Welcome to the Fair Work Commission’s Quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
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This section provides summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act). In this edition of the Quarterly practitioner update, we have featured 17 Commission decisions issued between 1 October 2016 and 31 December 2016.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
In this unfair dismissal matter the respondent, a small business employer, raised a jurisdictional objection regarding whether the applicant had completed the minimum employment period. The applicant's employment was terminated effective from 27 May 2016. The applicant had commenced performing IT work for the respondent as an independent contractor on 30 March 2015. The applicant submitted that he became a casual employee shortly thereafter; the respondent submitted that the applicant remained engaged as an independent contractor. The applicant was employed in the position of IT and Operations Manager effective from 13 July 2015, pursuant to the letter of offer of employment.
The Commission considered whether the work between March and July 2015 was performed by the applicant as a casual employee or as a contractor, and if it could be counted towards the minimum employment period. The Commission found evidence of an employment relationship, concluding that during the period between March and July 2015 the applicant was a casual employee, and that the work between March and July counted as service. The Commission was satisfied that the applicant had completed the minimum employment period and was a person protected from unfair dismissal. The respondent’s jurisdictional objection was dismissed.
In this matter the appellant sought permission to appeal against the Commission’s decision to dismiss her unfair dismissal application, after it found that her dismissal was a case of genuine redundancy. The respondent was a not-for-profit organisation and the appellant was the only employee. At first instance the Commission found that it was clear that the respondent's debts exceeded its financial assets at the time of the appellant’s dismissal. The Commission was satisfied that the decision to dismiss the appellant was made because the respondent no longer required that the appellant’s job to be performed by anyone because of changes in the respondent’s operational requirements. The Commission found that the consultation requirements in the Social, Community, Home Care and Disability Services Award 2010 (the Award) had been complied with and that there was no other paid position available for redeployment as the appellant was the only employee.
The appellant’s grounds of appeal included a challenge to the Commission’s findings at first instance under s.389(1)(a) of the Fair Work Act. The Full Bench noted that consideration of s.389(1)(a) does not involve a merits review of an employer's decision to make job redundant. Whether it was objectively fair or justifiable to decide to abolish a position was beside the point, as long as the employer acted as it did because of changes in its operational requirements [Low].
The Full Bench held that the decision to abolish the appellant’s position because it could not operationally be maintained, due to a lack of financial resources, was a decision to which s.389(1)(a) squarely applied. The respondent had a genuine basis to view its financial position as precarious, and that it was not prudent to continue the appellant's employment. The Full Bench found that there was no arguable case that the Commission erred in finding s.389(1)(b) had been satisfied. The discussions that the respondent had with the appellant about its financial situation, and the act of putting forward the option of working on an unpaid basis until funding was secured, had discharged the consultation requirements under the Award. The Full Bench did not consider that there was an arguable case demonstrated by the appellant that the Commission erred in finding that the dismissal was a case of genuine redundancy. The Full Bench found no issue requiring consideration at an appellate level, and was not satisfied that it was in the public interest to grant permission to appeal. Permission to appeal was refused.
This matter was an appeal against a decision of the Commission at first instance finding that an employee's dismissal for engaging in inappropriate conversations was harsh but not unjust or unreasonable. The Commission determined that the reinstatement of the employee to his former employment was the appropriate remedy.
The appeal contained nine grounds, many of which overlapped. The Full Bench determined that it was in the public interest to grant permission to appeal. Two aspects of the appeal raised a novel question: whether derogatory remarks in the workplace, which vilify persons of a particular religion, are capable of being assessed on a range of seriousness; or whether they constitute a form of misconduct which is sui generis and must be considered in a distinct way. The Full Bench considered that the question was likely to arise in other cases and Full Bench guidance would be desirable.
Decision of majority Full Bench: The majority Full Bench held that the Commission considered all of the matters it was required to take into account under s.397 of the Fair Work Act. There was no factual dispute about the actual conduct, being the inappropriate comments made that caused the employee’s dismissal, so in that respect there was no suggestion of any significant error of fact. The Commission upheld as valid under s.387(a) the reasons given by the appellant for its dismissal of the employee. There was no issue taken with the findings made pursuant to s.387(b)-(g). The majority Full Bench held that the Commission identified six additional matters considered relevant pursuant to s.387(h), and giving detailed reasons for their relevance, favoured the conclusion that the dismissal was harsh. Having found that the dismissal was harsh, the Commission ordered reinstatement, the primary remedy under the Fair Work Act. The majority Full Bench held that it could not reasonably be suggested that the Decision at first instance could be read as condoning or excusing the applicant's conduct in any way. The Commission found that the employee’s conduct constituted a valid reason for his dismissal. The employee’s comments, particularly the anti-Muslim comments, were described by the Commission as inappropriate, unacceptable, offensive, and as expressing and inciting derogatory views of people of a particular race or religion.
The appellant challenged the Commission’s process of reasoning, namely by attempting to place the particular conduct on a scale of seriousness. The majority Full Bench held that the concept of comparison to assess degrees of seriousness was a well-known one. The majority Full Bench held that there was nothing intrinsically different about inappropriate workplace comments which involve religious vilification, which precluded the adoption of a comparative analysis approach in order to assess its seriousness. The majority Full Bench found that there was nothing illogical or irrational about the Commission's assessment of the seriousness of the applicant's conduct, and that it was relevant for the Commission to take into account that the remarks were not aimed at offending a targeted individual. The majority Full Bench held that the Commission's discretion was not exercised incorrectly. Permission to appeal was granted and the appeal dismissed.
Decision of minority Full Bench: The minority Full Bench held that the Commission failed to properly exercise its discretion, and took into account irrelevant matters in relation to comments made by the applicant, but failed to take into account relevant matters about the known adverse impact of discrimination in the workplace. The minority Full Bench held that the Commission's findings about the gravity of the applicant's conduct were not findings that a logical or rational person could reach. The minority Full Bench found that the applicant's conduct was a substantial and wilful breach of the Code of Business Conduct, and further found that requiring reinstatement in this context was unjust. The minority Full Bench held that the Commission at first instance failed to properly characterise comments as homophobic, and failed to attach an appropriate level of seriousness to the homophobic comments where they were directed at a particular individual. It further held that categorising homophobic, crude, lewd and sexist comments at the 'lower end of the scale of seriousness' was irrational, and finding that categorising deeply offensive and Islamophobic comments as 'mid-range' beggars belief. The minority Full Bench found that the link the Commission drew between fatigue and an explanation for Islamophobic comments was not logical. The minority Full Bench held that the Commissioner's decision to reinstate the employee was a manifestly inadequate consequence for the employee's substantial and willful breach of the appellant's policies. The minority Full Bench viewed that quashing the decision at first instance would also make it consistent with the Full Bench decision in Harbour City Ferries P/L v Toms. The minority Full Bench would allow the appeal and quash the decision at first instance, and would dismiss the application for an unfair dismissal remedy.
In relation to this unfair dismissal matter the Full Bench granted the appellant permission to appeal in relation to the award of compensation only. At first instance the Commission found the summary dismissal of the employee for serious misconduct was harsh, unjust and unreasonable and awarded $32,305.00 in compensation. The Commission considered the formula in Sprigg for the calculation of the compensation. At the time of his dismissal, and up to the hearing, the employee was in receipt of workers compensation payments.
The Full Bench held that the Commission had erred on three issues:
The Full Bench quashed the parts of the decision and order at first instance concerning compensation. The amount of compensation was reassessed by the Full Bench. This case was unusual because the employee was in receipt of workers compensation payments and his dismissal did not affect his earnings. The Full Bench found that the actual and likely income of the employee in the two-year period from the date of his dismissal was the same as the amount calculated for the purpose of s.392(2)(c) of the Fair Work Act. That amount was deducted from the calculated amount and left zero compensation. However, as the employee was not paid the five weeks’ pay in lieu of notice to which he was entitled, the Full Bench issued an order for compensation in the amount of $9,100.00 for the five weeks pay in lieu of notice.
This case related to an application for an order under s.789FF of the Fair Work Act to prevent a colleague from bullying the appellant at work. At first instance the Commission dismissed the application on jurisdictional grounds, finding that because the respondent was not a trading corporation it was not a constitutionally-covered business within the meaning of the Fair Work Act. The appellant sought leave to appeal this decision.
The critical question on appeal was whether the respondent could be characterised as a ‘trading corporation’, and therefore a constitutional corporation. The respondent was a body corporate established under the Trade and Investment Commission Act 2013 (Cth). Under that Act, the respondent was assigned various functions to do with engaging with domestic and foreign industry to promote trade and investment. The vast majority of the respondent’s income consisted of grants from the Queensland and Commonwealth governments. Otherwise, the respondent received small percentages of its income from renting out property, industry contributions, interest accruing from bank accounts and the receipt of fees and charges for a business visa scheme operated by the respondent.
With respect to two of these sources of income, the rental income and industry contributions, the Commission at first instance had held that they were not trading activities partly because their purpose was to offset the operational costs of the respondent, rather than to be sources of net profit. With respect to the rental income, the respondent subleased a number of properties to state government agencies and universities in order to defray the cost of rent on those properties. Similarly with the industry contributions, the respondent received this income by allowing private bodies to sponsor business lunches and similar events in order to offset the costs of the events. The Full Bench held, however, that these activities were prima facie trading activities. In coming to that conclusion, the Commission noted that the end sought to be achieved by the activities (defraying costs) did not deny the activities themselves of having a commercial character.
The Full Bench granted permission to appeal, upheld the appeal, quashed the decision at first instance, and remitted the respondent’s jurisdictional objection to the Commission to be dealt with according to the Full Bench’s observations.
Cross-appeal by United Firefighters' Union of Australia and Anor against decision [ FWC 5028] and order [PR584680] Re: Metropolitan Fire and Emergency Services Board The issue determined by the Commission in the matter at first instance concerned the question of whether the Metropolitan Fire and Emergency Services Board (the MFB) was restricted from implementing a decision to terminate the employment of Mr Duggan by the operation of the Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia, Operational Staff Agreement 2010 (the Agreement). The MFB sought to terminate the employment of Mr Duggan, a recruit firefighter, after learning of conduct which occurred prior to his employment. Ultimately the Commission determined that it could not.
In its grounds of appeal the MFB alleged a number of errors in the Commission's consideration of the issue of whether the Commission could, via the dispute resolution procedure under the Agreement, prevent the MFB from exercising its statutory powers of dismissal. The grounds put forward by the United Firefighters’ Union of Australia (the UFU) and Mr Duggan in the cross-appeal included that the Commission erred in concluding that the MFB provided a 'health service' in Victoria, and by ordering that Mr Duggan's probationary period be extended, notwithstanding s.25B(2) of the Metropolitan Fire Brigades Act 1958 (Vic). The role of the Commission in relation to disputes arising under a dispute settlement clause of an agreement was clarified by the High Court in CFMEU v AIRC.
Clause 19.7 of the Agreement expressly provides that a decision of the Commission may be appealed. The Full Bench held that the power to hear and determine an appeal under s.604(1) of the Fair Work Act was not invoked by this appeal, and that there was no requirement to satisfy the Commission that permission to appeal should be granted.
It is necessary for the Commission to ascertain the character of the dispute before it in order to determine whether the matter is a dispute over the application of the agreement, and importantly, whether the character of the dispute is distinguishable from the order that may be made in settlement of the dispute [MUA v Australian Plant Services]. The power conferred on the Commission by the parties is a power with respect to the dispute in question. This requires a proper characterisation of the dispute and confining the arbitration power to that dispute. The MFB contended that the Commission travelled beyond the dispute between the parties and ruled on matters that were not part of the dispute before the Commission. Specifically, the MFB contended that the dispute was confined to an allegation of a failure to consult over changes to the Police Check Policy, and with the Commission having concluded that there was not, that should have been the end of the dispute.
The Full Bench considered there was substance to this ground of appeal. The dispute was over changes in policy related specifically to the Police Check Policy, the UFU made no allegation about a breach of any probation policy, and the matter was not subject to evidence or submissions by the parties. The Full Bench was unable to discern any basis in the material before the Commission to suggest that the dispute between the parties included a dispute about the extent of consultation over a change to a policy regarding probation and probationary employees.
The Full Bench held that in purporting to determine such a dispute the Commission:
It then followed from this conclusion that elements of the decision at first instance that related to, or flow from the consideration of the issue of an alleged failure to consult over a change of policy regarding probation cannot stand. An issue remained as to whether the Commission could have dealt with other issues relating to the decision to terminate Mr Duggan's employment by reference to the matters raised by the UFU, concerning the appropriateness of relying on the NCAT decision.
The Full Bench held that it would appear that a decision to terminate employment of an employee is a matter pertaining to the employment relationship. Permitting the dispute settlement clause to be a vehicle for determining the fairness of the decision to terminate Mr Duggan's employment within the six month qualifying period for an unfair dismissal remedy confers a remedy in relation to the termination of the employee's employment. Such a use of the dispute settlement clause renders the term to be an unlawful term under s.194 and of no effect to that extent. The Full Bench held that the general issues of fairness of the decision to terminate Mr Duggan's employment were not capable of agitation under the dispute settlement procedure. Parties cannot confer a statutory power to make orders of a binding force on the Commission. The Full Bench found it was inappropriate for the Commission to purport to make orders in arbitrating the dispute, and it was inappropriate that any of the orders survive this appeal. The appeal was allowed, the decision and orders at first instance were quashed.
There were two applications in relation to this matter. The first application (the dispute application) related to a dispute regarding the involuntary redundancies of certain Pilots in accordance with the Dispute Settlement Procedure (DSP) of the Bristow Helicopters Australia Pilots Enterprise Agreement 2016. In the second application (the stand down application), the Australian Federation of Air Pilots (the AFAP) sought that the Commission determine that the stand downs of certain employees by Bristow Helicopters Australia P/L (Bristow) were invalid because the circumstances of the stand downs did not satisfy s.524 of the Fair Work Act. The AFAP also sought orders requiring Bristow to retract the stand downs, return the employees to paid engagement, and make payment for all remuneration lost by employees who had been invalidly stood down. The subject matter that underpinned the dispute application was entwined with the stand down application, and whilst the hearing involved both applications, it was focused upon a determination of the stand down application.
In April 2016 an EC 225 helicopter, which was not operated by the Bristow Group, crashed in Norway and 13 people were killed. The crash appeared to involve some mechanical fault with the gearbox of the aircraft. Various air safety authorities implemented cautionary restrictions on the use of the EC 225 helicopter. The Australian Civil Aviation Safety Authority (CASA) issued a Direction to Bristow which restricted the use of the EC 225 helicopter to limited search and rescue operations and ground running of the helicopter. To a large extent the EC 225 helicopter was effectively grounded and could not be used for ordinary commercial operations. The restrictions placed upon the use of the EC 225 helicopters had a significant impact on Bristow's operations, and between May and June 2016 Bristow implemented the involuntary redundancies of 12 Pilots. The Pilots who were to be selected for involuntary redundancy were determined by their seniority within the permanent Pilot group, the least senior were the first to be selected on a 'last on first off' basis. The grounding of the EC 225 helicopter impacted upon the application of the strict seniority for last on first off selection for redundancy. Pilots who were only endorsed (aka rated) to fly the EC 225 helicopter, and who were not at the bottom of the seniority list would have to be retrained so as to enable them to fly other types of helicopters, whilst those at the bottom of the seniority list who were flying helicopters other than the EC 225, would be made redundant. Bristow realised that it was unlikely it would require all of the EC 225 Pilots to be retrained for endorsement to fly other helicopters, and identified the seven least senior EC 225 Pilots as surplus. The seven surplus EC 225 Pilots were required to elect to either take an enhanced voluntary redundancy package, or proceed to take some form of leave, including leave without pay.
A decision of the Commission on 4 July 2016 rejected the requirement for the strict adherence to seniority for the 'last on first off' selection for redundancy [ FWC 4232]. On 12 July 2016 Bristow wrote to the AFAP and advised it was proceeding to implement involuntary redundancies in respect of the identified surplus EC 225 Pilots. This meant that Bristow was departing from the previously applied strict application of the last on first off redundancy selection from across the entire Pilot group. Two Pilots from the seven EC 225 Pilots identified as surplus who had not elected to take enhanced voluntary redundancy, or some other form of leave, were to be made involuntarily redundant immediately. On 13 July 2016 the AFAP lodged the dispute application and it sought to invoke a status quo provision contained in the DSP as a means to prevent Bristow from implementing the involuntary redundancies. On 15 July 2016 Bristow wrote to the two EC 225 Pilots who had not elected to take any leave, advising that it could not issue them with a letter of redundancy due to the dispute that had been lodged by the AFAP, and that they had been stood down without pay.
On 21 October 2016, CASA revoked the Direction issued in respect of the EC 225 helicopter, releasing the EC 225 helicopter from any restriction regarding its general operation. On 26 October 2016 a Full Bench of the Commission quashed the decision of 4 July 2016 [ FWCFB 7720]. Bristow primarily relied upon the substantive grounding of the EC 225 helicopters as representing circumstances which satisfied the terms of ss.524(1)(b) and/or (c). The Commission held that the mere existence of a breakdown of machinery or equipment, and/or a stoppage of work for which the employer cannot reasonably be held responsible, was not sufficient to establish the circumstances which satisfy s.524(1). There must be a direct causal connection between the breakdown of machinery or equipment and/or the stoppage of work, and the absence of useful work for the employee who is stood down. The stand downs of the two EC 225 Pilots occurred about two and a half months after the fatal crash in Norway. The Commission found that the reason for the stand downs was not the substantive grounding of the EC 225 (and other loss of work), but instead, the stand downs were caused by Bristow being prevented from dismissing the two EC 225 Pilots on the basis of involuntary redundancy. The stand downs were caused by the operation of the terms of the Agreement, and those terms were something for which the employer can reasonably be held responsible. The Commission held that there was no breakdown of the EC 225 at any time, its use was restricted, consequently the circumstances of s.524(1)(b) involving a breakdown of machinery or equipment were not satisfied by the substantive grounding of the EC 225. The Commission found that the stand downs of the affected Pilots had been implemented in contravention of the requirements of s.524. The Commission held that the stand downs of the affected Pilots were invalid.
An application was made by the Department of Immigration and Border Protection (DIBP) on Friday 30 September 2016 seeking an order that would suspend protected industrial action being taken by members of the Community and Public Sector Union (the CPSU) until 24:00 hours on 21 November 2016. The DIBP and CPSU had been bargaining, together with other employee bargaining representatives, for some time for an enterprise agreement to replace agreements applying to the Department’s predecessors. Whilst the bargaining is in respect to all employees of the DIBP, the protected industrial action which was the subject of this decision predominantly related to employees of the Australian Border Force (the ABF). The ABF comprises more than 13,000 employees and operates on a large scale, working across international airports, sea and cargo ports. Protected industrial action being taken by members of the CPSU, employed by the DIBP, had previously been suspended by the Commission for a period of 90 days through an Order issued on 27 April 2016 [ FWC 2526] and [PR579316].
This application was the subject of an urgent hearing on Friday, 30 September 2016; an Interim Order was issued that day suspending industrial action until further notice [PR586012]. At the hearing to determine the application, on Wednesday, 5 October 2016; the DIBP argued for a suspension of protected industrial action until 21 November 2016, in order to allow time for the DIBP to conduct a further ballot of employees for its proposed enterprise agreement. The Commission was satisfied that the prerequisites of s.424(1) of the Fair Work Act had been met, as the protected industrial action had threatened, was threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. The decision to make an order suspending or terminating the protected industrial action is at the discretion of the Commission. The DIBP opposed the termination of the protected industrial action. The CPSU acknowledged that the jurisdictional pre-requisites for the making of an order had been made out, however it argued that the appropriate response for the Commission would be to terminate the protected industrial action, rather than to suspend it.
The Commission held that suspending the protected industrial action was a non-permanent conclusion to the disputation, with employees entitled to resume employee claim action at the end of the suspension. The termination of the protected industrial action brings with it the processes set out in Division 3 of Part 2–5 of the Fair Work Act. The provisions of s.266 require that the Commission must make a workplace determination if, after the termination of the protected industrial action, the parties have failed to settle all the matters that were at issue during bargaining during a post-industrial action negotiating period. The Commission considered Essential Energy v CEPU. Negotiations between the parties for a new enterprise agreement had been going for a considerable period of time. The Commission held that the suspension of the protected industrial action was unlikely to do more than create a further hiatus in the bargaining between the parties. The Commission made the decision to terminate the protected industrial action. The Commission was mindful of the work required to be undertaken by the parties during the post-industrial action negotiating period and offered to assist the parties in that task.
In this matter the Australian Mines and Metals Association (AMMA) made an application for bargaining orders against the Maritime Union of Australia (the MUA). Bargaining for a replacement agreement had commenced in December 2012/January 2013, and whilst bargaining was taking place there had been a significant number of proceedings in the Commission and Courts.
AMMA’s case for Good Faith Bargaining Orders relied on grounds of:
The Commission was satisfied that AMMA was able to make an application for a bargaining order, and that the application was made properly. The issue of misrepresentation was established in an earlier decision [ FWC 773]. The misrepresentation led to MUA members holding an incorrect belief as to the position of the applicant, as well as the status and progress of bargaining. The Commission found that the misrepresentation further resulted in the propensity of the MUA members to consider the future position of the applicant from the untruthful starting point. The Commission was satisfied that it was reasonable to make a bargaining order [Tahmoor], and satisfied that an order relating to 'gaming the scope' was not necessary. The Commission was not satisfied that the MUA was pursuing unlawful and/or non-permitted matters. The Commission considered Endeavour Coal in assessing whether or not surface bargaining had occurred. The Commission was satisfied that the MUA had engaged in unfair processes that undermined collective bargaining through combining industry level negotiations with an individual enterprise response. The Commission was also satisfied that the MUA behaviour regarding reneging on commitments and in-principle agreements was inconsistent with good faith bargaining requirements, however the Commission was not satisfied that the MUA had breached good faith bargaining obligations relating to giving genuine consideration to proposals put by the applicant. The Commission held that it was not necessary to determine 'bad faith', rather the necessary test was whether a disinterested observer would conclude that the conduct was honest, reasonable and fair. The Commission was satisfied that the MUA had not met the good faith bargaining requirements. An Order was issued requiring the MUA to refrain from misrepresenting the position of the applicant.
This application for permission to appeal related to a majority support determination. At first instance, the Commission identified three possible points in time that could have been appropriate to determine whether a majority of employees wanted to bargain with the Appellant. Two of those points in time were put by the respondent: when the initial ballot conducted on 25 May 2016; or when the subsequent ballot undertaken on 8 June 2016. The third possible point in time was submitted by the appellant as 9 September 2016: the time of the decision when the Commission would have had the most current information available before it. The Commission determined that 25 May 2016 represented the most appropriate time for determining whether majority support for bargaining existed and issued a decision which found that a majority of the employees of the appellant wanted to bargain for an enterprise agreement.
The appellant sought permission to appeal. The Full Bench was satisfied that the appeal raised important questions concerning the application of s.237 of the Fair Work Act in circumstances where the Commission's discretion to determine whether a majority of employees wanted to bargain was an issue in dispute. The Full Bench considered that this was an important matter regarding the Commission's approach in making such a determination. The Full Bench found that it was in the public interest to grant permission to appeal.
The Full Bench found that s.237(2(a)(i) was directed at fixing a time at which the Commission determines only who are the persons employed. The Full Bench agreed with the appellant that it was not open to the Commission to determine a point in time, other than the time of the decision, as the time at which a majority of employees could be said to want to bargain. The Full Bench identified that the Commission did not take into account the most current information available to it at the time of determination. The Full Bench found that the appellant had demonstrated a House v The King error in the decision at first instance. The appeal was upheld and the decision was quashed. The matter was referred to Johns C.
At first instance in this matter, the Commission approved the Sparta Mining Services Pty Ltd Enterprise Agreement 2016 with undertakings. The appellant lodged an appeal, contending that the Commission erred at first instance in concluding that the employer complied with s.180(2) of the Fair Work Act prior to the employee vote. The appellant contended that:
The appellant submitted that the Commission’s approval decision did not deal with the policies of the mine operators as well as the labour hire company, nor with the failure to provide industry codes of practice. The appellant further submitted that the Commission’s reliance on the undertaking was an error and that it was for the employer to satisfy that s.180(2) was complied with, not the appellant having to satisfy that s.180(2) was not complied with. The employer did not deny the errors contended by the appellant, but submitted that the employees had access to the documentation in a variety of ways.
The Full Bench, after having considered the McDonalds and NTEIU decisions, was satisfied that the Commission erred in its consideration of whether s.180(2) had been complied with. Permission to appeal was granted. Two additional factual matters emerged during the appeal: first, that the three employees who voted upon the Agreement were no longer employed by Sparta, but were now employed by another labour hire company at the same coal mine sites; and second, that Sparta now employed approximately 40 employees. In light of those facts the Full Bench decided that it was in the public interest for the Commission to rehear and reconsider the requirements of ss.186 and 188, and allowed parties to adduce further evidence if necessary. Once the Commission has made its findings on these issues, the matter will be returned to the Full Bench for any further orders as may be necessary.
This decision related to an appeal for an application for approval of a single-enterprise agreement made by Sparta Mining Services P/L, which was remitted to the Commission from the appeal Full Bench to rehear and reconsider the requirements of ss.186 and 188 of the Fair Work Act (as outlined in the summary of  FWCFB 7057, above).
In referring this matter back for rehearing, the Full Bench referred to the decision in KCL. The Full Bench also referred for review whether the approval requirements in s.186(2)(a) were satisfied taking into account the requirement in s.188(a)(i) for compliance with s.180(2); and the requirement for s.188(c), regarding whether there were no reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees [ FWCFB 7057]. The parties were permitted to adduce further evidence in this process and at appeal, the Full Bench found:
The Commission found that in accordance with KCL, the three employees who voted were to be paid at higher rates and with better conditions than in the Agreement (rates which would not apply to new employees who did not vote on the Agreement), which indicated that the vote was not authentic. The Commission also questioned the moral authenticity of the Agreement, as the three employees had little or no real stake in the Agreement.
The Commission considered the decision of the Full Federal Court in Aldi and found reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees, and therefore the approval of the Agreement (based on the further facts and recent case authorities), should be quashed. The Agreement also incorporated policies and procedures by reference. The evidence before the Commission was that Sparta did not take reasonable steps to ensure access to the documents that were incorporated, and determined that it could not be satisfied that the Agreement had been genuinely agreed to by the employees, and therefore the requirement under s.188(c) was not met. The Commission held that the Agreement was incapable of approval and therefore, it was proposed that an Order for the revocation of the approval Decision should be issued and affirmed by the Full Bench. The findings on s.180(2) were simply provided to discharge all matters. The Commission determined that the Applicant had not taken reasonable steps to give a copy of, or ensure access to the documents incorporated, and therefore the requirement in s.188(a)(i) for compliance with s.180(2) had not been met. The approval requirement in s.186(2)(a) were not satisfied and the Commission referred the matter back to the appeal Full Bench.
At first instance the Commission approved the Ron Southon P/L Enterprise Agreement 2016 – 2020 (the Agreement) with undertakings. The appellant contended that the Commission at first instance erred by:
Prior to the Agreement being approved the Commission received correspondence from the appellant seeking documentation in relation to the application, and asserting that it had coverage of the work to be performed under the prospective agreement. The appellant confirmed that it had no members that would be covered by the agreement, but requested to be heard on the application nonetheless. A list of the appellant’s objections to the proposed agreement was also sent to the Commission. A number of weeks later, the agreement was approved. The appellant then enquired whether the Commission had determined that the CFMEU was not to be heard and, if so, when that determination was made. The Commission indicating that the matters raised in the appellant’s correspondence had considered and that the file had been closed.
The Full Bench held that the Commission at first instance had erred by refusing to provide appellant with documents it sought. The principle of open justice applies equally to the Commission as it does to the Courts [Corfield]. The Full Bench found there was nothing to suggest that the appellant was asserting any right to be heard in relation to the approval of the enterprise agreement. Rather, the Full Bench considered that the application to be heard could only be understood as a request that the Commission exercise its discretion to hear from the appellant, even though the appellant did not otherwise have a right to be heard. The Full Bench noted that although the Commission was not required to provide reasons for its refusal to hear the appellant, it would have been preferable to have briefly set out the reasons. This would have made it clear to the appellant (and any other observer) why it was not considered appropriate or desirable to hear from them.
The Full Bench found that the terms of the Agreement contravened s.55. The Agreement provided for ordinary hours to be 40 per week, to the extent that an employee was contracted to work in excess of 38 hours per week, but was unable to alter that arrangement to meet personal circumstances meant the Agreement would be inconsistent with the NES [Aldi]. The Full Bench held that the Agreement should not have been approved at first instance. Permission to appeal was granted and the appeal upheld; the first instance decision was quashed. The application for approval of the agreement was remitted to Bissett C.
This matter related to an application by Jan De Nul (Australia) P/L (Jan De Nul) for the approval of the Jan De Nul (Australia) P/L Enterprise Agreement 2016 (the 2016 Agreement). The Australian Maritime Officers Union (the AMOU) and Australian Institute of Marine and Power Engineers (the AIMPE) sought permission to be heard as full participants in the approval of the 2016 Agreement, though neither union was a bargaining representative. Jan De Nul objected to either union being heard.
As a matter of procedural fairness, standing may be granted to an employee organisation who is not a bargaining representative if the organisation can identify a right, interest or legitimate expectation that might be affected, or potentially affected, by the decision to approve an agreement. Whether an employee organisation which is not a bargaining representative has a right to be heard will depend on the particular circumstances [Collinsville]. An employee organisation may have a right to be heard if the proposed agreement displaces or alters the rights and obligations of an employee organisation in relation to the employees conferred by the agreement [MGI Piling].
The AMOU contended that it had a right to be heard because it had a right, interest or legitimate expectation under the Jan De Nul (Australia) P/L AMOU Dredging Agreement (2012) (the Dredging Agreement). The AMOU contended that the Dredging Agreement contained beneficial clauses which were not replicated in the 2016 Agreement. The Commission held that clauses in the Dredging Agreement created rights, interests and/or legitimate expectations for the AMOU directly. The Commission found the circumstances of this case could be distinguished from those which existed in cases such as Collinsville and MGI Piling where standing to be heard as a matter of procedural fairness was refused. The Commission found that the AMOU had standing to be heard in relation to the application for approval of the 2016 Agreement.
The Commission considered whether the AIMPE had the opportunity to be heard in accordance with s.590 of the Fair Work Act, which confers on the Commission a power to inform itself in relation to any matter in a manner it considers appropriate. The AIMPE were invited to provide submissions and evidence in support of its proposition that it should. The Commission found that the AIMPE had failed to provide persuasive submissions or sufficient credible evidence to justify the exercise of its discretion in accordance with s.590.
In relation to the application by Jan De Nul (Australia) P/L (Jan De Nul) for the approval of the Jan De Nul (Australia) P/L Enterprise Agreement 2016 (the 2016 Agreement), Jan De Nul sought that the personal identifiers of individual employees involved in the agreement application process be concealed from the public record.
The Commission received correspondence from both the Australian Maritime Officers Union (the AMOU) and the Australian Institute of Marine and Power Engineers (the AIMPE) requesting copies of the Jan De Nul Form F16 and Form F17 with a view to being heard as to the approval or otherwise of the agreement. The Commission invited Jan De Nul to provide redacted versions of Forms F16 and F17 to the AMOU and the AIMPE by consent or apply for confidentiality orders. Jan De Nul advised that it did not consent to providing the redacted versions. Sections 593(3) and 594(1) of the Fair Work Act vest a discretion in the Commission to make an order prohibiting or restricting the publication of certain information, in relation to matters before the Commission, if satisfied that it is desirable to do so because of the confidential nature of any evidence or for any other reason. The question of whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side [DP World].
The statutory declarations filed by Jan De Nul justified the request for anonymity based on a fear of victimisation or bullying. The Commission found there was insufficient evidence to be satisfied that the concerns of the declarants were so genuinely held, or the risk of the alleged conduct so real, so as to justify orders of the nature sought by Jan De Nul. The scope of the orders sought by Jan De Nul extended beyond protecting the identity of employees involved in the approval application process to the information contained in the Form F16 and F17 which Jan De Nul characterised as 'commercially sensitive information'. The Commission was satisfied that the nature and scope of the orders sought by Jan De Nul had the potential to unfairly and unreasonably inhibit the capacity of the AIMPE and the AMOU to properly prepare and conduct their cases. The Commission was not satisfied that Jan De Nul demonstrated a basis for the orders which it sought. The Commission was satisfied that the concerns of the employees involved in the agreement approval process could be addressed while allowing the AIMPE and the AMOU the opportunity to properly prepare and conduct their cases. The Commission granted confidentiality orders which limited the disclosure of the identity of employees involved in the application approval process to the legal representatives of the AIMPE and the AMOU.
The Commission received an application for an order to stop bullying. At that time Programmed Skilled Workforce Limited (Programmed) was involved in an industrial dispute with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) in connection with its acquisition of a contract to provide certain services at the Carlton & United Breweries site in Abbotsford, Victoria. The dispute centered around the terms and conditions of employment of persons employed by Programmed, and its employment of persons who were made redundant by the previous contractor.
The application involved allegations about the conduct or behaviour of persons who were participating in a picket outside of, and adjacent to, the entrance to the site. The five applicants did not wish to be identified and applied for a confidentiality order, for reasons which include concerns relating to an escalation of the conduct, which they complained had been directed towards them. The CEPU, AMWU and other respondents opposed the making of a confidentiality order, on the basis it denied them procedural fairness in defending the case. The applicants were concerned that if they were identified as applicants in the proceeding, escalation in the conduct could occur. The Commission was satisfied that the applicants’ concerns were genuinely held, and not without some foundation. The Commission considered that it was appropriate to protect the applicants’ anonymity in the sense that there should be no disclosure of their respective names or addresses. The Commission made the confidentiality order.
The Commission received an application from LCR Group P/L (LCR) to terminate the LCR Group P/L Mobile Crane Enterprise Agreement 2001 (ACN: 095 626 798) (the Agreement). The Construction, Forestry, Mining and Energy Union (the CFMEU) is an employee organisation that is covered by the Agreement. The CFMEU made an application to dismiss LCR's application or, in the alternative, sought orders pursuant to ss.589 or 590 of the Fair Work Act to limit evidence in the matter.
LCR had made another prior application to terminate the agreement but, following the hearing where judgment was reserved, discontinued the application on the basis that it had been prejudiced by the CFMEU filing a substantial affidavit immediately prior to the hearing and that, since the hearing, the relevant decision of Project Coordination (Australia) P/L had been handed down. The CFMEU submitted that LCR's actions amounted to an abuse of process, contending that the grounds in LCR's current application were not materially different to those in the original application, and that nothing significant arose from Project Coordination. The CFMEU submitted that, in the alternative, the Commission should make an order that LCR be limited to leading the evidence led in the initial proceedings, and an order that the evidence in the proceedings be limited to evidence adduced in the original application.
LCR submitted that the Fair Work Act did not prohibit the filing of one or more subsequent applications for termination of the same enterprise agreement, and that if the Commission had determined not to terminate the Agreement under the initial application it would be open to LCR to make subsequent applications to terminate if there had been significant developments in the law or in relation to the Building Code 2013. LCR submitted that the current application was materially different to the original application, and that the filing of the current application was not an abuse of process.
The Commission was satisfied that the decision by LCR to withdraw and subsequently re-lodge its application was inappropriate. The Commission held that LCR should have contacted the Commission and, if necessary, sought to be heard on Project Coordination. LCR was represented by an experienced industrial relations advocate who did not seek an adjournment in relation to the substantial affidavit. However, the Commission was not satisfied it should dismiss the current application, as LCR's conduct did not amount to an abuse of process. The Commission decided to allow LCR's current application to proceed on the following bases:
This section provides summaries of a number of Federal Court reviews of Commission decisions.
Matter reviewed:  FWCFB 4952
A Full Federal Court has held that a Full Bench fell into error in its finding that the applicant’s employment as a teacher had been frustrated by the operation of the Child Protection (Working with Children) Act 2012 (NSW) rather than terminated at the initiative of the employer. The Full Court found that ‘a termination that had not been done by the employer might nonetheless have been… done at the initiative of the employer’ and that even if the employer acting was acting under a statutory obligation, ‘compliance with that obligation required it… to take the initiative in bringing the relevant employment to an end’ [Mohazab]. The Court ordered that the decision of the Full Bench be quashed and that the appeal be heard and determined according to law.
Matter reviewed:  FWCFB 91
A Full Federal Court has overturned the Commission’s decision to approve the ALDI Regency Park Agreement 2015. The Court found that the agreement did not cover the employees who were employed at the time it was made within the meaning of s.172 of the Fair Work Act. As none of the 17 employees were working in their prospective job positions at the new location at the time they voted on the deal, the Full Court stated the Commission failed to address the s.186 requirement that it be agreed by employees ‘covered by’ it. The Court determined that the agreement should be treated as a Greenfields agreement.
The majority of the Full Court also found that the Commission failed to adequately analyse whether a ‘make good’ clause in the agreement left employees better off compared with the retail award. The Commission proceeded on the basis that the ‘make good’ clause made this analysis unnecessary and had characterised the clause as ‘creating an enforceable right to payments to employees equal to or higher than those contained in the GRIA [General Retail Industry Award 2010]’. Justice White said that the make-good clause ‘creates at best an enforceable entitlement only to the shortfall between the employee’s payment entitlement under the agreement and the employee’s corresponding entitlement under the GRIA’. The Court ordered that both the decisions of the Full Bench and Commission at first instance be quashed.
Under s.156 of the Fair Work Act the Commission is required to review all modern awards every four years. All material in relation to the 4 yearly review, including a detailed timetable, is available on the Commission’s website. As part of the 4 yearly review, the Commission is redrafting all modern awards to make them more consistent and easier for employers and employees to use. A dedicated page of each of the awards under review has been created.
Additional submissions were received in response to Directions from the Full Bench. A decision in relation to this matter is expected in the first quarter of 2017.
Following the decision on 31 August 2016 [[2016 FWCFB 6178], 29 of 113 modern awards which provide for paid overtime had not been resolved. Of those 29 awards, 21 provided for TOIL at overtime rates. The Full Bench had previously observed that the same level of safeguards were not necessary when TOIL is at overtime rates, as the financial incentive for employers to enter into such arrangements is much less [ FWCFB 6847]. Accordingly, the Full Bench proposed to modify the TOIL term to be inserted into those awards that provide for TOIL at overtime rates [ FWCFB 6333]. The remaining eight awards had been the subject of award-specific submissions seeking that the awards not be varied to insert a model TOIL term.
Following a period of consultation, the Full Bench issued a decision on 13 December 2016 (the December decision) which varied a further 23 modern awards [ FWCFB 7737]. The December decision inserted a model overtime rates TOIL term in 20 modern awards that provided for TOIL at overtime rates. The model overtime rates TOIL term removed the requirement for the TOIL agreement to be in writing unless a written agreement was a current award condition. The Full Bench deferred consideration of the TOIL provision in the Airport Employees Award 2010 until the Award stage of the Review.
In relation to awards which had been the subject of award-specific submissions, the December decision varied the Clerks – Private Sector Award 2010 to insert the July model TOIL term and varied the Medical Practitioners Award 2010 and Social, Community, Home Care and Disability Services Industry Award 2010 to insert a modified form of the July model TOIL term which retained aspects of the existing award terms.
The Full Bench has referred the Broadcasting and Recorded Entertainment Award 2010 to a conference to seek to resolve the remaining issue in contention. It has deferred further consideration of the TOIL provisions in the Journalists Published Media Award 2010 until after the Media, Entertainment and Arts Alliance’s coverage application has been determined, though a conference will be convened with a view to resolving contested issues.
Further to the December decision, draft determinations in respect of the Pastoral Award 2010 and the Horticulture Award 2010 which take into account the parties’ agreed position have been published for comment.
Plain language draft guidelines (PDF) (the guidelines) were published on 9 November 2016 in accordance with the statement issued by the Commission on 4 November 2016 [ FWCFB 7968]. The guidelines were prepared by Mr Eamonn Moran PSM QC on behalf of the Commission and will be a reference for further plain language re-drafting undertaken as part of the 4 yearly review.
A conference was held before Commissioner Hunt on 18 November 2016 to deal with submissions in relation to the guidelines and the standard clauses. A further conference was held on 23 January 2017 to work through remaining concerns parties have with re-drafted standard clauses.
A revised plain language exposure draft of the Pharmacy Industry Award 2010 (PDF) was published on the website on 10 November 2016.
The Commission is considering whether further modern awards should be re-drafted in accordance with the plain language guidelines.
On 1 December 2016 the Full Bench issued the first decision in the payment of wages matter [ FWCFB 8463]. The decision determined the claim in relation to annual leave loading in three modern awards, and the claim in relation to the penalty for late payment of wages in nine awards. A schedule of final determinations (PDF) was published on 16 December 2016. The decision also set out model terms in relation to the ‘payment of wages and other amounts’ and ‘payment on termination of employment’. A further hearing in relation to the model terms has been listed for 8 February 2017.
This matter was heard on 6 and 7 December 2016. The Full Bench have reserved its decision.
This matter was heard on 14–18 November and 1–2 December 2016. A number of witnesses were called and submissions were heard from a number of interested parties. The Full Bench has reserved its decision.
Submissions and evidence were filed in this matter in October 2016. A Statement was issued by the President seeking to confirm the status of the claims before the Full Bench, after a number of claims were withdrawn or varied. Reply submissions are due to be filed in March 2017 and the matter is due to be heard in April 2017.
During the quarter one new modern enterprise awards was issued: Note Printing Australia Award 2016 [MA000156].
A Full Bench has been constituted to consider an application by the Shop, Distributive and Allied Employees' Association to insert provisions for Blood donor leave and Bone marrow donor leave in five modern awards. The matter will be heard in July 2017.
The Commission has published an evaluation of its Victorian pro bono program. The program helps unrepresented parties meet with a lawyer before their jurisdiction hearing free of charge. The report was prepared by the Centre for Innovative Justice at RMIT University.
Download the report: Evaluation of the Commission's Victorian pro bono program (PDF)
The Commission’s pilot Workplace Advice Clinic program, operating in Sydney and Melbourne, provides free legal assistance to applicants seeking employment law advice.
Qualified lawyers employed by Community Legal Centres provide their services free of charge to self-represented applicants seeking guidance with unfair dismissal or general protections matters. The service, facilitated by the Commission, involves Commission staff scheduling appointments for applicants to meet with a lawyer from one of the legal services at the Commission’s premises.
The Sydney clinic runs on Thursdays with lawyers provided by Legal Aid NSW and Marrickville Legal Centre. The Melbourne clinic runs on Wednesdays and Thursdays with lawyers provided by JobWatch and Springvale Monash Legal Service.
In March 2017, the pilot program will be expanded into Brisbane, with lawyers provided by Legal Aid Queensland. Appointments will available two days a week in Brisbane.
All costs associated with providing lawyers for the Pilot Program are met by the legal services.
The Commission's 2015–16 annual report is now available on the Commission's website.
The President has signed the Fair Work Commission Amendment (Applications for Protected Action Ballot Orders) Rules 2016 which commenced on 1 January 2017. An updated Form F34 – Application for a protected action ballot order (Word) and new Form F34B – Statutory declaration in support of an application for a protected action ballot order (Word) have been approved and published on the Commission’s website. All uncontested applications are now dealt with by Panel Heads on the papers and all protected action ballot order (PABO) applications are now electronic-only files (unless a Member asks for a file to be made up in a contested matter). The rule change enables applications to be determined as efficiently as possible within the legislative timeframe. The amendments are:
The provision of a statutory declaration in support of a PABO application is being implemented to place increased responsibility on the applicant and therefore enable the Commission to place greater reliance on the information provided where an uncontested matter is being decided on the papers.
In forming a view as to whether the requirements of the legislation have been satisfied Members will still seek the views of the respondent before making a determination, providing employers with the opportunity to express any concerns they have with the application or the contents of the statutory declaration.
In addition, Form F17 – Employer's statutory declaration in support of an application for approval of an enterprise agreement (other than a Greenfields agreement) (Word) has been amended to incorporate changes introduced by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016, relating to objectionable emergency management terms. Part 4 of the form has been amended in relation to the use and disclosure of statistical information.
Over the past two years the Commission has been progressively revising all approved forms. The changes made are designed to improve accessibility, and provide consistency of information across the forms.
Commission President, Justice Ross, recently approved the final group of forms in the new format:
Justice Ross also approved amendments to the following forms:
These forms have been amended to remove the option for applicants to submit their credit card information in writing. Instead, to improve security of payment information, Commission staff will now contact applicants to arrange for credit card payments to be made over the telephone. In addition, the form for waiver of an application fee has been streamlined, and is now an approved form:
The new and updated forms are available on the Forms page of the Commission’s website.
The Commission announced changes to the panel system which have been effective from Monday, 17 October 2016. For more information go to the Panel system page.
On 24 November 2016, the Fair Work (Registered Organisations) Amendment Act 2016 (the RO Amendment Act) received royal assent.
The RO Amendment Act will establish the Registered Organisations Commission (ROC), which will be overseen by a new Registered Organisations Commissioner (RO Commissioner), and will change the responsibilities and obligations of registered organisations.
The RO Amendment Act has not yet taken effect, and will not take effect until a date fixed by Proclamation. The Fair Work Commission currently anticipates that this date will be in the first quarter of 2017.
Making of the Proclamation and the commencement date of the RO Amendment Act is subject to approval by the Executive Council.
For more information go to the Registered Organisations Commission page.
The Commission's 2015–2016 Report against the Regulator Performance Framework (PDF) was approved by the Minister on 21 December 2016. Some highlights include that during the reporting period:
Transitional recognition by the Fair Work Commission of state registered associations ended on 1 January 2017. Some state registered associations obtained an extension of time and will continue to be recognised until the end of 2017. A number of state registered associations gained ongoing recognition under Schedule 2 of the Fair Work (Registered Organisations) Act 2009.
More information about recognition of state registered associations is available on the Commission’s website.
The Commission has published its single enterprise agreement legislative checklist (PDF) on the Agreements page of its website.
The checklist is used by the Commission to assist Members when determining agreement approval applications. It is being published to provide parties with an overview of the requirements of agreement making, and to provide insight into the Commission’s process for assessing agreement approval applications.
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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