect to which work is performed needs to cease, but not the cessation of business activity entirely. Similarly, an employee in those areas may not be able to be usefully employed even though other employees are able to continue working.
The Commission found that the work did not stop; simply the demand for the level of work in a continuing business unit reduced in response to an external event. The Commission held that this was not a stoppage of work within the meaning of s.524. The Commission must also take into account fairness, as required by s.526(4), and found that whilst it was fair for the respondent to reduce working hours in the export documentation team, to impose the whole burden of reduction in hours on one full-time employee, whilst retaining full-time employment amongst other members of the business unit, was unfair. The Commission was not satisfied that the respondent fairly selected the applicant to carry the burden of reduction on an objectively verifiable basis and held that a fair approach would have been for the respondent to apply some apportionment to the reduction to comparable employees in the export documentation team, not singularly to the applicant.
The Commission found that the stand down was not consistent with the Fair Work Act. The Commission also found that it was appropriate to provide a proportionate remedy to resolve the dispute, and that that it was appropriate that the remedy bear some relationship to the component of the income loss incurred. The Commission calculated that payment for three weeks was a proportionate and reasonable payment that the respondent should make to the applicant as a contribution to his income loss during his stand down.
This matter relates to a dispute in relation to a decision made by the respondent (PGS or the school) to stand down some employees during the period in which PGS had moved to remote learning. The decision was made following a direction by the Victorian State Government as part of its response to the COVID-19 pandemic in Victoria.
The dispute was initially raised by the Independent Education Union of Australia (IEU) in relation to stand down notices given to three employees on 14 August 2020. The IEU advanced the application in relation to three employees. The employees, employed as classroom assistants and library technicians, had been notified of the stand down until 13 September 2020. The dispute was expanded to encompass a further notice extending the stand down until 25 October 2020.
The Commission considered whether there has been a stoppage of work and, if there has, if it is for any cause beyond the reasonable control of the employer. In doing so the Commission considered the decisions in Stelzer, Bristow Helicopters and Coral Princess Cruises. The Commission was satisfied that COVID-19 is the type of event contemplated by s.524(1)(c) of the Fair Work Act.
PGS had argued that the degree of disruption of work for such a circumstance to come within a ‘stoppage of work’ in s.524(1)(c) did not need to be any greater than the disruption encompassed by a strike (s.524(1)(a)) or a breakdown of machinery (s.524(1)(b)). PGS further argued that the fundamental business of the school is to educate students onsite.
The Commission noted that many students had been learning remotely, from young children through to University students and to ‘conflate the place where the education is delivered or method of delivery with the delivery of education itself’ would be wrong. The Commission did not accept that the business of PGS is to provide ‘onsite’ education and was not satisfied that the work of the school had stopped as contemplated by s.524(1)(c).
The Commission noted that not all work of the library had ceased, and that the teacher/librarian was not stood down. Online library services also remain. The Commission was not satisfied that the business activity of classroom assistants had ceased as their responsibilities were not necessarily attached to the physical space they work in. The Commission did not accept that there has been a stoppage of work within classroom teaching or the library (to the extent they can be classified as distinct business activities) for reasons beyond the control of PGS. The Commission was not satisfied the necessary pre-requisites for a stand down had been met.
The Commission noted that given the importance of work, the decision to stand an employee down is not a decision to be taken lightly. Such a decision should not be taken solely to resolve a financial strain on the employer. Section 524 does not provide for an unrestrained right to stand down an employee. In this situation the Commission did not consider that the grounds existed for standing down employees. Notions of fairness do not support a view that the stand down should be allowed to remain in circumstances where the jurisdictional basis for that stand down does not exist. The Commission found that the stand down of employees was not in accordance with the provisions of s.524.
The Commission ordered that PGS notify each affected employee that the stand down notified on 14 August 2020, extended on 11 September 2020 and further varied on 28 September 2020 is withdrawn. The Commission further ordered that the employees are permitted to return to work as directed by PGS on their next scheduled working day. The order to come into effect at 9.00am on 30 September 2020.
This dispute concerned a JobKeeper enabling stand down direction issued to the applicant which directed that his minimum hours of work be reduced from 80 to 48 per fortnight. The respondent notified the applicant it intended to issue a JobKeeper enabling direction. The applicant contested the reasonableness of the direction, submitting that racing events in Western Australia had not been disrupted. The applicant further submitted that the direction was given to him only, where at the same time other staff were being told that business was returning to normal.
Live Events contended that its direction was lawful and reasonable, submitting that the normal working hours of employees were disrupted at the time the direction was issued. They further submitted that the COVID-19 situation was fluid and sporting events could be cancelled at short notice.
The Commission found that the direction issued by Live Events to the applicant was authorised by the Fair Work Act, however the level of reduction of hours provided for in the direction was not proportionate to either the actual or prospective rosters of the applicant. At the time Live Events imposed the direction reducing the applicant’s hours to 48 hours per fortnight (a 40 per cent reduction), Live Events lifted the 40 per cent reduction imposed on other staff to a figure of 20 per cent.
The Commission found a contingency which is so disproportionate from actual circumstances, or from those reasonably forecast, is an unreasonable direction. The Commission issued an order pursuant to s.789GV(4)(c)(ii) of the Fair Work Act substituting a different JobKeeper enabling stand down direction. The words: ‘Your minimum hours of work will be 48 hours per fortnight’ in the original JobKeeper enabling direction were substituted with ‘Your new minimum hours of work will be no less than 64 per fortnight where in all the circumstance this reduction is necessary and reasonable’. The order took effect from 11:59pm on 3 July 2020.
At first instance in this appeal the Commission found a JobKeeper enabling stand down direction issued by Prosegur pursuant to s.789GDC(1) of the Fair Work Act was not unreasonable. The TWU appealed. It contended that the decision was in error due to a misconstruction of s.789GK concerning reasonableness and involved an error of fact. The TWU submitted that the Commission:
Permission to appeal was granted and the Full Bench upheld the appeal on two bases.
Firstly, the Full Bench found the Commission had proceeded upon an incorrect construction of the meaning of expression ‘unreasonable in all of the circumstances’. At first instance, the Commission used an interpretation of unreasonableness in his review of the JobKeeper enabling direction that resembled a standard of legal unreasonableness or irrationality used in the context of judicial review of administrative action, and excluded notions of unfairness and inequity between employer and employee. The Full Bench considered that this approach was in error when regard was had to the statutory context of s.789GK, including the object of Part 6-4C of the Fair Work Act which refers to balancing employer and employee interests, and the purpose of s.789GK to direct attention to the interests of the employee in the context of an employer’s extraordinary power to make JobKeeper enabling directions.
Secondly, the Full Bench found that the Commission did not direct itself to the substance of the direction but assessed reasonableness by reference to the hours of work schedule. The Full Bench found this was erroneous because the hours of work schedule was concerned with a period before the direction was issued, and was not illustrative of the effect of the direction.
The Full Bench ordered that the appeal be upheld and quashed the first instance decision. The parties were directed to confer regarding the propositions set out by the Full Bench, and if necessary, the matter may be reheard by the Full Bench and submissions may include any proposals parties wish to advance for making of alternative JobKeeper direction.
The matter was reheard with the TWU submitting that the direction should:
Prosegur submitted a new JobKeeper enabling direction that rostered hours of a minimum of 60 hours a fortnight. The TWU submitted in reply that the proposed direction was liable to operate unreasonably and unfairly. The Full Bench found that the parties had agreed that it was necessary and appropriate that ordinary hours of full-time employees be reduced to a minimum of 60 hours per fortnight. Parties also agreed that there was no need to make a JobKeeper enabling direction in respect of part-time or casual employees.
The principal difference was in relation to minimum hours for casual employees. Prosegur proposed 50 hours per fortnight (ie an average of 25 per week) instead of the TWU’s 20 hours. The Full Bench found that Prosegur’s proposed direction should be adopted in resolution of the dispute. The modified direction proposed by Prosegur substantially addressed the concerns which caused TWU to initiate dispute proceedings.
The Full Bench ordered that the JobKeeper enabling direction issued by Prosegur to employees at its Moorooka depot on 9 June 2020 was set aside effective from 27 July 2020. In substitution the replacement JobKeeper enabling direction proposed by Prosegur filed on 18 July 2020 shall take effect on 27 June 2020 and remain in effect until 28 September 2020.
This dispute concerned a s.789GDC JobKeeper enabling stand down. In June the applicant sought to work from home due to coronavirus driven restrictions. The company’s Chief Operating Officer approved the application and the employee worked partly at home from 31 July 2020. On 4 August 2020 a human resources person from the employer’s parent company contacted him and advised that his working from home application had been rejected. His response to the parent company was to say that since he was already working from home and the Victorian Stage 4 Restrictions had started, his view was that he must continue to work from home in conformity with the restrictions. The applicant was nominated into JobKeeper on 7 August 2020 and subsequently issued stand down letter. The applicant contended that there was no shortage of work and that the stand down direction related to his request to work from home.
The Commission found no direct evidence of a connection. The respondent claimed it could not usefully deploy the applicant and as such cut his hours to zero due to its deteriorating trading position and applicant’s relative performance level. The Commission held that the stand down direction complied with the requirements of s.789GDC of the Fair Work Act however found it was unreasonable in the circumstances. The Commission ruled that reducing the employee’s hours to zero ‘when two others have not been reduced beneath 15 hours per week and three have not been affected at all, is in itself an unreasonable decision’.
The Commission found no evidence that the respondent complied with the s.789GM obligation to consult on JobKeeper enabling directions. The Commission considered that an appropriate Order would be to reduce the applicant’s ordinary weekly hours of 38 by 25 per cent. The Commission recommended that within a week the parties should exchange information including an outline of duties the employee could perform from home. The Commission issued an Order that the employer direction issued on 7 August 2020 be set aside and substituted with a direction that the employee work a reduced number of hours compared with his ordinary hours of work.
In this application for unfair dismissal remedy, the applicant employed as a Licensed Aircraft Engineer (LAME) since January 1978. In 2016 Qantas issued LAMEs with iPads for use at work. The LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees.
Upon being issued with the iPad in May 2016 and in accordance with instructions from Qantas, the applicant enrolled it into the then MDM system. Qantas subsequently changed the MDM system and the applicant enrolled his iPad into the new system known as ‘Comp Portal’. The Comp Portal app had two settings: ‘corporate’ and ‘personal’, regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed. The Comp Portal privacy statement informed applicant that Qantas could not see a range of personal material stored on the iPad including his web history and photographs. The applicant used the iPad to view and store pornographic and offensive material. Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad. The applicant’s iPad was seized by Qantas and forensically examined.
Following examination an investigation commenced in relation to allegations. During the investigation another female refueller alleged that on three occasions she witnessed the applicant viewing pornographic images in the workplace during working time. These allegations were substantiated and following a show cause process the applicant was dismissed. The applicant maintained that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The applicant further contended that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad. Qantas maintained that its investigation substantiated that the applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy.
The Commission found a lack of clarity in the SOC and IT Policies in relation to personal use and on the basis that the original Mobility Terms and Conditions suggest that private material can be stored on the iPad. It was also found that the lack of clarity was compounded by unsatisfactory training provided to the applicant when issued with the iPad.
The Commission considered distinction between private use and viewing pornographic and offensive material at work and held that regardless of lack of clarity in relation to private use of the iPad on his own Wi-Fi when the applicant was at home, the applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace.
The Commission found applicant’s conduct in viewing and storing pornographic and offensive material was a breach of the SOC and the IT Policies and despite the applicant’s apologies and expressions of regret to the female refuellers, the applicant’s denial he was viewing pornography implicitly impugned the credit of the witnesses. The Commission was satisfied there were valid reasons for the applicant’s dismissal and that his dismissal was not harsh, unjust or unreasonable. The application for unfair dismissal remedy was dismissed.
The applicant in this application for unfair dismissal remedy was engaged by the respondent, a labour hire business, as a casual employee on 23 January 2018. The respondent (APS) opposed the application on a number of jurisdictional grounds. There was however, no dispute applicant was engaged as an employee.
Upon commencement in the role, the applicant worked six days a week and was sent text messages each week with his roster for the following week. The applicant’s last day of work was 28 July 2019 and he did not return after this date due to medical issues. The applicant was declared unfit for work until the end of November 2019 and on 4 December 2019 obtained medical clearance to return to work on light duties. When applicant contacted the APS office, he was advised by APS he was made inactive on APS’s records as he had not worked for more than three months. APS further advised the applicant would need to reapply for work or be re-inducted. APS submitted the applicant resigned his employment during a telephone conversation on 2 January 2020 and there had been no dismissal at the initiative of the employer.
The Decisions of Wayne Shortland, Bronze Hospitality and Ponce were considered in this matter. The Commission acknowledged the nature of the labour hire industry was that where a resignation was given verbally it was not essential that it be confirmed in writing or that in the absence of a request an employment separation need be issued. It was also contended that in labour hire, there may be a lengthy period where no work is provided, however an employer of a casual employee does not repudiate the employment contract when it fails to offer another shift. Further, a casual employee remains employed until a decision is made by the employer that there is no further work and no further work will be offered.
The Commission was satisfied that the applicant met the requirements of s.382 of the Fair Work Act. The Commission was not satisfied the applicant actually resigned his employment on 2 January 2020 during a telephone conversation as the applicant continued to engage with APS in respect of seeking employment after 2 January 2020 without it being confirmed by APS that it was their understanding that he had resigned, including their last correspondence of 4 March 2020 which failed to mentioned resignation but provided other reasons for the employment termination.
The Commission found the applicant’s dismissal effective as of 4 March 2020 was made within the prescribed period. APS’s jurisdictional objections were dismissed. Commission held that the matter will be subject to further directions and if necessary, arbitration on the merits of the unfair dismissal application.
In this application for an unfair dismissal remedy, the respondent lodged a jurisdictional objection that the applicant was a casual employee and was not regularly and systematically employed, had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. The jurisdictional objection upheld in 20 September 2019 decision [ FWC 6448]. The September was decision appealed and a Full Bench of the Commission quashed the September decision and remitted to a Commission Member for final determination [ FWCFB 306].
The applicant employed as a casual sales assistant. The respondent argued that applicant failed to properly notify of her absences, sent intimidatory and disrespectful emails and created a threat to the health and safety in the workplace. The applicant had also covertly recorded conversations between herself and the respondent.
Commission considered that the recordings were not consistent with the respondent’s version that the applicant had behaved aggressively although the covert recordings would constitute a valid reason for dismissal. The Commission however noted the recordings were not the reason relied on for the dismissal and could not have been as the employer was unaware of the recording until the filing of materials in this matter. The Commission noted that the applicant did not intend to harm the employer by making the recordings and could have achieved the same objective if she had of advised the respondent that she was making the recordings.
The Commission was satisfied that the dismissal of the applicant was unreasonable because she was not notified of the reasons for her dismissal and did not have an opportunity to respond. The applicant was also effectively denied the opportunity for a support person. The Commission found that the applicant was unfairly dismissed.
The applicant submitted that reinstatement was an appropriate remedy. The Commission noted that given the conduct of the applicant having recorded conversations, there was a likelihood that on return to work there would be disciplinary action which would likely result in the applicant’s termination. The Commission further noted that trust and confidence was lost as a result of the recordings and reinstatement would be inappropriate in the circumstances. The Commission held that Directions were to be issued to elicit necessary information to consider and finalise the matter of compensation.
In this matter the applicant was employed as a catering assistant at an aged care and was dismissed following an incident where he deliberately coughed in the face of a Registered Nurse. It was alleged that the applicant acted this was as he was annoyed that he needed to have his temperature taken for COVID-19 reasons prior to commencing work. The respondent further submitted that the applicant was frustrated that the temperature checking process was taking too long and coughed directly in the nurse’s face to express his dissatisfaction. The applicant had received training in the form of ‘toolbox notes’ concerning the need for strict hygiene measures while at work and that the applicant had signed the notes. The applicant submitted that he coughed involuntarily, and it was too sudden for him to put his hand over his mouth.
Commission noted that the registered nurse was not an employee of the respondent but rather a contractor and had no personal interest in the outcome of the matter. The evidence of the nurse was compelling and cogent while the evidence of the applicant was not convincing in respect to how he coughed and why he was unable to move away from the nurse to prevent a direct cough on another person. The Commission further noted that the applicant did not immediately apologise and that it was only until later when he was directed to apologise that he reluctantly did so. The applicant’s failure to instantly recognise that his conduct was a serious incident that was contrary to the known hygiene procedures in an aged care facility during a pandemic, raises the incident in its seriousness exponentially.
The Commission accepted that the applicant’s behaviour was inconsistent with all expectations of the employer and posed a potential serious health risk to the residents and employees at the facility and understandably led to a direction that the applicant was to no longer work at the site. The Commission found that applicant had not made out his case that his dismissal was unfair, and as such the applicant’s case was dismissed.
In this application for unfair dismissal remedy, the respondent objected on basis that applicant resigned from her employment. The applicant was employed as a manager accountant and on 9 December 2019, applicant signed duplicate resignation letters that had been prepared for her by the employer.
The resignation arose from a discussion that occurred during an office Christmas party that had been organised by the employer. During the Christmas party, a colleague of the applicant informed the company Director, Mr Shen, that the applicant had been spreading rumours that he was having an affair with one of his employees and that he had brainwashed another employee. Mr Shen met with the applicant and confronted her about the rumours with the applicant denying spreading rumours and demanding to know the names of the persons who had accused her of spreading the rumours. The applicant and Mr Shen subsequently called all staff into a meeting room and asked for anyone who had heard the applicant spreading rumours to raise their hands, no staff raised their hands. It was then decided that a ‘secret ballot’ should be held to ask staff if they had heard the applicant spreading rumours. The results of the ballot indicated at least two employees had heard the applicant spreading rumours. The applicant maintained that she did not spread any rumours. The applicant alleged that the Mr Shen then produced two copies of a signed resignation letter and demanded that she sign them. The applicant submitted she was crying and upset but signed the letters and left the office.
The applicant submitted that the she was subjected to the embarrassing and unfair secret ballot vote and forced to sign the pre-prepared resignation letters and that this clearly amounted to constructive dismissal. There was no evidence to suggest that the applicant was contemplating or disposed to resignation prior to the meeting with Mr Shen.
The Commission noted resignation of the applicant was clearly a response to the conduct of the employer. Such circumstances are contemplated by the provisions of s.386(1)(b) of the Fair Work Act. The Commission considered the decision of Mohazab considered and factual matrix considered of the matter. The Commission noted a number of bizarre aspects of the employment circumstances which provided contextual background to the dismissal including that Mr Shen had provided a new female employee with a ‘hot pink’ laptop and that Mr Shen had spent over $6000 on the Christmas party which was held over two nights at a residential premise. The employer also facilitated a workplace environment that appeared to provide ‘significant potential for innuendo driven banter and rumour mongering amongst what appeared to be a group that was generally comprised of young, impressionable and predominantly female employees, who would understandably be seeking to impress their male employer, Mr Shen’.
The Commission went on to note that instead of investigating and considering the rumours in a careful and considered manner, Mr Shen called the applicant into a meeting and directly accused her of ‘making up’ the rumours. Although it was the applicant who suggested the staff meeting to enable a testing of the accusations that had been made against her, that course of action was so inappropriate and unpredictable that it should have been rejected by the respondent. Mr Shen immediately translated the results of the secret ballot process as confirmation that the applicant had both created and spread the rumours. It did not occur to Mr Shen that others who may have been involved in the creating and/or spreading of the rumours had successfully transferred all culpability to the applicant, who may have been either entirely or in large part innocent of either creating or conveying the rumours.
The resolution of factual contest regarding who prepared the resignation letters was not vital to the determination of the question of whether the applicant was forced to resign. The resignation of the applicant was the understandable and likely result of circumstances where the conduct of the employer had humiliated and singled out the applicant for all blame in respect of the rumours. Further evidence confirmed that before the first meeting with the applicant on 9 December 2019, Mr Shen had predetermined that he would present the applicant with the resignation letters. The Commission found the conduct of the employer which involved Mr Shen was, on any objective and reasonable assessment conduct that was intended to produce, or was likely to result in, the resignation of the applicant. Mr Shen was confident that his conduct would result in the resignation of the applicant, and he arranged for the preparation of her resignation letters before he confronted the applicant with the allegations of her involvement in the rumours.
The applicant had no realistic alternative option but to resign, and as such the applicant was dismissed in satisfaction of the terms of s.386(1)(b). The Commission found there was no valid reason for the dismissal of the applicant. The applicant was ultimately dismissed without a valid reason related to her capacity or conduct. The conduct of Mr Shen was severely flawed, and the confrontational approach adopted was designed to create an emotionally charged incident and it deprived the applicant of any natural justice. The Commission held that the dismissal harsh, unjust and unreasonable and ordered compensation of $40,940.00.
In this matter the Construction, Forestry, Maritime, Mining and Energy Union appealed against decision to approve the McNab Constructions Pty Ltd Enterprise Agreement 2020 with undertakings. The appellants sought permission to appeal on the grounds that the Commission erred in the assessment of the Better Off Overall Test (BOOT) and erred in finding that the Agreement was genuinely agreed.
The Commission at first instance was told that the respondent explained the Agreement to employees through steps that included meetings with employees as well as providing summary material. The Commission was not provided the summary material at first instance. The appellant submitted that without considering the content of the summary material the Commission could not be satisfied that the respondent explained the Agreement to employees as required by s.180(5). The appellant further submitted that this meant that the Commission could not be satisfied that the Agreement was genuinely agreed to.
The Full Bench considered One Key Workforce (No 2) and found that without knowing the content of the summary material the Commission could not be satisfied that the Agreement was genuinely agreed to. Permission to appeal was granted. The grounds of the appeal relating to the BOOT were rejected, however the grounds of appeal relating to genuine agreement was upheld. The decision at first instance to approve the Agreement was quashed. The application was remitted for redetermination.
This appeal by the Transport Workers’ Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union was made against the decision to approve the Aerocare Collective Agreement 2018 with undertakings. The appellants sought permission to appeal on the grounds that the Commission denied the appellants procedural fairness, erred in its assessment of the Better Off Overall Test (BOOT) and erred in its consideration as to whether the undertakings resulted in substantial change to the Agreement, or financial detriment to employees.
The Commission at first instance requested additional information from the respondent to determine whether the Agreement passed the BOOT (BOOT information). The appellants submitted that the modelling and BOOT information used in the approval decision was not available to them. The Full Bench considered that the appellants did not request copies of the BOOT information, noting that the Commission at first instance found that the BOOT information provided by the respondents was unhelpful.
The Commission assessed the BOOT by comparing 200 randomly selected ‘at risk’ employees out of the 2036 employees covered by the Agreement. The appellants submitted that the Commission’s methodology was not consistent with the principles in Re Loaded Rates Agreements.
The Full Bench found that the randomised sample approach taken by the Commission was not consistent with Re Loaded Rates Agreements. The Full Bench found that the Commission was not able to reach a state of satisfaction that the Agreement passed the BOOT.
Permission to appeal was granted. The grounds of appeal relating to procedural fairness were rejected however the grounds of appeal relating to the BOOT were upheld. The Full Bench determined that it was not necessary to consider the grounds of appeal relating to the acceptance of undertakings. The decision at first instance to approve the Agreement was quashed and the application remitted for redetermination.
This application was filed by the Construction, Forestry, Maritime, Mining and Energy Union (MUA) to deal with a dispute involving the stand down of employees. Employees of DP World Australia (DPW) were stood down during the period 15–16 February 2019. Employees refused to work on a vessel until safety issues were resolved and the Deputy Branch Secretary of the Sydney Branch of the MUA was allowed on site. Employees were stood down during evening shift of Friday 15 February 2019 on the grounds that there was no useful work for the employees to do because work had stopped due to unprotected industrial action. The employees also stood down during the night shift of Friday and the day and evening shifts of Saturday 16 February 2019 on the grounds that there was no useful work for the employees to do because work had stopped due to four SafeWork NSW Prohibition Notices being issued. The MUA contended that employees were wrongfully stood down and as a matter of fairness asked the Commission to restore the employees’ wages and to rescind warning letters that asserted the employees took unprotected industrial action. DPW resisted the application on the grounds that it was entitled to stand down the employees and further asserted that that they were obliged by s.474 of the Fair Work Act not to pay employees for the period of unprotected industrial action and the relief sought by the MUA is beyond the power of the Commission to grant because it would involve the exercise of judicial rather than arbitral power.
The Commission considered whether employees engaged in industrial action on the evening shift and part of the night shift on Friday 15 February 2019. Employees cannot be said to have taken industrial action if the action was based on a reasonable concern about an imminent risk to health or safety for the purposes of s.19(2)(c) of the Fair Work Act. The relevant evidence is not what the Safety Facilitators believed or what DPW management believed, but what the employees knew, what their response to that was and whether it was reasonable.
There was no evidence that the routine control measures which DPW proposed to put in place to manage the risks to employees was ever presented to the employees. The Commission considered that a reasonable person would have a concern about an imminent risk to their safety if they were to work the vessel.
The Commission was satisfied that the exception in s.19(2)(c)(i) is invoked by the circumstances presented and that the employees were not engaged in industrial action. As such, DPW was not entitled to deduct pay for this period in accordance with s.524(2)(c). The employees who refused to work on the evening shift on Friday 15 February 2019 should not have been issued with warning letters and should not have had pay deducted for part of the shift. The Commission further noted that the reason for the stoppage of work from the night shift on Friday onwards was the issuance of the prohibition notices and DPW have a legal obligation with the notices.
The Commission considered the stoppage of work from the night shift on Friday onwards was for a cause for which DPW could not reasonably be held responsible. The Commission noted the stood down employees were unable to be usefully employed because of the stoppage of work. Further considered as to whether relief sought by the MUA beyond the power of the Commission to grant. The matter of Bristow was considered. The Commission noted that to order payment of wages for this period would be an exercise of judicial power, and accordingly beyond the power of the Commission. As such, the Commission recommended that DPW restore the lost pay but noted that to realise their rights other than by consent, the employees will need to take an enforcement action in a court of competent jurisdiction. It was however, not beyond power of the Commission to order that the warning letters be removed from employees’ human resource files. The Commission considered that in all the circumstances and factoring in fairness DPW should write to each employee who refused to work on the evening shift on Friday 15 February 2019, and who received a warning letter, advising that the warning letter will expire as at the close of business on the date of the Commission’s decision. The employees who were stood down on the night shift commencing Friday 15 February 2019 from 10.52pm and on the day and evening shifts on Saturday 16 February 2019 should be compensated by receiving a payment equivalent to 50% of the pay that was deducted from them. The Commission directed MUA and DPW to confer about which employees were stood down and when. The Orders sought were to be provided to the Commission in draft form by 5pm on Wednesday 23 September 2020.
This appeal against decision to vary redundancy pay to nil, involved a small business employer. In the first instance decision the Commission granted the application and ordered that the redundancy entitlement be reduced to nil pursuant to s.120(2) of the Fair Work Act. The appellant contended the decision was beyond power and should be quashed because s.120 does not authorise the Commission to reduce redundancy entitlements conferred by an Award. The former employee was covered by the Building and Construction General On-site Award 2010. The Commission noted in first instance decision s.121(1)(b) provides an exclusion for small business employers that exempts them from the obligation to pay for redundancy. However, that s.123(4)(b) removes this exclusion for small business employers if there is an industry specific redundancy scheme.
The appellant submitted that permission to appeal should be granted because the decision raised issues regarding the interaction between the redundancy provisions in the Fair Work Act and industry-specific redundancy schemes contained in Modern Awards. The appellant further submitted decision manifested an injustice to Mr Fraser, was attended by sufficient doubt to warrant its reconsideration, and was inconsistent with several other single member decisions of the Commission.
The Full Bench noted that Commission’s power to reduce redundancy entitlements arises under s.120 and only applies if the employee is entitled to be paid redundancy pay under s.119. If s.119 is not the source of an employee’s redundancy entitlement, then there is no power under s.120 to reduce that entitlement. There was no dispute that redundancy entitlement arose under clause 17 of the Award. Section 119 did not apply to the appellant, and he did not derive a redundancy entitlement from it, because the effect of s.123(4)(b) was that Subdivision B of Division 11 of Part 2-2, which contains s.119, did not apply to him.
The Full Bench further noted that s.120 also did not apply because the appellant was not entitled to a redundancy payment under s.119 as required by s.120(1)(a) because s.123(4)(b) rendered s.120 inapplicable to him. The Full Bench found there was no power under s.120 to reduce the appellant’s redundancy entitlement. In the first instance decision, the Commission erroneously conflated the appellant’s redundancy entitlement under clause 17 of the Award with the redundancy entitlements provided for by s.119. The first instance decision involved a failure to recognise that the relevant effect of s.123(4)(b) is that, where an employee is entitled to redundancy pay under an industry-specific redundancy scheme in a modern award, the redundancy entitlements provided for in s.119 do not apply. The effect of error was that Commission acted beyond power in reducing the appellant’s redundancy entitlement under clause 17 of the Award pursuant to s.120 of the Fair Work Act. As such, permission to appeal was found to be in the public interest and as such permission to appeal was granted. The appeal was upheld and the decision quashed. The respondent’s application pursuant to s.120 was dismissed as incompetent.
This decision was an appeal against a decision where the Commission determined it had jurisdiction to hear and decide an application brought by the AMWU, under s.739 of the Fair Work Act and the disputes procedure in the AMWU, CEPU and Simplot Australia P/L National Collective Agreement 2014 – 2017 (the 2014 Agreement). The appellant contended the Commission exceeded its jurisdiction because the 2014 Agreement had been superseded by another enterprise agreement, the AMWU, CEPU and Simplot Australia P/L, Employee National Collective Agreement 2018 – 2021 (the 2018 Agreement).
The appellant further submitted the 2014 Agreement was no longer in operation and had ceased to be a source of authority to the Commission to determine a dispute referred to it under that instrument. The AMWU argued that although the agreement has ceased to operate under s.54, it continues to operate in practice or effect, only in relation to the resolution of disputes under Part 6-2.
The Full Bench noted that the Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate. The Full Bench further noted that AMWU’s construction would lead to the ‘absurd outcome that the disputes procedure of an inoperative agreement continues to operate in practice, while the rest of the agreement has ceased to operate at all’. Therefore any such continued operation of the agreement would be inconsistent with the notion of the agreement having ceased to operate at all. The Full Bench went on to note if the source of an agreement is an inoperative enterprise agreement which can no longer impose obligations or confer rights on the parties to a dispute. A party cannot rely on its inoperative dispute settlement term as conferring jurisdiction on the Commission to arbitrate the dispute. If the enterprise agreement has ceased to operate then the source of the Commission’s powers as private arbitrator cease to exist. In any event, a decision of the Commission would be unenforceable against the company as it cannot contravene the enterprise agreement unless the agreement applies to it as per s.51(1). The cessation of the operation of the agreement means ‘accrued rights’ no longer exist.
The Full Bench noted that the putative right to have a dispute determined under a superseded, inoperative agreement is to be contrasted with an actual legal right that has vested or ‘accrued’ under an industrial instrument while it is in operation. The contravention of an enterprise agreement while it is in operation can be sued upon for a six-year period because of s.544. A person may bring proceedings in a court for breach of s.50, a civil remedy provision.
The Full Bench granted permission to appeal in the public interest. The Full Bench held that the Commission’s original decision was affected by error as it misconstrued the applicable provisions of the Fair Work Act and wrongly concluded that it had jurisdiction to determine the application. The Full Bench found it was appropriate to rehear the AMWU’s application in the exercise of powers on appeal under s.607. The Full Bench determined that the Commission has no authority to deal with the dispute brought to the Commission under s.739 and clause 44 in the 2014 Agreement. The application was therefore dismissed.
In this matter the respondent sought an adjournment of an unfair dismissal hearing currently scheduled for 17 to 24 August 2020 to a date not before 2 December 2020. The primary reason respondent sought a delay in the hearing was that a witness for the respondent (referred to as JH) is 17 years of age; will not complete VCE until 2 December 2020; prior to completing VCE, JH does not want to engage in conduct that will divert him from his studies and is anxious at the prospect of giving evidence. JH’s father was concerned for his welfare and does not give permission for JH to appear until VCE is completed. A letter from JH’s treating psychologist was provided which supported an adjournment. Evidence as to the wishes of JH was provided by his father.
JH was a third party to the application but a critical witness for the respondent. The respondent submitted JH’s direct account of the applicant’s conduct and how it affected him and continues to affect him is highly probative to the following primary considerations including valid reason; harshness and reinstatement. The request was opposed by the applicant and submitted prima facie, is entitled to have the case heard without undue delay. The applicant further argued that the period sought is not insubstantial and cannot get any other teaching work with the proceedings on foot. The adjournment date is unreasonable and causes stress, anxiety and costs associated with an adjournment. The applicant further submitted there was no material put by the respondent that offers any explanation to the Commission as to the relevance and necessity of JH as a witness in this proceeding.
The matter of Esso was considered. The Commission acknowledged the effects of continuing unemployment, financial and mental strain on the applicant which weighed against granting the adjournment. It was further noted there will remain the ability for the applicant to be reinstated with orders for continuity and lost pay, should the applicant be successful in their application. The Commission was satisfied the evidence of JH will be a key matter in case. The Commission further satisfied the evidence of the father of JH and psychologist was most certainly in the interests of JH to not attend the hearing during his VCE year. The Commission found, in the interests of justice to grant the adjournment to a date not before 2 December 2020. The application to adjourn was granted.
The applicant in this matter filed a general protections application alleging the respondent took adverse action against him by injuring him in his employment and/or altering his position to his prejudice. On 29 July 2020 the industrial relations manager of the respondent filed a Form F8A Employer Response denying any contravention of the Fair Work Act. The Form F8A included information about the underpayment of wages allegations and an offer of settlement. The general protections matter resolved through conciliation however parties were not able to resolve issues concerning underpayment of wages. At the conclusion of the conciliation conference, the applicant requested that the Commission release him from the implied undertaking in respect of the Form F8A. The applicant via the Australian Workers’ Union commenced proceedings in the South Australian Employment Tribunal seeking unpaid wages and pecuniary orders against the respondent. It is well established that parties to legal proceedings are taken to give an implied undertaking not to use documents or information obtained in a proceeding for an unrelated purpose without leave of the Court or Tribunal. The applicant however submitted that a party may be released from the implied undertaking if special circumstances exist which justify release. The applicant sought to rely on the Form F8A in his case against the respondent and sought to be released from the implied undertaking.
The Commission accepted that the implied undertaking applies to documents disclosed to the Commission and noted that neither party disputed this proposition. The case of Springfield Nominees was considered. Once satisfied ‘special circumstances’ exist, the decision as to whether or not the discretion to release a party from the implied undertaking should be exercised will turn on a range of factors, the foremost being the achievement of justice in the second proceedings. The Commission considered whether there are special circumstances in the application. The Commission further noted the parties would be the same in the two proceedings and presumably would retain the same solicitors. Both proceedings arose out of the same relationship between the parties and they are likely to be common fact.
The Commission noted the material provided and sought to be adduced before the South Australian Employment Tribunal, was not relevant to the general protections application and appears to be an offer of settlement made to applicant. There was no reference to the offer being made on a without prejudice basis. The Form 8A contained material clearly relevant to the central issue likely to be in dispute, namely whether the applicant was underpaid. The Commission acknowledged that the Form F8A will assist the applicant to pursue his claim and will not prevent the respondent from defending it. The information contained in the Form F8A may be important to the ultimate determination of that dispute. The Commission decided to issue an order granting leave to the applicant to use the Form F8A lodged in his s.372 proceedings by the respondent in the conduct of his South Australian Employment Tribunal proceedings.
In this matter the appellant lodged two appeals in connection with an unfair dismissal application. The first appeal filed on 29 May 2020 in matter C2020/4086 (the first appeal) related to a number of interlocutory and procedural decisions (or purported decisions) made by the Deputy President, including granting RateIt permission to have legal representation. The second appeal, filed on 28 July 2020 in matter C2020/5851 (the second appeal), relates to a decision issued by the Deputy President on 15 July 2020 [ FWC 3598] (recusal decision) in which he dismissed the appellant’s application for him to recuse or otherwise disqualify himself from further involvement in the proceedings. The Full Bench granted permission for RateIt to be legally represented in the proceedings, as it considered that legal representation of RateIt would permit the matter to be dealt with more efficiently, having regard to the complexity of the matter and legal representation of RateIt would assist in ensuring the Full Bench properly understood the relevant aspects of that procedural history. The Full Bench considered that the appeals raised a number of legal issues of some complexity relating to procedural fairness and the principles applying to applications for recusal, and the second appeal also raised the novel proposition that the Commission has the power to determine the fitness to hold office of its own member.
The Full Bench considered it necessary to set out the factual background and procedural history of the unfair dismissal application. The appellant was engaged to perform work by RateIt on 19 November 2018. There was dispute as to whether he was engaged as an employee or independent contractor. The applicant’s engagement was terminated effective from 31 January 2020 and a subsequent unfair dismissal application made on 5 February 2020. The matter was then listed for conciliation. The conciliation conference was vacated after appellant wrote to the Commission alleging that he had received an ‘extortionate letter’ from lawyers acting for RateIt and requested the matter be referred to arbitration. The listed conciliation conference was cancelled, and the matter was referred to the Deputy President for arbitration on 27 February 2020.
RateIt’s lawyers made ‘jurisdictional objections’ in the Form F3 employer response. RateIt marked two of the listed grounds for objection: first, ‘The Applicant was not an employee’ and, second, ‘The dismissal was a case of genuine redundancy’. On the same day the appellant filed a submission with a number of accompanying documents in which he alleged that MKI Legal had engaged in conduct which was ‘misleading and deceptive’ and which ‘amounted to an attempt to extort the Applicant’s compliance with demands made by the Respondent’s solicitors and an act of contempt of the jurisdiction of the Commission’. The appellant objected to RateIt being legally represented. The Deputy President conducted the directions hearing on 6 March 2020 which was not recorded. Following the hearing, the Deputy President’s chambers issued a series of directions, some of the directions indicated that permission for legal representation was not granted, at least on an ongoing basis, at the directions hearing on 6 March 2020. On 16 March 2020, at the request of the parties, the matter was listed for a conciliation conference before a different Member of the Commission, this conference was not successful in resolving the matter. As such the matter was allocated back to the Deputy President.
On 30 March 2020, the appellant sent an email to the Associate to the Deputy President seeking ‘clarification of the issues which are to be the subject of the hearing on 8 May’. The appellant asked ‘The matter was escalated to a hearing without conciliation on my request for consideration of the conduct of the Respondent’s solicitors in the matter. I can understand that this would translate to a hearing on the Respondent’s request for legal representation, but I am unsure of the ambit of the hearing regarding jurisdiction. Is this hearing intended to be solely in regard to those two issues or is it intended that all issues between the parties are to be determined in this hearing?’. The Deputy President’s Associate responded to say ‘The matter is programmed for a hearing on the jurisdictional objections only. The hearing is not intended to address the “substantive issues” between the parties.’
When considering the first appeal, the Full Bench found the Deputy President erred in allowing RateIt to be represented at by MKI Legal at the hearings on 21 April, 8 May and 15 May 2020 without ever having made a decision prior to or at those hearings to grant RateIt permission for legal representation pursuant to s.596 of the Fair Work Act. The Full Bench accepted that decisions as to whether to grant permission pursuant to s.596 may be communicated in a fairly informal way, however a decision could not be said to have been made without it being communicated to the parties. For a court or tribunal to proceed on the basis that a certain decision had been made that affected the rights and interests of the parties without having informed the parties of that purported decision would constitute a failure to act judicially and a denial of procedural fairness [Australian Broadcasting Tribunal v Bond].
The Full Bench found that what happened was the Deputy President permitted RateIt to be represented in the proceedings by MKI Legal on 21 April, 8 May and 15 May 2020 without ever having issued a decision to grant permission for such representation. This occurred in circumstances where the appellant had strongly opposed the grant of legal representation and he was not allowed by the Deputy President on 8 May 2020 to be further heard on the issue. This constituted a contravention of s.596(1). The Full Bench held that this was not a mere procedural failure, but one which had the capacity to ‘fundamentally change the dynamics and manner in which a hearing is conducted’ [Warrell v Fair Work Australia].The Full Bench further noted that this constituted a denial of procedural fairness.
The Full Bench further found that it was readily apparent from the procedural history and the transcript that, as at the commencement of the hearing on 8 May 2020, the appellant genuinely did not understand that the Deputy President intended to deal with the issue of whether his termination was a genuine redundancy at that hearing. The Full Bench felt that the appellant’s misunderstanding was not unreasonable as the directions and listing issued on 6 March 2020 only identified the matters to be dealt with at the hearing on 8 May 2020 as the ‘jurisdictional objections’. The Full Bench considered there was substance in the appellant’s submission that a contention by a respondent to an unfair dismissal application that the dismissal was a case of genuine redundancy is not a matter which goes to the jurisdiction of the Commission to hear and determine the application. It is important in this context to understand the distinction between the concepts of jurisdiction and power. ‘The distinction between jurisdiction and power is often blurred, particularly in the context of “inherent jurisdiction”. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and “such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.’ [Harris v Caladine].
The Commission certainly has the jurisdiction to entertain and determine an unfair dismissal application if the application has been made in accordance with s.394 and the applicant is a person protected from unfair dismissal as defined in s.382. The substantive determinative functions of the Commission in respect of an application that is within jurisdiction are to decide whether the dismissal the subject of the application was unfair and, if so, what if any remedy should be granted. As s.385 makes clear, the substantive elements of an unfair dismissal (apart from the fact of the dismissal itself) about which the Commission must be satisfied are threefold:
The power to grant a remedy cannot be exercised absent the Commission reaching the requisite state of satisfaction about these three matters. Section 396 requires that certain matters, including whether the dismissal was a case of genuine redundancy, be determined before ‘considering the merits of the application’. The requirement to decide issues in a certain order of priority does not mean they need to be the subject of a separate, preliminary hearing, as not all the ‘initial matters’ identified in s.396 are jurisdictional matters. When determining whether a dismissal is a genuine redundancy (as defined) precedes and may obviate the need to determine other questions (‘merits’). In that sense it is commonly referred to as a ‘preliminary matter’. Nonetheless, it is a matter to be decided by exercising arbitral power on an application that is otherwise within jurisdiction.
The standard Form F3 for an employer’s response to an unfair dismissal application at paragraph 2.1 asks whether the employer has ‘any jurisdictional or other objections to the application’ (emphasis added), and objections identified under this part of the form have as a matter of usage often been referred to as ‘jurisdictional objections’. The Full Bench held that this was no doubt what the Deputy President had in mind when the directions of 6 March 2020 were issued, however the Full Bench found that it was clear that the appellant, a former lawyer, did not have the same understanding as to what constituted a ‘jurisdictional objection’. The position was further confused when RateIt’s lawyers filed submissions which dealt not only with the questions of whether the appellant was an employee or contractor and, if he was an employee, whether his dismissal was a case of genuine redundancy but also went further and discussed the appropriate disposition of the application even if the dismissal was not a case of genuine redundancy. The appellant then, properly, sought clarification of what matters would be the subject of the 8 May 2020 hearing, but the response from the Deputy President’s chambers of 30 March 2020 did not clearly identify the matters that were to be considered but merely reiterated that the hearing would deal with the ‘jurisdictional objections’ and not substantive matters. This merely reinforced the appellant’s existing understanding is shown by the fact that when the appellant filed his evidence and submissions on 17 April 2020, they did not touch upon the question of genuine redundancy. Soon after the commencement of the hearing on 8 May 2020, it quickly became apparent that the appellant and the Deputy President (and RateIt) were at cross-purposes as to the matters that were to be the subject of the hearing. The situation called for a sensible accommodation to allow the appellant to be given a fair opportunity to present his case in respect of the genuine redundancy issue whilst taking into account that RateIt appeared to have been operating on the same premise as the Deputy President concerning the issues that were before the Commission that day.
The appellant applied for an adjournment, which was not allowed. The Deputy President determined that the hearing should proceed, that the appellant should cross-examine RateIt’s witnesses and, importantly, that Mr McKerlie would then be allowed to give evidence on the issue and be cross-examined by RateIt on that evidence. He would also be allowed to file further written submissions on the genuine redundancy issue within seven days after the hearing. The Full Bench found that this appeared to have been a reasonable approach in the circumstances, since it balanced the need for the appellant to be afforded a fair opportunity to give evidence and make submissions about the genuine redundancy issue without throwing away the day’s hearing for which RateIt had prepared and made available its witnesses. As it turned out, by the end of the hearing there remained insufficient time for the appellant to give his evidence in chief concerning the redundancy issue and be cross-examined on this as well as in relation to the other issue of his employment status. The matter was stood over for further hearing on 15 May 2020. The appellant then filed, on 12 May 2020, his written submissions on the question of genuine redundancy which the Deputy President had permitted him to do and, in addition, a witness statement setting out the evidence which he wished to give in relation to that issue. However, RateIt objected to the filing or admission of this witness statement and the Deputy President, without giving the appellant an opportunity to be heard about this objection, effectively upheld it. The Full Bench found that by itself that constituted a denial of procedural fairness. Further, in upholding the objection, the Deputy President determined that no further evidence would be admitted in relation to the genuine redundancy issue in that the parties were required to proceed on the basis of the evidence filed as at 8 May 2020. The definition of genuine redundancy in s.389 is primarily fact-based, in determining whether a dismissal was a case of genuine redundancy, the Commission must make findings of fact, or fact-based evaluative judgments, about whether the employer no longer wanted the applicant’s job to be performed by anyone because of changes in operational requirements in the enterprise, whether the employer consulted with the applicant in accordance with any consultation requirements in an applicable award or enterprise agreement, and whether redeployment of the applicant would have been reasonable in all the circumstances. It is therefore necessary as a matter of procedural fairness for an applicant in an unfair dismissal case to be given a proper opportunity to give evidence in relation to these matters.
Because of the uncertainty in the expression ‘jurisdictional objections’ used in the Deputy President’s directions of 6 March 2020, the repetition in the use of this expression by the Deputy President’s chambers on 30 March 2020 when the appellant sought clarification of the issues that were to be determined at the 8 May 2020 hearing, the genuine misunderstanding which resulted from this and, ultimately, the Deputy President’s ruling on 12 May 2020 that the appellant would not be permitted to give evidence about the genuine redundancy issue, the Full Bench considered that the appellant was denied procedural fairness. The two errors identified by the Full Bench: namely allowing RateIt to be represented by MKI Legal without having decided to grant permission for legal representation pursuant to s.596 and denying the appellant procedural fairness in relation to the genuine redundancy issue were significant matters. At least the latter, and arguably the former, constitutes jurisdictional error, and both involve manifest injustice to the appellant. The Full Bench consider it would be in the public interest to grant permission to appeal in respect of the first appeal, as such permission to appeal was granted and to the extent identified the first appeal was upheld.
The Full Bench considered that the appropriate course, having regard to the history of this litigation, is to remit the appellant’s unfair dismissal application to Johns C, a member of the Full Bench, for further consideration (including the determination of any application for permission for legal representation) on the basis of the evidence admitted to date and such further evidence as the member may decide to admit. It was not necessary in the circumstances to deal with the other matters raised by the first appeal.
The grounds for the appellant’s second appeal, included that the Deputy President was unfit to hold judicial office as the Deputy President had demonstrated egregious and deliberate bias against the appellant in the conduct of the proceedings. Further submitted that it was contrary to the obligation of the members of the Fair Work Commission to allow the Deputy President to continue to preside over these proceedings or any other proceedings as his widely publicised conduct since his appointment to the Fair Work Commission is calculated to diminish public confidence in the Fair Work Commission. The Full Bench found that the first ground was not reasonably arguable as the Commission is not invested with power to rule on the fitness for office of its own Members. In relation to the second and third grounds, the relief which the appellant could expect to obtain if he was granted permission to appeal and his second appeal was upheld is that his matter is remitted for further consideration by a different member of the Commission. Having regard to the disposition of the first appeal, there would be no utility in the Full Bench considering the second and third grounds of the second appeal. For these reasons permission to appeal refused in relation to the second appeal.
The Commission is extensively varying existing awards as a result of the 4 yearly review of modern awards. The modern awards will be varied in 3 tranches during 2020.
In a decision published on 27 April 2020 [ FWCFB 2124], the awards in tranche 3 were divided into smaller groups.
The technical and drafting matters for the Educational Services (Teachers) Award 2010 and the General Retail Industry Award 2010 have been completed. The varied awards commenced operation on 1 October 2020.
The technical and drafting matters for another 10 of the awards in tranche 3 have been completed. The varied awards have been issued and will commence operation on 13 November 2020.
To see the decision relating to these awards, go to  FWCFB 5307.
Any outstanding substantive or common issues claims that have not yet been determined will be incorporated into the varied awards by way of a subsequent variation determination.
To find out which awards have been varied, and to access the new versions of the awards before they commence operation, go to the Modern awards list on the Commission’s website.
This section provides summaries of the Full Court of the Federal Court of Australia and Federal Court of Australia reviews of Commission decisions.
The applicant applied for an unfair dismissal remedy after being dismissed for refusing to use the respondent’s biometric fingerprint scanners to record his attendance at work. The applicant asserted that the biometric data is sensitive personal information under the Privacy Act 1988 (Cth), and the respondent was not entitled to require that information. The Commission in the first instance found that the scanners were a part of the respondent’s site attendance policy, and so the failure to follow the policy was a valid reason for dismissal.
On appeal, the Full Bench quashed the first instance decision, finding that the failure to comply with the policy was not a valid reason for dismissal with regard to the Privacy Act, and so the dismissal was unfair. The applicant’s requested remedy of reinstatement was determined to be inappropriate, and the maximum possible compensation was ordered.
The applicant instigated proceedings in the Federal Court to quash the decision of the Full Bench and have the matter reheard, as well as an application for judicial review of the Commission first instance decision. The applicant alleged apprehended bias, a complaint that was not dealt with by the Full Bench. The Court found that it was not in any interest of justice to allow the initial proceedings to continue. The applicant filed two further application or an extension of time and leave to appeal from the earlier decisions, alleging an abuse of process by the Court in dismissing his earlier applications. The Court found no merit in the applicant’s arguments and dismissed both matters on 21 August 2020.
Mr Milford lodged a general protections court application to the Commission alleging that he was dismissed in contravention of s.340 of the Fair Work Act. Coles raised a jurisdictional objection that Mr Milford’s dismissal took effect from his last casual shift on 1 October 2014. The Commission in the first instance found that the application was out of time.
Mr Milford applied for permission to appeal, and the Full Bench refused permission on the basis that Mr Milford could apply for an extension of time and so the appeal was premature. The Commission subsequently dismissed the application for an extension of time. Mr Milford again sought permission to appeal, and the Full Bench determined that the date of dismissal was to be determined by reference to the date of dismissal that had been alleged on the original application, irrespective of whether the allegation was correct in fact. The Full Bench found that the Commission had effectively determined the substantive dispute between the parties on the merits, which it was not empowered to do, and set aside the first and second decision, and referred the dispute back to a different Commissioner to be dealt with under s.368 of the Fair Work Act.
The application for judicial review sought to quash the decision of the Full Bench and require that the appeal be heard by the Full Bench in accordance with the law. The Full Court found that the Full Bench had misconstrued provisions of the Fair Work Act defining the boundaries of the Commission’s authority to deal with the dispute and so committed jurisdictional error. The Full Court quashed the decision of the Full Bench and ordered a Full Bench to hear and determine Mr Milford’s permission to appeal (and if granted, the appeal) on 11 September 2020.
The President of the Commission approved an update to Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement).
The form has been revised to make it less complex and less time consuming to complete. The changes include simplifying explanatory material, reordering the questions and sections of the form, and reducing the overall number of questions.
The updated Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) is available on the Forms page of our website.
The Commission has published an amended Form F34 – Application for a protected action ballot order, adding a new question asking how many employees are to be balloted.
The change was made in response to a request by the Australian Electoral Commission, to help them prepare for protected action ballots.
Links to all the Commission’s forms can be found on the Forms page of our website.
The Commission has published its annual report for the 2019–20 financial year following its tabling in the Australian Parliament.
The report is now available from the Annual reports page on our website.
The Commission has published its Corporate Plan 2020–21.
The plan covers the periods of 2020–21 to 2023–24 and has been prepared in accordance with the requirements of paragraph 35(1)(b) of the Public Governance, Performance and Accountability Act 2013.
From 1 July 2020 the application fee for dismissals, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act increased to $74.50.
Also effective from 1 July, the high income threshold in unfair dismissal cases has increased to $153,600 and the compensation limit is now $76,800 for dismissals occurring on or after 1 July 2020.
You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.
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