Welcome to the Fair Work Commission’s Quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
If you have any feedback about this newsletter, including suggestions for future editions, please contact email@example.com.
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 2021 and 30 September 2021.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) received Royal Assent on 10 September 2021 and commenced on 11 September 2021.
In summary, the changes to the Fair Work Act are:
The text of the Bill as passed and the explanatory memoranda are available here.
Justice Ross is the National Practice Leader for stop-bullying and sexual harassment. Commissioner McKinnon is the Deputy Practice Leader. Commission staff with experience in case management of applications for orders to stop bullying will also manage applications for orders to stop sexual harassment. The current intensive case management model which is underpinned by the principles of trauma-informed practice will continue to apply.
Detailed information on the Commission’s role in dealing with applications to stop sexual harassment at work will be available on the Commission’s website from 11 November 2021.
An implementation report (PDF) has been published which will be used as the basis for consulting with our users and stakeholders about changes to our current processes and the draft information materials prepared for orders to stop sexual harassment.
A statement (PDF) setting out the consultation and engagement process the Commission is undertaking to implement the changes to the Fair Work Act has also been published. Members of the public are invited to comment on anything contained in the implementation report and the draft materials prepared by the Commission. In particular, the Commission is calling for feedback on:
All feedback is to be sent to firstname.lastname@example.org by Monday 1 November 2021.
In collaboration with a network of legal organisations the Workplace Advice Service (the Service) offers up to one hour of free legal advice about unfair dismissal, general protections and bullying at work to eligible employees and employers.
We are pleased to announce that from 11 November 2021 the Service will expand to cover sexual harassment at work. The Respect at Work Act commenced on 11 September and under this Act, applications for orders to stop sexual harassment at work can be made from 11 November. The Commission will provide training to its partner organisations on the sexual harassment jurisdiction, including on such issues as trauma informed practice.
The Service aims to avoid unnecessary costs for all where an application does not have merit. It is focused on providing early intervention, helping clients in the early stages of their employment issue. The 2020–21 data on clients who received the Service showed that:
With the expansion and demand for the Service continuing to grow we are keen to hear from organisations interested in partnering with us. Please email email@example.com to register your interest.
The applicant who made this unfair dismissal application had been employed as a train driver since 2005. Outside of working hours the applicant was charged with high range drink driving and his driver’s licence was suspended. The applicant promptly notified his employer that he had been charged with the offence, was contrite and provided an explanation. The applicant was suspended with pay while the matter was investigated internally. The applicant was convicted of the offence and his driver’s licence was suspended for 6 months. As a result, the respondent dismissed the applicant for breaching its code of conduct.
The Commission found the drink driving offence lacked a requisite connection to the applicant’s employment [Rose v Telstra] and did not provide a valid reason for dismissal as the offence took place outside of work hours, the applicant was not on call and was not due to report for next shift until the following morning. The Commission also found that holding a driver’s licence was not an inherent requirement of the applicant’s role.
The Commission found there was no more than a hypothetical risk of damage to the respondent’s interests, including its reputation. The respondent had also ignored the rehabilitative steps undertaken by the applicant such as undergoing counselling.
The Commission found the applicant’s dismissal was harsh, unjust and unreasonable. The Commission found the respondent had not established a ‘sound and rational evidentiary basis’ for its loss of trust and confidence in the applicant. The Commission further found the connection between the offence and the applicant’s workplace only arose because the respondent’s code of conduct required staff to immediately notify their manager if they were charged or convicted of a serious criminal offence.
The Commission noted that while the offence was a serious criminal matter it had been dealt with in the appropriate jurisdiction. The Commission ordered reinstatement with continuity of employment, and compensation for lost remuneration from the date of dismissal to the date of reinstatement, less the notice paid to the applicant on dismissal.
In this matter the appellant sought permission to appeal against a decision and order of the Commission that an unlawful termination application under s.773 of the Fair Work Act was prohibited by s.723. At first instance the appellant alleged his termination contravened s.772 for 7 reasons. The respondent objected on the basis that the application was made contrary to the prohibition in s.723.
At first instance the Commission dismissed the appellant’s unlawful termination application under s.587, because it was satisfied that the application was prohibited by s.723 on the basis that the appellant could have made a general protections court application for 6 of the 7 alleged grounds of termination. The appellant argued that the Commission made errors on 2 grounds. First, the Commission wrongly concluded s.723 was a bar to application and did not provide a proper foundation for the application to be dismissed; and second, bias shown by the Commission by denial of procedural fairness and allowing the respondent to be represented by a lawyer.
Regarding the second ground of appeal, the Full Bench concluded that the bias grounds were not arguable and the contentions of denial of procedural fairness were without substance. The Full Bench found no appealable error by allowing the respondent to be legally represented. Permission to appeal on the second ground was refused.
Regarding the first ground of appeal, the Full Bench noted that s.723 only bars unlawful termination applications in relation to conduct that can also be the subject of a general protections court application. The Full Bench found that the Commission at first instance erred in dismissing the application under s.587 by failing to appreciate that appellant alleged he was terminated for all 7 reasons identified in his application, and as the Commission had correctly concluded, one of those allegations (namely, that the appellant was terminated because of his political opinion) could not be brought in a general protections court application. This was because the alleged conduct occurred in NSW and it is not unlawful under NSW anti-discrimination law. Permission to appeal was granted for the first ground. The appeal on the first ground was upheld.
The Full Bench quashed the first instance decision and order dismissing the appellant’s unlawful termination application. The Full Bench noted that the quashed decision and order should not be taken as it expressing any view about the merits of the course taken by the appellant, only that s.723 does not present a bar to the application. The unlawful termination application was remitted to the Regional Co-Ordinator to be dealt with under s.776.
The respondent to this application for unfair dismissal is a privately-owned business which has been operating in Australia for 30 years. The company holds catering contracts with many major sporting and recreational stadiums including Suncorp Stadium, Metricon Stadium, the GABBA, and AAMI Park.
The applicant was employed as a Venue Manager at Metricon Stadium on the Gold Coast. The applicant resigned from her employment. The question before the Commission was whether the applicant was forced to resign from her employment because of conduct, or a course of conduct engaged in by the respondent.
The respondent sent the applicant 2 warning letters in one week. The first warning related to the alleged intoxication of the Executive Chef at Metricon Stadium and alleged the applicant of ‘turning a blind eye’ to this. The second warning related to requesting 2 tickets for the Geelong v Richmond game from the Gold Coast Suns in breach of the respondent’s Gifts, Hospitality and Benefits Policy and Procedure.
The Commission was ‘astounded’ to learn that a large organisation, the size of the respondent, considered that it can issue written warnings to employees without a proper investigation and without affording an employee procedural fairness. The Commission found the applicant had ‘been held in high regard by the respondent until she was not’. The relationship began to deteriorate at the respondent’s initiative throughout 2020. The Commission held it was evident throughout the hearing that with no independence, the O’Brien family makes decisions as it sees fit, without regard to its own written policies, procedural fairness or a fair go.
The Commission found that the applicant was, in a relatively short period of time, faced with a situation where she had been ostracised and unfairly issued with 2 written warnings. The Commission was satisfied that the conduct engaged in by the respondent was the principal constituting factor leading to the termination. The Commission was further satisfied that there was sufficient causal connection between the respondent’s conduct to the applicant, and the resignation, to the point that it forced the resignation.
The Commission was satisfied that the respondent engaged in the conduct that it did, with an intention to bring the employment relationship with the applicant to an end, or that it would have that probable result. The Commission found the applicant resigned, having been forced to do so because of a course of conduct engaged in by the respondent. The Commission found no valid reason for the dismissal, it also found that the dismissal was harsh, unjust and unreasonable. The Commission decided that reinstatement was inappropriate and ordered compensation.
The respondent to this application for unfair dismissal objected on the basis it was made outside the time required in s.394(3) of the Fair Work Act and that the termination of employment was by way of genuine redundancy.
The applicant submitted that on 25 January 2021 he was asked to take annual leave in circumstances where there was a shortage of work. He further submitted that on 17 May 2021 the respondent notified the applicant’s representative that his employment had been terminated effective from 25 March 2021. The applicant submitted that the respondent relied on a letter which was purported to have been delivered to the applicant’s letterbox on 26 February 2021 as being notice of the termination. The applicant submitted that the respondent did not indicate to what address the letter was delivered, the time it was delivered, and what attempts were made to ascertain whether applicant had in fact received the letter and become aware of the termination.
The respondent submitted that on 25 February 2021 its Director attended the applicant’s home, however he was not home. The respondent further submitted that the Director left a termination for redundancy letter in the applicant’s letter box. The respondent submitted that in May 2021, the Director received a letter from the applicant’s solicitor questioning the applicant’s redundancy after taking annual leave.
The Commission considered Ayub and was satisfied on the basis of the evidence that the applicant never saw the respondent’s letter. The Commission was also not satisfied that the applicant had a reasonable opportunity to read the letter, as given the living arrangements of the applicant it was likely the letter was misplaced, and on that basis his dismissal was not successfully communicated to him by the respondent. The Commission concluded that the respondent did not communicate to the applicant that his employment had been terminated until 17 May 2021 and on that basis the unfair dismissal application was within time.
The applicant in this unfair dismissal matter was employed as a Shift Manager at NSW Trains. The applicant was investigated by the respondent due to misconduct allegations. This resulted in the respondent disciplining the applicant by reducing his grade from Rail Classification (RC) 6 Level E to RC6 Level A and his gross pay from $141,442 to $127,569.
The applicant alleged the respondent’s conduct constituted unfair dismissal. The respondent raised a jurisdictional objection and submitted that the applicant had not been demoted because his position, duties or location of work did not change, and he was still paid at the rate applicable under the NSW Trains Enterprise Agreement 2018 for a Shift Manager. The respondent submitted the applicant’s remuneration was not significantly reduced. The respondent further submitted that the applicant was not dismissed because disciplinary action taken in accordance with a contract of employment, enterprise agreement or legislation is not a dismissal for the purposes of s.386 of the Fair Work Act.
The Commission considered whether the applicant’s demotion constituted a dismissal, considering s.386 and several precedents. The Commission found that each of the levels from ‘A’ to ‘E’ in classification RC6 of the enterprise agreement was a different grade. This was due to the ability to progress levels depending on performance, the higher amount of remuneration payable at each level, and the language in the agreement. The Commission was satisfied that the applicant was moved to a lower classification, constituting a demotion within the meaning of s.386(2)(c). The Commission found the decrease in the applicant’s gross remuneration by $13,873 per annum involved a ‘significant reduction in his remuneration’ within the meaning of s.386(2)(c)(i).
The Commission then considered whether changes imposed on an employee by a demotion were permitted by a contract of employment, industrial instrument or other legislation, or resulted in the existing contract being terminated and replaced by a new contract. The Commission found it was irrelevant to determining if a demoted employee who remains employed by their respondent has been dismissed within the meaning of the Fair Work Act.
The Commission found that the applicant was dismissed within the meaning of s.386, despite his employment relationship with NSW Trains continuing. The Commission dismissed the jurisdictional objection raised by the respondent and will consider the merits of application made by applicant for an unfair dismissal remedy.
The applicant who lodged this application for unfair dismissal commenced employment with the respondent in 1997 and was working as storeperson at the time of their dismissal. The applicant answered his mobile phone while driving a forklift. He then dismounted the forklift to continue his conversation. The phone call related to the maintenance of the vehicle the applicant relied on to attend work.
The applicant acknowledged his error of judgment and apologised for his conduct. The applicant had an otherwise unblemished safety record over the course of his employment. The applicant was dismissed for a breach of the respondent’s safety policies. The policy stated that a breach ‘may’ lead to disciplinary action ‘up to and including’ termination of employment. There was no suggestion that the respondent had a zero-tolerance policy.
The Commission found that the breach of the safety policy was a valid reason for dismissal. However, the Commission found that the dismissal of a longstanding and remorseful employee, with no prior safety or disciplinary issues for an isolated incident that did not cause injury or harm, to be disproportionate and therefore harsh.
The applicant sought reinstatement. The respondent submitted that its trust and confidence in the applicant’s regard for safety was damaged to the point that an employment relationship was not viable. The Commission was satisfied that in the context of the applicant’s prior safety record, and from the applicant’s conduct during the proceedings, that no conduct existed to support a finding of a breakdown in the employment relationship. The Commission ordered reinstatement with continuity of service and lost pay, less 25% for the breach of the safety policy.
The applicant made a request to re-open his application for an unfair dismissal remedy. The application concerning an alleged dismissal was settled at conciliation on 28 April 2021. The parties were allowed a 3 day ‘cooling off’ period to opt out of the agreement. On 3 May 2021 the applicant requested that the Commission extend the ‘cooling off’ period. The applicant was informed that the conciliator could not extend the ‘cooling off’ period and that he must advise the Commission that day if he rejected the settlement. The applicant did not respond, and the Commission closed the matter.
On 19 June 2021 the applicant requested his application proceed to arbitration. The applicant submitted that no agreement had been made because he did not sign the agreement. The employer submitted that agreement had been reached, and it had complied with its obligations.
The Commission considered whether a binding settlement agreement had been reached, and whether the application had no reasonable prospect of success. The Commission considered s.587 of the Fair Work Act and several precedents. The Commission also considered the conduct of the parties following conciliation.
The Commission accepted that a binding settlement agreement was reached. The binding force of the agreement was not changed by the applicant’s decision not to sign. The Commission found that the applicant knew the ‘cooling off’ period expired on 3 May 2021 and his silence could reasonably be taken as acceptance. The Commission was satisfied that, as a binding settlement agreement was reached, the application had no reasonable prospect of success. The application was dismissed.
The applicant was dismissed from his employment for serious misconduct involving harassment, in breach of the respondent’s safe workplace policy due to a customer complaint. The customer alleged that the applicant made comments of a sexual nature towards her. The respondent alleged the applicant was dismissed due to the complaint and a history of formal warnings regarding his previous inappropriate behaviour towards female customers. The applicant denied he made the comments alleged in the complaint, and submitted he was not offered procedural fairness, as he was not shown the CCTV footage nor provided with the identity of the complainant during the investigation. The applicant also alleged that the respondent bullied him during his 5 years of employment.
The Commission found no evidence to suggest the applicant was bullied or targeted by the respondent. The Commission was satisfied that the applicant made the alleged comments, and that a reasonable person would have anticipated the comments were likely to cause the customer to feel harassed and cause offence. However, the Commission also held little to no procedural fairness was afforded to the applicant. The applicant was not afforded the full details of the complaint, was not interviewed, and was not given reasonable opportunity to respond to the reasons for the dismissal relied on by the respondent. The Commission found that the respondent had decided to dismiss the applicant before their investigation into the complaint commenced.
The Commission held that the applicant should have been provided with further particulars of the alleged incident, and an opportunity to view the CCTV footage. The Commission found that the respondent had no reasonable excuse for their failure to provide procedural fairness. The Commission found that the dismissal was unfair due to the lack of procedural fairness. The Commission ordered compensation be paid to the applicant amounting to 2 weeks’ wages plus superannuation, taxed according to law.
The respondent in this unfair dismissal application told 4 employees, including the applicant, that they would be made redundant in March 2021. After the applicant’s employment finished, someone told her that they had seen an advertisement for her former position. The applicant contended that her dismissal was not due to redundancy but due to other matters including sexual harassment and bullying, and that if her dismissal was a redundancy, it was not a genuine redundancy because the respondent did not reduce its employee numbers. The respondent argued that it advertised a position because its workload picked up at around the same time as the applicant’s dismissal, but the additional work was in digital printing and the respondent did not think that the applicant had the necessary skills to perform the role.
The Commission found that the applicant was covered by the Graphic Arts, Printing and Publishing Award 2020 despite the respondent’s argument that the applicant was not subject to an award or enterprise agreement. As a result, the obligation to consult about redundancy under s.389(1)(b) of the Fair Work Act was enlivened. The respondent failed to consult in accordance with cl 37 of the Award with the affected employees about major change likely to have significant effects. The Commission found that at best there was a one-way conversation followed by a termination letter. The respondent should have explained to employees why the decision was necessary, the reasons for selecting those employees, provided employees time to reflect on the proposal and then asked for any questions or alternate proposals in a resumed meeting the next day.
The Commission found the applicant’s termination was not a genuine redundancy within the limited meaning of s.389 due to the respondent’s failure to consult, but was a redundancy nonetheless, as the respondent no longer required the applicant’s job to be performed by anyone because of changes in operational requirements. Despite the advertisement for a new role after the applicant’s termination, it was not reasonable in all the circumstances for the applicant to be redeployed.
As the applicant’s termination was not a genuine redundancy, the Commission had to consider whether the dismissal was unfair. The Commission noted that a failure to consult may not be strongly considered by the Commission in determining whether a dismissal was unfair, where consultation was highly unlikely to have negated the operational reasons for the dismissal. The Commission held that changes in operational requirements and the lack of redeployment opportunities constituted a valid reason for dismissal. The Commission found insufficient evidence to establish that the applicant’s dismissal was a result of harassment or bullying. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.
In July 2021, the applicant told the respondent’s managing director that she felt uncomfortable going to work because she felt her colleague was bullying her. The managing director said, ‘don’t do any drama’ and ‘don’t come back to work if you are not comfortable’ and told the applicant she could make a bullying claim against her colleague if she wanted. The applicant did not attend work for 2 subsequent shifts. The respondent sent the applicant an email regarding her failure to notify the respondent of her absences and said that if the applicant did not intend to return to work, she needed to provide a resignation letter. Attached to the email was a warning letter about the applicant’s attendance.
The applicant said she had not come into work because the respondent had unfairly dismissed her. The managing director emailed the applicant saying she had not been fired and was welcome at work. The applicant did not attend for her subsequent shift. On the following day, the managing director called the applicant and asked if she was coming back, the applicant said no. The managing director asked the applicant to send a resignation letter if she was not coming back, but the applicant did not do so. The managing director again asked applicant for a resignation letter so he could pay out her annual leave.
The Commission found that a reasonable person would not understand the managing director’s statements to be a dismissal. At best, the statements were ambiguous, but it was clear the dialogue was not over. After the applicant did not attend for work or notify of her absence, the respondent asked the applicant to confirm her intention either to return to work or resign. The Commission found that when the respondent became aware of the applicant’s belief that she had been dismissed, it quickly sought to remedy the misunderstanding and told her she was welcome back, but the applicant did not respond and did not attend for work. The respondent followed up again and the applicant said she was not coming back.
The Commission found the applicant ended the employment relationship by saying she was not coming back, and in saying those words the applicant resigned. The evidence did not establish that the applicant was forced to resign. The Commission found that the applicant was not dismissed and as a result could not make an unfair dismissal application. The application was dismissed.
The applicant in this unfair dismissal matter was employed as an internal salesperson from September 2016. The applicant refused to provide a urine sample for drug testing in accordance with the respondent’s policies on 1 February 2021 due to a personal medical condition. The applicant was willing to provide a saliva sample in lieu of the urine sample. The respondent’s policy did not allow for employees to choose a method of testing. The respondent informed the applicant by email that they had no right to choose the testing method, the applicant was told that further refusal to comply with the direction would result in disciplinary action up to and including termination of employment. The applicant continued to refuse to provide a urine sample when further requests were made. The applicant was dismissed for failing to follow a lawful and reasonable direction. The applicant submitted that the requirement to provide a urine sample was not a lawful and reasonable direction. The applicant further submitted that their request for alternative testing method was not a refusal to comply with the respondent’s policies.
The Commission considered that the respondent’s policies provided that the method of drug testing was at the discretion of the respondent. The Commission considered the applicant refused to follow a lawful and reasonable direction when she refused to provide a urine sample after being informed that she had no ability to choose the testing method. The Commission found the direction to provide a urine sample was lawful and reasonable. The Commission was not satisfied the applicant’s personal medical condition rendered the direction unreasonable. The Commission noted that the applicant did not refer to her personal medical condition in any contemporaneous correspondence. The Commission found that the applicant had no reasonable basis to refuse the lawful and reasonable direction. The Commission also found the applicant unreasonably maintained refusal to provide a urine sample and, considering the applicant was told that refusal would lead to disciplinary action including termination, there was a valid reason for dismissal. The Commission was satisfied that the applicant was notified of the reason for her dismissal and given an opportunity to respond. The Commission found that the dismissal was not harsh, unjust or unreasonable and therefore not unfair. The application was dismissed.
The appellant, a receptionist in an aged care facility, was dismissed for being unable to perform the inherent requirements of her role due to her refusal to comply with a NSW public health order that required people who entered aged care facilities to be vaccinated against influenza. At first instance the Commission decided that the appellant’s dismissal was for a valid reason, was procedurally fair and not harsh, unjust or unreasonable.
The appellant sought permission to appeal. The appellant had previously received 2 influenza vaccinations, one of which the appellant alleged caused adverse effects. The appellant provided no evidence that the adverse effects were caused by the vaccination. The public health order requires an up to date influenza vaccination. Staff are not permitted to work without a vaccination unless they provide certification from a medical practitioner of a medical contraindication to the influenza vaccine. The appellant gave the respondent a letter from a practitioner of Chinese medicine to attempt to satisfy the exemption. The appellant was stood down. The appellant then gave the respondent an exemption form from a general medical practitioner who did not treat her for the adverse reaction that the appellant alleged had resulted from being vaccinated on a previous occasion. The form identified a medical contraindication described as ‘severe facial swelling and rash lasting 10 months’. The appellant attempted to re-enter her work premises and was escorted out.
The Full Bench majority did not consider that granting permission to appeal would be in the public interest. The Full Bench majority found that the mere completion of an approved form identifying a medical condition was not sufficient to establish a medical contraindication sufficient to grant an exemption from the public health order. The Full Bench majority also noted that the appellant’s condition, at its highest, was not a medical contraindication.
There was no procedural unfairness and as the Commission made no adverse finding as to the appellant’s credibility there was no question of the rule in Browne v Dunn arising. The Full Bench majority found that the main tenet of the appellant’s argument, that she was allergic to the vaccine, was not credible given circumstantial evidence which included her general anti-vaccination position as revealed in a letter she sent to the respondent. The Full Bench majority refused permission to appeal.
The Full Bench minority in dissent held permission to appeal should be granted and appeal should be upheld because the appellant was unfairly dismissed. The Full Bench minority held that:
The applicant who made this unfair dismissal application had worked for the respondent for 22 years without ever being subject to formal disciplinary action. Following the announcement of a New Intercity Fleet (NIF) the applicant raised safety concerns with the respondent. The respondent subsequently placed the applicant on a Personal Conduct Improvement Plan (PCIP). Following the PCIP meeting, the applicant’s supervisor raised the topic of the NIF. In response the applicant swore at his supervisor, stating ‘I’m trying hard not to punch you in the face, you need to step away from me’.
The applicant was suspended without pay and the incident was subject to a 4-month investigation. The respondent submitted that the applicant’s conduct breached its Code of Conduct. The applicant contended that the Commission should have regard to his work stress, poor mental health and the respondent’s failure to provide support.
The Commission found that the applicant’s conduct during the incident did not amount to a threat of physical violence. The Commission held that the applicant’s reference to ‘punching’ was a figure of speech, not a statement that the applicant was prepared to be violent. The Commission also found that the applicant’s use of an expletive towards the supervisor breached the Code of Conduct and was a valid reason for dismissal.
The Commission considered whether the dismissal was harsh, unjust and unreasonable, and found that the respondent’s response to the incident (suspension and a 4-month investigation) was grossly disproportionate. The Commission found that the respondent chose to apply rules, policies and procedures instead of engaging with the involved parties to address the matter. The Commission further found that the respondent had other reasonable actions available to address the applicant’s conduct.
The Commission held that the decision to dismiss was disproportionate to the applicant’s conduct, and that the dismissal was both harsh and unreasonable. The Commission ordered the applicant to be reinstated to his former position. The Commission also ordered compensation for renumeration lost due to the dismissal, less the amount paid in lieu of notice of termination and earnings from other employment.
The Commission is building a new way for users to fill in and lodge forms.
We have developed an online application form which allows users to fill in and lodge single-enterprise and multi-enterprise agreement applications electronically.
The online application form pre-populates information and alerts users when important information has been left out or seems incorrect.
To try our new online application form, just click the button on the Enterprise agreement application page and follow the prompts to set up an account and get started.
Once you've finished lodging your application please tell us how we did by emailing us at firstname.lastname@example.org. Any feedback you give us can help us do better.
This matter relates to an appeal by Yarra Valley Water against the decision by the Commission to approve the Yarra Valley Water Enterprise Agreement 2020, on the basis that the agreement was never ‘made’, in accordance with s.182(1) of the Fair Work Act and, accordingly, was not capable of approval under s.186.
The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Association of Professional Engineers, Scientists and Managers, Australia were bargaining representatives for the agreement and the facts of the matter were not in dispute.
The appellant lodged an application for approval of an enterprise agreement on 28 July 2021, which was approved by the Commission on 17 August 2021. On 19 August 2021, the appellant notified the Commission that it had inadvertently included a draft copy of the agreement in its application. Consequently, the draft copy of the agreement was approved in the decision on 17 August 2021 rather than the agreement that was voted on and made between the employees and the employer.
Upon notification of this error, the Commission took the position that the issue was not remediable under s.602(1) and lodging this appeal was necessary to reverse the approval of the draft agreement.
The Full Bench agreed with the position that the issue was not remediable under s.602(1) and considered that the appeal could be adequately determined without oral submissions. The appellant and the ASU consented to this approach.
The Full Bench held that the draft agreement approved by the Commission on 17 August 2021 was never made in accordance with s.182(1) because it was not the agreement voted on and made between the employees and the employer. Therefore, it was incapable of approval under s.186.
The Full Bench considered it appropriate to grant permission to appeal, uphold the appeal and quash the approval decision of 17 August 2021.
The respondent in this matter, Karijini Rail Pty Ltd (Karijini) is a subsidiary of the Railtrain Group Pty Ltd (Railtrain), another subsidy of Railtrain is TRRC Pty Ltd (TRRC). TRRC had a contract with Roy Hill iron ore mine (Roy Hill) for the supply of rail crew workforce. Karijini was a new entity established partly for purposes of seeking to make an enterprise agreement through it, which would allow a contract with Roy Hill to be obtained. Two employees were engaged by Karijini to make this agreement and the agreement wholly displaced the relevant modern award.
On 14 August 2018 the respondent made an application for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018. The agreement was initially approved with undertakings on 16 September 2019, after the Commission had earlier rejected a number of objections to the agreement’s approval by the appellant [ FWC 2907]. The appellant appealed the decision to approve the agreement and on 3 March 2020, a different Full Bench upheld the appeal in part, quashed the approval decision and remitted the application back to the Commission [ FWCFB 958].
On remittal, the Commission published a decision on 29 January 2021, setting out reasons for initially approving the agreement. An appeal was lodged by the appellant on 19 February 2021 against this decision. Subsequently, on 19 April 2021, the Commission issued a decision approving the agreement with undertakings. The appellant amended their appeal grounds to also consider the approval decision.
The main findings of the Commission’s remittal decisions that relate to the appeal were:
The appellant appealed the remittal decisions on the following grounds:
The Full Bench granted permission to appeal the remittal decisions. The Full Bench held:
The Full Bench quashed the approval decision and proceeded to redetermine the agreement approval application based on all the material provided to the Commission to date.
On redetermination the Full Bench held the agreement was not currently capable of approval because:
The respondent was not provided an opportunity to provide undertakings to resolve these concerns because the agreement application was lodged 3 years ago, so accepting undertakings now would lack legitimacy. Additionally, undertakings already accepted on the better off overall test (BOOT) amounted to substantial change and could not have been accepted, meaning the Full Bench would have to reconsider the BOOT.
The application was dismissed, and the agreement not approved.
The applicant in this application for order to stop bullying was employed as a Supervisor and reported to Mr Wong, the Team Leader. The applicant emailed the employer 4 times between 9 November 2020 and 16 May 2021 complaining about alleged bullying by Mr Wong.
Mr Wong raised a jurisdictional objection that any action taken by him was reasonable management action taken in a reasonable manner.
The Commission determined that on numerous occasions, but not on all alleged by the applicant, Mr Wong repeatedly behaved unreasonably towards the applicant. Instances of unreasonable behaviour by Mr Wong included:
The Commission was satisfied that Mr Wong’s behaviour towards the applicant created a risk to the applicant’s health and safety. The Commission found that the applicant was at risk of continued bullying at work by Mr Wong if an order was not made.
The unreasonable behaviour by Mr Wong was not reasonable management action carried out in a reasonable manner. Instances that were reasonable management action included:
The Commission found the employer also acted unreasonably by withholding an incentive payment from the applicant on account of alleged damage caused by the applicant to a watch. The Commission also found the applicant acted unreasonably towards Mr Wong by not doing a task she was reasonably directed to do.
The Commission exercised discretion to order that Mr Wong stop bullying the applicant.
On 27 March 2021 the Fair Work Act was amended by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. The amendments included introducing a definition of ‘casual employee’ in s.15A of the Fair Work Act and casual conversion arrangements to the National Employment Standards.
As part of the amendments, the Commission was required to review and vary all modern awards where necessary to ensure they were consistent or operated effectively with the Fair Work Act as amended.
The Casual terms award review 2021 (the review) was conducted in 2 stages. In the first stage, a discussion paper was published seeking submissions from interested parties. A 5-member Full Bench then considered the nature and scope of the review and reviewed relevant terms in an initial group of 6 awards.
In stage 2, a separate 3-member Full Bench was constituted to review the remaining awards which were divided into 4 groups. The 3-member Full Bench expressed provisional views in respect of each group and invited submissions from interested parties in response. Where a provisional view was contested, further directions were issued calling for additional submissions and evidence. Decisions were issued for each group and accompanying draft determinations were circulated for comment, before being finalised.
The Commission varied 151 modern awards as part of the review. The determinations became operative on 27 September 2021. Each award was considered individually, however many awards were varied to:
Further information and all related documents can be found on the Casual terms award review 2021 website.
On 24 June 2021, Menulog Pty Ltd made an application (PDF) to the Commission pursuant to ss.157 and 158 of the Fair Work Act seeking the making of a new modern award. The proposed ‘On Demand Delivery Industry Award’ would cover the ‘on demand delivery services industry’, an industry which Menulog claims did not exist or was in its infancy in 2009 when award modernisation took place.
In its application Menulog defines the industry as the collection and delivery of food, beverages, goods or any other item, ordered by a consumer from a third-party business sold on an online or application-based platform for immediate collection and delivery.
Menulog states that, historically and currently, operators in the industry have engaged independent contractors or self-employed couriers for delivery of food, beverages and other goods through their platforms, and that the proposed new award would provide an industry appropriate foundation for minimum employment entitlements to adopt an employment model.
On 12 July 2021 the Commission issued a statement outlining the legislative framework for making a new award, expressed some provisional views on issues raised by the application and invited further submissions from interested parties. Alongside the statement, the Commission published an information note (PDF), prepared by the Commission’s research area, presenting research and data relevant to the on demand delivery services industry as part of the broader ‘gig economy’.
A mention was held on 23 August 2021, and an additional statement and directions were issued on 24 August 2021 including deadlines for the filing of further submissions and evidence in relation to threshold issues. The matter is scheduled for Mention on 1 December 2021 and an oral hearing on 6 December 2021.
Further information and related documents can be found on the Proposed On Demand Delivery Services Award website.
The Commission is extensively varying existing awards as a result of the 4 yearly review of modern awards.
The technical and drafting matters for the Nurses Award 2010 have been completed. The varied award was published in advance and commenced operation on 9 September 2021.
Any outstanding substantive or common issues claims that have not yet been determined will be incorporated into the varied award by way of a subsequent variation determination.
To access the new version of the award, go to the Modern awards list on our website.
To see the decision relating to this award, go to  FWCFB 4504.
This matter relates to an appeal against a decision which at first instance found that the respondent was an employee of the appellant, not a contractor, and that as an employee the respondent was unfairly dismissed. The Commission ordered that the appellant reinstate the respondent.
The hearing of the appeal was conducted on 19 July 2021 and the decision was reserved. Following the hearing the Full Bench issued a statement concerning whether the determination of the appeal should be deferred given that 2 appeals were soon to be heard by the High Court concerning the employee-independent contractor distinction (Jamsek v ZG Operations Pty Ltd (matter S27/2021) and CFMMEU v Personnel Contracting Pty Ltd (matter P5/2021)). The Full Bench held that these were likely to provide authoritative guidance on this matter.
At a further hearing parties were heard on the potential grant of a deferral. The appellant submitted that determination should be deferred. The respondent opposed the deferral and pointed to the considerable delay a deferral would involve.
The Full Bench held that given a consent order was in place staying the reinstatement order that involved payments to the respondent, the respondent would not experience financial prejudice from a deferral. The Full Bench further held that the interests of the respondent did not on balance weigh against the grant of a deferral. The Full Bench deferred the matter until after the High Court has delivered judgments in the 2 relevant appeals.
This section provides summaries of the High Court of Australia, Full Court of the Federal Court of Australia and Federal Court of Australia reviews of Commission decisions.
On 1 December 2020, the applicant made an Originating Application (QUD378/2020) seeking relief under s.39B of the Judiciary Act 1903 (Cth).
The matter was heard before Logan J on 19 April 2021. The Court held that the originating application should not have been accepted for filing by registry on the basis that it did not contain a contact telephone number as required by rule 2.16 of the Federal Court Rules 2011 (Cth), it named unnecessary parties (namely, Members of the Commission instead of just the Commission itself), and failed to name a necessary party, namely the applicant’s employer. On the basis that the applicant refused to provide a contact number, the matter was dismissed for want of compliance with a case management direction.
On 12 May 2021 the applicant sought an extension of time and leave to appeal (QUD161/2021). On 6 October 2021, the Court dismissed the appeal for failure to demonstrate that an application for leave to appeal would have sufficient merit to warrant an extension of time to apply for leave to appeal.
The applicant filed Originating Application (VID511/2018) on 24 April 2018, seeking relief under s.39B of the Judiciary Act 1903 (Cth), specifically, an order in the nature of certiorari quashing the approval by the Commission of the Victoria International Container Operations Agreement 2016.
The matter was first heard before Rangiah J on 4 April 2019. On 2 July 2019, the Court ordered that the application for judicial review be dismissed on the basis that it was an abuse of process. The Court accepted the argument of the first respondent, Victoria International Container Terminal Limited that the applicant had brought the proceeding for the predominant purpose of enabling the CFMMEU (named as the fourth respondent) to obtain relief that it would be unlikely to obtain if it brought the proceeding in its own name.
The applicant then appealed this decision to the Full Court of the Federal Court (VID777/2019) on the ground that Rangiah J had incorrectly concluded that the proceedings were an abuse of process. On 18 March 2020 the Full Court upheld the appeal and set aside the orders of Rangiah J, finding that as the proceedings sought a result within the scope of the remedy sought, there was no ‘impropriety of purpose’ or abuse of process.
The first respondent then appealed the decision to the High Court of Australia (M96/2020). On 7 April 2021 the High Court upheld the decision of the Full Court of the Federal Court and dismissed the appeal, finding that allowing the Federal Court proceedings to continue to conclusion on their merits would not be to allow the pursuit of an illegitimate or improper purpose, nor would it being the administration of justice into disrepute.
Notwithstanding the above, on 2 July 2021, the applicant filed a notice of discontinuance in the Federal Court in respect of VID511/2018.
The applicant filed Originating Application (WAD389/2019) on 7 August 2019 seeking relief under s.39B of the Judiciary Act 1903 (Cth), specifically to restrain the Commission from determining a dispute.
Before the substantive application was considered, on 19 August 2019, McKerracher J granted the applicant’s application for urgent injunctive relief restraining the Commission from determining the dispute, and on 20 August 2019 the Commission vacated its listing.
The key issue before the Court was whether the applicant, in acquiring a business and its former employees who were subject to an enterprise agreement, had consented to arbitration in the manner contended by the existing enterprise agreement. On 25 March 2020, McKerracher J ordered that the application be dismissed, finding that the effect of Part 2-8 of the Fair Work Act was that the applicant was deemed to have consented the enterprise agreement, including the relevant dispute clause.
The matter was then appealed to the Full Court of the Federal Court (WAD93/2020). On 24 February 2021, the majority dismissed the appeal, finding that the Commission did have jurisdiction to hear and determine the dispute. On 12 August 2021, the High Court of Australia refused special leave to appeal the Full Court of the Federal Court decision (P9/2021).
The Commission unveiled the beta version of our new website for public testing and feedback.
The beta website is the culmination of 18 months of research, design and testing with those who use the Commission’s services, including employees, small businesses and registered organisations. It provides a preview of the direction that the new website will take, including:
The Commission will use the feedback it receives on the beta website to complete the redevelopment of the website and ensure the final product meets the needs of the community.
Find out more:
The Fair Work Commission has published its annual report for the 2020–21 financial year following its tabling in the Australian Parliament.
The report is now available from the Annual reports page on our website.
The Fair Work Commission has published its Corporate Plan 2021–22.
The plan covers the periods of 2021–22 to 2024–25 and has been prepared in accordance with the requirements of paragraph 35(1)(b) of the Public Governance, Performance and Accountability Act 2013.
You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.
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