Fair Work Commission

Welcome

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 engagement@fwc.gov.au.

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 October 2019 and 31 December 2019.

Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.

Workplace Advice Service

The Workplace Advice Service is a key initiative of the Commission’s What’s Next strategy, focusing on improving access and reducing complexity for our users, particularly unrepresented individuals and small business employers.

The Workplace Advice Service operates in New South Wales, Queensland, South Australia, Victoria and Western Australia and partners with law firms, community legal centres and legal aid bodies in each of those States to provide independent free legal advice.

Over the next 12 months the Commission will continue to expand and improve the Workplace Advice Service, including further rolling out the service in metropolitan and some regional locations.

More information is available on the Workplace Advice Service webpage. If your organisation is interested in partnering with the Commission on this initiative, please email was@fwc.gov.au to find out more.

Dismissal matters

Unfair dismissal matters

Titley v Schools Ministry Group

Background

In this application for an unfair dismissal remedy the applicant was employed as a casual pastoral care worker. The respondent dismissed her due to her failure to secure a required qualification. The respondent submitted that the dismissal occurred because the inherent requirements of the job were not met and that the failure to meet the inherent requirements of the job was a breach of a fundamental term of the applicant’s employment.

Outcome

The Commission considered whether there were any personal factors which mitigated the breaches, along with issues of procedural fairness. These were weighed alongside the self-evidently serious nature of her failures to secure her qualification in a timely manner. The Commission found that the applicant was not denied a fair go all round and as a result held there were valid reasons for the dismissal. The Commission was not satisfied that the dismissal was harsh, unjust or unreasonable. The application was dismissed.

Read decision [2019] FWC 7081.

Odgers v Central Queensland Services P/L

Background

The applicant in this unfair dismissal matter was employed as a mine truck operator at the Caval Ridge mine. She was dismissed for misconduct after she placed butterknives and a sex toy in another employee’s carry-on baggage before he boarded a flight. The applicant also appeared in her work uniform in an inappropriate picture with other employees which was posted to Facebook.

Outcome

The Commission found procedural errors in the respondent’s approach to the applicant’s misconduct. The respondent did not raise the airport incident with the applicant until several months after it had occurred. The Commission found there was a valid reason for the dismissal, but that the dismissal was unjust or unreasonable due to the respondent’s failures to follow its agreement obligations and company policy. The dismissal was found to be unfair. The Commission determined that reinstatement was not appropriate, but compensation was. However, the Commission decided that the amount of compensation ordered would be reduced by 50 per cent due to the applicant’s misconduct. The Commission ordered compensation of $6,550.10, less tax as required by law, including superannuation at the rate of 9.5 per cent.

Read decision [2019] FWC 7150.

Sathananthan v BT Financial Group P/L

Background

In this unfair dismissal matter the applicant resigned from his role as a Business Development Manager. The applicant contended he was forced to resign because of the conduct or course of conduct engaged in by the respondent.

The applicant had been in a personal relationship with a co-worker which later broke down, both the applicant and co-worker made complaints against each other. The applicant submitted that some of his complaints were not appropriately investigated or considered by the respondent. He further submitted that his workload increased significantly while a colleague was on paternity leave. This increased workload resulted in the applicant having to work excessive hours, working up to 70 hours per week and often on public holidays, weekends and during annual leave.

The respondent filed a jurisdictional objection on the basis that the applicant was not dismissed and was not forced to resign.

Outcome

The Commission considered the jurisdictional issue and merits together. The Commission found that the respondent did not address some of applicant’s legitimate and significant workplace concerns and had provided no indication that it would do so. The Commission also found that the applicant had regularly informed the respondent of the impact that the excessive working hours were having on him.

The Commission held that the applicant had no real or effective choice but to resign. The Commission found that the applicant was forced to resign because of the conduct or a course of conduct by the respondent. The applicant was dismissed by the respondent and the dismissal was unfair. Reinstatement was not sought by the applicant and it found not to be an appropriate remedy by the Commission. The Commission ordered $45,990 in compensation.

Read decision [2019] FWC 5583.

Prill v Leafbrook P/L t/a inTechnology Distribution (Australia Group)

Background

The respondent to this application for unfair dismissal made a jurisdictional objection claiming that it was a small business employer and that the applicant had not completed the requisite 12-month minimum employment period. It was not in dispute that the applicant was employed by the respondent between 21 March 2018 and 15 March 2019, being a total period of 11 months, 3 weeks and 1 day.

The issue in dispute relevant to the jurisdictional objection was whether the respondent was a small business employer in relation to another entity, inTechnology Distribution Inc (the Philippines Company). If the Philippines Company was an associated entity of the respondent the minimum employment period necessary for the applicant to bring a claim of unfair dismissal would be six months, not one year. The applicant submitted that the Philippines Company should be viewed as an associated entity as the respondent would not exist if not for the Philippines Company. The applicant also submitted that pursuant to s.50AAA(6) of the Corporations Act 2001 (Cth) the respondent had a qualifying investment in and significant influence over the Philippines Company.

Outcome

The Commission considered the decision in Lau. The Commission acknowledged that the respondent CEO was not in control of the Philippines Company. No evidence was produced that the respondent held an interest or a right in relation to shares of the Philippines Company. The Commission accepted that on the evidence neither the respondent nor the respondent CEO had the capacity to determine the outcome of decisions of the Philippines Company. The Commission acknowledged that while it may be that the respondent can enforce rights over the Philippines Company by virtue of the contract for services between the companies, it could not be said that the respondent could exert any practical influence over the Philippines Company. The Commission further accepted that it was not apparent that there had been practices or a pattern of behaviour of the respondent affecting the Philippines Company’s financial or operating policies.

The Commission found that the respondent and the Philippines Company were not associated entities. As a result the respondent was a small business employer and the minimum employment period required by s.383 of the Fair Work Act to be completed by the applicant to be protected from unfair dismissal is one year. The applicant did not complete the minimum employment period and was not a person protected from unfair dismissal pursuant to s.382. The application was dismissed.

Read decision [2019] FWC 7542.

Appeal by Sharkey against decision [[2019] FWC 2287] Re: Life Without Barriers

Background

At first instance in this unfair dismissal matter the Commission made an order under ss.400A and 401(1A) of the Fair Work Act that the appellant and her representative pay the costs of the respondent on an indemnity basis. In the unfair dismissal decision, the Commission found that the appellant had not been dismissed but had voluntarily resigned her employment. The order in relation to costs was for the period from 17 December 2018 when the respondent filed its material in support of the jurisdictional objection, to 8 April 2019 when the costs application was heard. The costs were apportioned on the basis that the representative incurred 67 per cent of the total costs and the appellant 33 per cent.

The grounds for appeal included:

• the Commission making significant errors of fact and law in concluding that the appellant committed an unreasonable act or omission within the meaning of s.400A by failing to discontinue her application, and that she knew or ought to have known that her application had no reasonable prospects of success at the time she was served with the respondent’s materials
• that the representative engaged in unreasonable acts or omissions for the purposes of the Commission making an order for costs against him pursuant to s.401, and
• notwithstanding that costs were not awarded under s.611, the Commission extensively considered the operation of that section and stated that she would not have followed the Full Bench Authority in the event that she determined to award costs under s.611.

Outcome

The costs decision under appeal is a decision of a discretionary nature. The Full Bench was satisfied that the public interest was attracted and permission to appeal was granted. The Full Bench held that in some cases it will be objectively apparent that at a particular point in time an application or a response is doomed to failure. However where there are disputed facts which can only be resolved at hearing, which if resolved in favour of a particular party would raise an arguable case, either in support of or opposition to an application, it is unlikely that a party who presses on and seeks that the Commission rule on disputed facts is acting unreasonably.

The material filed by the respondent on 17 December 2018 was the first tranche of material filed in accordance with directions for the hearing of both its jurisdictional objection, and the appellant’s unfair dismissal application. The respondent was required to file its material first on the basis that it had raised the jurisdictional objection. The appellant was required to file her material in relation to the jurisdictional objection and the merits of her application on 7 January 2019. The hearing in relation to both the jurisdictional objection and the merits of the appellant’s unfair dismissal application was held on 1 February 2019.

Accordingly, as at 17 December 2018 when the respondent filed its material, the appellant had not had an opportunity to present her case to the Commission in any cogent way. The only material before the Commission at that time from the appellant was her application for an unfair dismissal remedy. The Full Bench found that the Commission’s conclusions about the material filed by the respondent on 17 December 2018 were not open to her, and were in error in light of the appellant’s material filed on 7 January 2019 and the evidence and submissions at the hearing. The conclusion of the Commission was erroneous and in the view of the Full Bench the error was a significant error of fact. The Full Bench also found the Commission’s finding that the representative’s conduct, in failing to advise the appellant to discontinue her unfair dismissal application upon receipt of the respondent’s material on 17 December 2018, was an unreasonable act. This was based on the same view of the material that the Full Bench have found to be a significant error.

The appellant accepted that the observations made by the Commission in relation to s.611 were obiter. The Full Bench noted that the Commission extensively considered the proper construction of s.611 in circumstances where it was not necessary to do so. The Full Bench was of the view that it is desirable that Members sitting alone should adhere to Full Bench decisions which are relevant to the matter being determined. Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the costs order dismissed.

Read decision [2019] FWCFB 7644.

Hilder v Sydney Trains

Background

In this application for an unfair dismissal remedy the applicant was a 64 year old Customer Service Attendant, employed by the respondent since 2012. He was dismissed after random drug test returned a positive reading for cannabis. The respondent submitted that it has a ‘zero tolerance’ approach to drugs and alcohol in the workplace. The applicant submitted that his dismissal was disproportionately harsh in light of his age, limited ability to gain new employment and limited superannuation.

Outcome

The Commission considered whether the misconduct was serious. It accepted that the applicant’s smoking of one ‘joint’ was a one-off incident, which was supported by medical evidence confirming the applicant was not a habitual cannabis user. The act of smoking prior to the drug test was not reckless, deliberate or intentional. The Commission found that the applicant’s conduct ‘was not serious misconduct and, at worst, was a serious error of judgement which was both explicable and understandable’.

Regarding whether the dismissal was harsh, unjust and unreasonable, the Commission considered that while the respondent’s Drugs and Alcohol Policy is said to be underpinned by a ‘zero tolerance’ approach, ‘the reality is that there is no such thing’. The Commission highlighted an example whereby urine screening will only record a positive THC result over 50 ug/L, ‘in other words, an employee may have a non-detected level of 49 ug/L from an initial screening test … and escape from detection altogether’. The respondent submitted that a breach of the Drugs and Alcohol Policy would not mean automatic dismissal and the applicant’s mitigating circumstances were taken into account in this case. The Commission considered this logically inconsistent with a ‘zero tolerance’ approach and noted that you cannot have a strict ‘zero tolerance’ approach ‘at the same time as you profess to take into account personal and mitigating circumstances in an employees’ show cause response’. The Commission also noted that there was evidence of at least two employees who tested positive for drugs and alcohol that were given a second chance.

The Commission found that the applicant’s dismissal was harsh and unreasonable, or at the very least harsh, within the meaning of s.387 of the Fair Work Act and therefore unfair. The Commission ordered that the applicant be reinstated to his former position with the respondent to pay lost renumeration equivalent to 50% of the average remuneration the applicant would have otherwise received from the date of dismissal.

Read decision [2019] FWC 8412.

Boyd v MarketTrack Global P/L t/a Numerator

Background

In this matter, the 21 day period prescribed by s.394(2) of the Fair Work Act for the applicant to make his unfair dismissal claim expired on Monday, 7 October 2019. That day was Labour Day and a public holiday in New South Wales. The application was filed by the applicant’s representative the following day on 8 October 2019.

Commission staff contacted the applicant’s representative regarding the receipt of the application outside of the 21 day period, who submitted that the application was lodged within the 21 day legislated timeframe pursuant to s.36(2) of the Acts Interpretation Act 1901 (Cth) (the AI Act) as in force on 25 June 2009. Section 36(2) of the AI Act provides that ‘Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.’

The applicant’s representative submitted that as Monday, 7 October 2019 was a public holiday in New South Wales, the next business day after 7 October 2019 was Tuesday, 8 October 2019 and accordingly, the time for lodging the application was extended to 8 October 2019, and the application was therefore lodged within that time.

The respondent objected on the basis that Monday, 7 October 2019 was a State public holiday and not a National public holiday. While the Commission’s New South Wales office was closed on that day, other Commission offices nationally were opened and were able to accept applications electronically. The respondent submitted that as the application was lodged electronically by the applicant’s representative on 8 October 2019, there was nothing to suggest it could not have been lodged electronically on 7 October 2019.

Outcome

The Commission found that the application was made within time, and no extension of time was necessary. Monday 7 October 2019 was a public holiday in NSW. The NSW registry of the Commission was closed, as was the office of the applicant’s representative. The respondent’s premises, where the applicant was based, was located in Crows Nest, NSW. The Commission held that in this case there was no connection with any other state or territory other than NSW, and accordingly there was no requirement for the applicant’s representative to check whether a Commission registry in another state or territory was open in order to lodge an application within time.

Read decision [2019] FWC 8489.

General protections matters

Appeal by Milford against decision [[2019] FWC 4892] Re: Coles Supply Chain P/L

Background

The appellant in this matter sustained a shoulder injury while working as a store person in 2014. He returned to work however his condition worsened, which resulted in him being unable to work a full shift after 1 October 2014. The appellant had been receiving weekly workers’ compensation payments and on 20 June 2018, he wrote to the respondent seeking a return to work for rehabilitation. On 20 July 2018 the respondent sent correspondence in reply stating that it could not accede to his request to return to work as the appellant was no longer an employee and had not been since 31 December 2014.

The appellant lodged his general protections dismissal application on 5 August 2018 pursuant to s.365 of the Fair Work Act. The appellant contended that the respondent had never previously informed him that his employment had been terminated, and that the 20 July 2018 letter constituted a dismissal effective from that date. The respondent contended that it had never dismissed the appellant and rather his employment as a casual employee had terminated when he completed his last shift on 1 October 2014.

In the first decision the Commission determined that the 5 August 2018 application was not lodged within the 21 day time period prescribed by s.366(1)(a) and that the appellant may make an application for an extension of time pursuant to s.366(2) [[2019] FWC 844]. The appellant appealed this decision. The Full Bench refused permission to appeal [[2019] FWCFB 2277]. The Full Bench considered the appellant’s appeal to be premature. To that point the Commission had dealt only with the question of whether an extension of time under s.366(2) was required. No consideration had been given to any application to allow a further period. In the second decision the Commission refused to grant the appellant an extension of time pursuant to s.366(2) to lodge his application [[2019] FWC 4892].

In this appeal the appellant contended that that both the first decision and the second decision were in error because his application was filed within the time limit prescribed by s.366(1).

Outcome

The Full Bench acknowledged that the appellant filed his s.365 application on 5 August 2018 which was within 21 days of the date of the pleaded dismissal. The Full Bench also acknowledged that the parties’ respective positions allowed for only two possibilities. First, that the appellant was dismissed on 20 July 2018 and his application was therefore filed within the 21 days prescribed by s.366(1)(a). Or second, that his employment terminated at the end of his last shift on 1 October 2014 and there was no dismissal at all.

The Full Bench noted that the Commission’s determination in the first decision proceeded on the determination that the appellant was terminated on 1 October 2014 and involved the complete rejection of appellant’s pleaded case concerning his dismissal. The Full Bench considered that the time limitation in s.366(1) must be read as operating by reference to the dismissal that is pleaded in the application that is lodged in the Commission. The Full Bench considered that the relevant dispute was not about the precise date upon which the pleaded dismissal took effect, but whether there has been a dismissal at all. Acceptance of the respondent’s position concerning the date of the termination necessarily involved a denial that the 2018 dismissal pleaded in the appellant’s application ever occurred. The Full Bench found that the first decision involved in substance the Commission doing what the Full Bench in Hewitt said the Commission had no power to do, namely dealing with the merits of the appellant’s application and determining that he was not in fact dismissed in the circumstances claimed in his application. Further, there was no basis in the second decision for s.366(2) to be applied to a termination date of 1 October 2014, since on any view no dismissal occurred on that date by reference to which s.366(1) could validly operate.

The Full Bench found that the appellant’s application was lodged within the 21-day time period. Permission to appeal was granted and the first and second decisions quashed. The application was referred to Lake DP to be dealt with under s.368 of the Fair Work Act.

Read decision [2019] FWCFB 7658.

Bargaining & agreement making matters

Enterprise agreement matters

Appeal by Shop, Distributive and Allied Employees Association and Others against decision [[2019] FWC 6105] Re: Retail and Fast Food Workers Union Incorporated

Background

At first instance the Commission dismissed an application by Kmart for approval of the Kmart Australia Ltd Agreement 2018 on the basis it was not satisfied that the Agreement was genuinely agreed to by employees as required by s.186(2)(a) of the Fair Work Act. The Commission was also not satisfied that the Agreement was ‘made’ in accordance with s.182(1), on the basis that Kmart did not request employees to vote who were employed at the time of the voting process and would be covered by the Agreement.

The appeal grounds advanced by the SDAEA, Kmart and the AWU were largely the same and were principally founded on the Commission’s construction of s.181(1). Namely, that employees who were employed after the commencement of the voting process, and prior to its conclusion, were to be the subject of an employer request under that provision.

The Full Bench considered that the appeal would be in the public interest as it raised important questions concerning the construction of s.181(1) and the decision not to approve the Agreement directly affected the employment entitlements of a large number of employees of a major employer in the retail sector.

Outcome

In the initial Decision, the period during which the employees were requested to vote was understood by the Commission to be constituted by, or including (together with the access period) the period from the commencement to the conclusion of the voting process, which in this case was the ten-day period of 21 to 30 November 2018 inclusive. It was on the basis of this construction that the Commission found that Kmart’s exclusion from the voting process of employees who were engaged and worked on 29 and 30 November 2018, and perhaps 28 November 2018 as well, meant that the Agreement had not been ‘made’ in accordance with s.182(1).

The Full Bench found that the ‘request’ contemplated by s.181(1) is a single act or event which occurs at the end of the access period and immediately prior to (or perhaps upon) the commencement of the voting process. Section 181(1) refers to the ‘request’ being directed at employees employed ‘at the time’ who will be covered by the agreement. The Full Bench preferred the approach whereby the ‘time’ of the request referred to in s.181(1) encompasses the whole of the access period and is to be equated to the ‘time’ referred to in s.180(2)(a).

The Full Bench found that s.180(1) obliges the employer to comply with the requirements set out in the section, and the evident policy purpose of that obligation and the specific requirements in ss.180(2), (3) and (5) is to ensure that before a vote upon a proposed agreement commences, the employer has taken all reasonable steps to ensure that employees have access to a copy of the agreement, have had it explained to them, and have been informed of the time, place and method of the vote. These steps may broadly be characterised as directed at endeavouring to ensure that there is an ‘informed electorate’ which is capable of genuinely agreeing to a proposed enterprise agreement. That statutory purpose would obviously be best achieved if those employees to whom a request may be directed under s.181(1) constitute the same group of employees in relation to whom the requirements of ss.180(2), (3) and (5) apply. Therefore, the requirements in ss.180(2), (3) and (5) and the request that may be made pursuant to s.181(1) once these requirements have been complied with operate by reference to the same cohort of employees.

In the initial Decision, the Commission determined that those to whom a request might be directed under s.181(1) includes employees first engaged in the period from the commencement of the voting process until its end, and also casual employees who worked in that period but who did not work during or at the end of the access period. The Full Bench respectfully found that approach was not arrived at through the proper construction of s.181(1). Such an approach would defeat the purpose of s.180, since it would allow newly-engaged employees to vote who had not been given access to the agreement or have it explained to them. It would also give rise to the practical difficulty, where there is an extended voting period, that an employer would have to continually add to the ‘roll’ of voters and provide with a means of voting any new employees who are engaged up until the very end of the voting process. Such employees, if they were not employed by Kmart at the ‘time’ referred to in s.181(1) as the Full Bench construed it, did not have any entitlement to participate in the voting process. Conversely, the achievement of that purpose would be undermined if employees to whom these requirements did not apply because they were not employed at the time referred to in s.180(2)(a) could nonetheless be requested to vote to approve a proposed agreement pursuant to s.181(1).

On re-determination, The Full Bench considered whether this error was capable of affecting the conclusion that a majority of employees who were eligible to vote in accordance with s.181(1), and who voted, cast a valid vote to approve the Agreement. The reported outcome of the vote was that 23,110 employees voted, and 21,191 of those voted in favour of approval of the Agreement. The Full Bench accepted that 1,422 employees who were employed after the voting process commenced but had not been employed at the time of the request/access period were included in the voting cohort. That being the case, The Full Bench found that it is clear that Kmart’s error could not have affected the overall result and that the Agreement was made in accordance with s.182(1).

Permission to appeal was granted with respect to each appeal, each appeal upheld, and the Decision quashed. The Full Bench was satisfied as to of all the elements of genuine agreement prescribed by s.188(1). The Full Bench accepted undertakings provided by Kmart and were satisfied that the Agreement passed the BOOT. Kmart was directed to file and serve a consolidated and signed copy of the proposed undertakings referred to in the decision within two days of the date of the decision.

Read decision [2019] FWCFB 7599.

Appeal by The Australian Workers’ Union against decision [[2019] FWCA 2332] Re: Rigforce P/L t/a Rigforce

Background

At first instance the Commission approved the RFD Enterprise Agreement 2019 (the RFD Agreement). Rigforce is a labour hire provider to the offshore drilling industry. Rigforce was previously named Interpeople Contracting Services Pty Ltd (ICS). In 2013 ICS, as Rigforce then was, entered into the ICS Enterprise Agreement 2013 (ICS Agreement). In 2015, an entity named RF Managed Services Pty Ltd (RFMS), entered into the RFMS Enterprise Agreement 2015 (the RFMS Agreement). It is not in dispute that RFMS is a related entity of Rigforce/ICS.

The AWU lodged an appeal contending that the approval of the RFD Agreement was in error because the Commission could not have been satisfied that the group of employees covered by the RFD Agreement was fairly chosen as required by s.186(3) of the Fair Work Act. The AWU submitted that the fact that:

• there were only three employees who made the RFD Agreement
• the RFD Agreement had a broad coverage, and
• the Rigforce business had the bulk of its workforce employed by a different entity under the RFMS Agreement, who were now likely to be moved to employment by Rigforce under the RFD Agreement;

should have raised a ‘red flag’ to the Commission concerning whether the coverage of the RFD Agreement was fairly chosen, and led to a broader inquiry into this question.

The AWU also contended that the Commission could not have been satisfied on the material before it that the RFD Agreement had been genuinely agreed to by the employees covered by it as required by s.186(2)(a). The AWU submissions included that:

• the Commission needed the information about what the employees had been told in their individual discussions before voting, but no such information was provided
• the use of the Rigforce entity to bargain for a new agreement to replace the ICS Agreement rather than bargaining for a new agreement with the much larger workforce employed by the RMFS entity, with the subsequent transfer of at least one employee from RMFS to Rigforce, was indicative of a lack of genuine agreement, and
• the inaccurate information concerning the rates of pay in the explanatory document suggests lack of genuine agreement.

Outcome

The Full Bench found that the material supported the conclusion that the employees covered by the RFD Agreement were at least operationally if not geographically distinct. The coverage was the same as the predecessor ICS Agreement approved by the Commission, which assists to explain the business rationale for the choice of coverage. It has a logical relationship with the coverage of the Hydrocarbons (Upstream) Award 2010. The Full Bench held that questions may arise where a small group of employees make an agreement with their employer covering a much wider group in terms of classifications and geography, but the coverage of the RFD Agreement was not significantly wider than the group of employees who made the agreement. The Full Bench also found that the ‘fairly chosen’ requirement does not deal with a situation where a group of companies selects different employing entities within the group at different times for the purpose of making enterprise agreements and operating as the employer of the relevant part of the workforce.

The Full Bench found that except for the incorrect statement in the explanatory document, it might be said that the approach taken by the employer was a model of its kind. However, that incorrect statement changed the position. The explanatory document concerning how the RFD Agreement changed from the predecessor ICS Agreement relevantly stated that the minimum rates of pay in the RFD Agreement had been increased. It was apparent to the Full Bench, and Rigforce conceded, that this statement was incorrect. While each employee was at the time paid significantly in excess of the rates specified in the RFD Agreement, the employees were told that they could be dropped back to the minimum rates. The Full Bench stated that it is a statement of the obvious that rates of pay are, to employees, likely to be the most fundamentally important aspect of an enterprise agreement. That position in this matter was no different merely because the employees at that time were receiving actual rates of pay higher than what was proposed in the RFD Agreement. The employees were concerned about the prospect of their pay rates being reduced in the future to those in the agreement, and Rigforce advised them that this could possibly happen.

In those circumstances, the Full Bench considered it necessary to grant permission to appeal in respect of the ‘genuinely agreed’ ground, uphold the appeal, and quash the Decision. The application for approval of the RFD Agreement was remitted to Lee C for redetermination.

Read decision [2019] FWCFB 6960.

The Hon. Christian Porter MP, Attorney General and Minister for Industrial Relations v Metropolitan Fire and Emergency Services Board; United Firefighters’ Union of Australia

Background

This matter involved two applications by the Minister seeking Full Bench review of decisions by the Commission pursuant to s.605 of the Fair Work Act in relation to the approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016. This matter also involves an application by the Metropolitan Fire and Emergency Services Board (the MFESB) pursuant to s.217 to amend the Agreement (the MFESB application), which was opposed by the Minister.

The principal ground of each of the Minister’s applications challenged the Commission’s conclusion that the Agreement did not contain discriminatory terms within the meaning of s.195(1) (the discrimination ground). The Minister’s second application also contended that the Commission erred in accepting undertakings by the MFESB, on the basis that these undertakings resulted in substantial changes to the Agreement (the undertakings ground). The Minister also opposed the Commission’s granting of the MFESB application on the basis that the changes it proposed would effect substantial changes to the Agreement.

The discrimination ground

An interlocutory decision by the Commission (the first decision) found that the Agreement satisfied the enterprise agreement approval requirements, except for some clauses which operated to exclude s.65 of the Fair Work Act. Section 65 confers the right to request flexible working arrangements (such as part-time employment) in a range of different circumstances (eg employees with parental or carer responsibilities). The Commission subsequently approved the Agreement (the second decision) after accepting undertakings by the MFESB in relation to this issue.

In the first decision the Commission considered objections advanced by the Minister that the same provisions of the Agreement that operated to exclude s.65 were also ‘discriminatory’ terms within the meaning of s.195. The basis of the Minister’s objection was that the relevant provisions of the Agreement indirectly discriminated against women and employees with parental and carer’s responsibilities. However, the Commission found that they were bound by the construction of ‘discriminates’ adopted by Tracey J in SDAEA v National Retail Association (No 2) (SDA v NRA) for the purposes of s.195, with the consequence that ‘discriminates’ only includes direct discrimination. The Commission went on to say that if it was free to determine the proper construction of s.195(1) itself, the conclusion would be that the provision also encompassed indirect discrimination, and that the relevant provisions of the Agreement all indirectly discriminated against women and employees with parental and carer’s responsibilities.

In relation to the above findings, the Minister submitted that the Commission erred in considering that they were bound by the construction of ‘discriminates’ in SDA v NRA, and that the text and context of s.195(1) supported a position that ‘discriminates’ includes indirect discrimination.

The undertakings ground

The Minister submitted that in the second decision the Commission failed to consider whether the undertakings resulted in substantial changes to the Agreement, and therefore did not take into account a relevant consideration.

The MFESB application

The MFESB sought two variations to the Agreement pursuant to s.217 of the Fair Work Act. The original Agreement included several provisions in relation to part-time employment which were all drafted in substantially similar terms. The changes to the Agreement effected by the undertakings accepted in the second decision resulted in alteration to some of these provisions, but others remained unchanged. The MFESB contended that the absence of uniform alteration to each of these ‘mirror’ provisions resulted in ambiguity and uncertainty which would be resolved by the proposed variation.

The Minister opposed the MFESB application on the grounds that the proposed changes would effect substantial changes to the Agreement in relation to part-time employment arrangements, rather than merely removing an ambiguity or uncertainty. The Minister also submitted that the proper construction of s.195 was an issue of importance and general application, and that it was therefore undesirable that the grant of the MFESB application might remove this issue from consideration. 

Outcome

The undertakings ground

The Full Bench rejected the Minister’s application for review of the second decision on the undertakings ground for two reasons. Firstly, the Full Bench found that it raised no issue of importance or general application which would attract the public interest or provide a discretionary justification for the conduct of the review. Secondly, the Full Bench found that the undertakings did not result in substantial change to the Agreement. This conclusion was formed on the basis that the undertakings only affected a small number of clauses concerning part-time employment, only a small number of covered employees actually work part-time, and the undertakings have no consequence for the pay or other employment benefits of employees under the Agreement.

The MFESB application

The Full Bench found that there was ambiguity and uncertainty associated with the provisions of the Agreement subject to the MFESB application, for the same reasons advanced by the MFESB. The Full Bench rejected the Minister’s submission that the grant of the MFESB application would constitute any fundamental re-casting of the part-time employment provisions of the Agreement, finding that such variation merely perfected what was plainly intended by the undertakings proposed by the MFESB and accepted by the Commission in the second decision. The Full Bench exercised its discretion to grant the MFESB application and order that the Agreement be varied in the terms sought in that application.

The discrimination ground

The Full Bench noted that the Minister’s discrimination ground of review is founded on the findings made by the Commission in the first decision that a number of provisions of the Agreement were indirectly discriminatory. The Full Bench found that that the modifications to the Agreement effected by the undertakings accepted in the second decision together with variations made as a result of the Commission’s grant of the MFESB application have entirely removed the basis upon which those findings were made. The Full Bench found that it was therefore not necessary to consider if the proper construction of ‘discriminatory’ for the purposes of s.195 of the Fair Work Act incorporates indirect discrimination.

Nevertheless, the Full Bench expressed their view that they did not support the Minister’s contentions that the proper construction of ‘discriminatory’ for the purposes of s.195 incorporates indirect discrimination. The Full Bench observed that a construction of ‘discriminatory’ which incorporated indirect discrimination would require the Commission to consider the impact and effect of indirectly discriminatory terms on people other than those covered by the Agreement. The Full Bench noted that they could not conceive how such a task could practically be undertaken, particularly in the case of a start-up business with only a few employees that intends to expand, or a business with a high labour turnover, or a greenfields agreement where there is as yet no workforce at all.

Conclusion

The Full Bench refused the Minister’s review applications, and varied the Agreement as per the MFESB application pursuant to s.217.

Read decision [2019] FWCFB 6255.

Disputes & industrial action matters

Industrial action matters

Burswood Resort (Management) Ltd v United Voice

Background

This decision relates to an application by Burswood Resort (Management) Limited (Crown Perth) seeking an order to stop industrial action. United Voice organised industrial action to take place at a prominent entertainment venue on 5 November 2019, which was Melbourne Cup Day. The application involved the resolution of whether a two-hour stoppage of work from 11.00am to 1.00pm is different in nature to a four-hour stoppage of work from 10.00am to 2.00pm. Crown Perth submitted that if the answer was yes, then an order that industrial action by employees stop must be issued under s.418 of the Fair Work Act. United Voice contended that it had informed its members to stop work for the period of 11.00am to 1.00pm on Melbourne Cup Day, however the notice of employee claim action, dated 30 October 2019 (Notice 4) stipulated a stoppage of work of four hours’ duration. Notice 4 stated that the time and date of the industrial action was from 10.00am to 2.00pm, Tuesday 5 November 2019.

Crown Perth submitted that United Voice was organising for its members employed by Crown Perth to take industrial action by stopping the performance of work from 11.00am until 1.00pm on Melbourne Cup Day, therefore the proposed action in Notice 4 was not subject of a notice of employee claim action as required by s.414 and would thereby be unprotected industrial action. United Voice argued that as long as the intended industrial action was a work stoppage of four hours or less then in effect that industrial action would be protected, having met the notice requirements in s.414(6).

Outcome

The Commission considered the identification of the existing or potential industrial action, and whether that existing or potential industrial action would be protected. The Commission found that the two-hour stoppage of work from 11.00am to 1.00pm was probable, threatened and being organised by United Voice. The Commission considered the decisions in Thiess and Boral. The Commission acknowledged that the issue in this matter can be reduced to whether a two-hour stoppage of work from 11.00am to 1.00pm, is different in nature to a four-hour stoppage of work from 10.00am to 2.00pm.

The Commission was unpersuaded by the United Voice argument that the Fair Work Act enables variance of the industrial action in the constraints of the notice of employee claim action under s.414. The Commission acknowledged that the four hours’ duration cannot be cleaved from the ‘stoppage of the performance of work’ and replaced with an alternative duration. The Commission found that industrial action was being threatened and organised by United Voice and the two-hour stoppage was probable and not covered by, or the subject of Notice 4 and was therefore not protected industrial action.

Read decision [2019] FWC 7571.

Registered organisations matters

Application by United Voice and National Union of Workers

Background

The Commission considered the action to be taken after an amalgamation ballot. The period within which an application may be made to the Federal Court of Australia under s.69 of the Fair Work (Registered Organisations) Act 2009 (Cth) in relation to the amalgamation had ended.

Outcome

The Commission found that no application had been made to the Federal Court. There were no proceedings (other than civil proceedings) pending against either United Voice or the National Union of Workers. The Commission prescribed 11 November 2019 to be the day on which the amalgamation is to take effect.

Read decision [2019] FWC 6756.

Procedural matters

Cullen v AEG Ogden (Convex) P/L t/a Brisbane Convention & Exhibition Centre

Background

In this application for an unfair dismissal remedy the respondent sought permission under s.596 of the Fair Work Act to be represented by a paid agent. The applicant provided a submission to the Commission seeking that permission for the respondent to be represented or assisted by a lawyer or paid agent be refused. The Commission granted the respondent permission to be represented by a paid agent given the complexity of the matter. The Commission considered that unfairness to the applicant would be ameliorated by the fact that he intended to be represented at the hearing by a friend who has legal qualifications and experience in similar matters.

The applicant sought that his application for an unfair dismissal remedy be reallocated to another Member of the Commission for hearing. The applicant asserted that the presiding Member had conducted ‘unrecorded conciliation conferences’, to which the Member was privy to offers and counter offers of settlement, and that the presiding Member had formed a view in relation to some matters of the applicant’s conduct.

Outcome

The Commission noted that whilst she may be aware that settlement is being discussed, or that she may express a provisional view about the state of the evidentiary material that parties have filed, these matters to do not automatically disqualify her from hearing the unfair dismissal application. The Commission considered Watpac and found that matters need not be reallocated simply because a party makes an objection to the matter being heard by the original Member to whom it was allocated. The Commission held the provisional view that the applicant was attempting to control or influence when and by which Member of the Commission his application is heard, or alternatively to defer a hearing to provide leverage for a settlement of his application.

The applicant has appealed the decision to grant the respondent permission to be represented by a paid agent and is seeking a stay of that decision. This application for unfair dismissal was adjourned pending the appeal and any directions that might be made.

Read decision [2019] FWC 6986.

Award modernisation – 4 yearly review

31 modern awards extensively varied

Starting in 2020, the Commission will extensively vary existing awards as a result of the 4 yearly review of modern awards.

The technical and drafting matters for the first group of 31 awards has been completed. The varied awards have been issued and will commence operation on 4 February 2020.

To find out which awards have been varied, and to access the new versions of awards before they commence operation, go to the Modern awards list on the Commission’s website.

Construction awards

Background

On 26 September 2018 the Full Bench issued a decision [[2018] FWCFB 6019] (the September 2018 Decision) dealing with substantive claims in relation to the Building and Construction General On-Site Award (the Building Award), the Joinery and Building Trades Award 2010 (the Joinery Award), the Mobile Crane Hiring Award 2010 (the Mobile Crane Award) and the Plumbing and Fire Sprinklers Award 2010, collectively the ‘Construction awards’. The decision determined many of the claims and identified issues requiring further consideration. Parties were invited to comment on these issues and on draft determinations issued on 23 November 2018 to give effect to the variations determined.

The September 2018 Decision determined that most of the disability allowances in the Building Award should be abolished and replaced with enhanced industry allowances applying to each major sector of the industry. On 31 October 2019 the Full Bench issued a decision [[2019] FWCFB 6860] (the October 2019 Decision) finalising the quantum of the sectorial industry allowances and the disability allowances to remain in the award. A draft determination varying the Building Award accordingly was annexed to the decision and parties were invited to comment.

Outcome

In this decision the Full Bench finalised the outstanding issues from the September 2018 Decision, confirming its provisional views to vary the Building Award in respect of the camping allowance, forepersons and supervisors, and ordinary hours of work. The Full Bench also determined to vary the coverage of the Building Award in respect of testing work by removing clause 4.10(b)(v) and determined that no variation was necessary in respect of a claim to insert a specific classification for a ‘Utility Locator’

The Full Bench also dealt with the issues raised by parties relating to the draft determinations issued in 2018 and with the October 2019 Decision. The Full Bench adopted a number of the amendments proposed by interested parties and rejected a claim to extend a decision made to vary the rest and recreation provisions in the Building Award to the Joinery and Mobile Crane Awards.

The Full Bench accepted submissions from parties seeking a postponement to the proposed commencement date of the new allowance provisions in the Building Award due to the preparatory work necessary to prepare for their introduction. The Full Bench determined that a single variation determination for each award will be issued with an operative date of 1 July 2020.

Read decision [2019] FWCFB 8564.

Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive claims

Background

This decision dealt with variations sought to the transitional arrangements regarding the increase of casual rates with respect to overtime, weekend and public holiday rates.

In a decision issued on 2 September 2019 [[2019] FWCFB 6067], variations were made to the rates of pay for casual employees working overtime and on weekends and public holidays in the Social, Community, Home Care and Disability Services Industry Award 2010. The Full Bench expressed their provisional view that the increase in overtime rates for casuals be operative from 1 December 2019, and the increase in weekend and public holiday penalty rates for casuals be phased in, in two instalments, the first on 1 December 2019 and the second on 1 July 2020.

Australian Business Industrial and the NSW Business Chamber, Australian Industry Group and Australian Federation of Employers and Industries each filed submissions opposing the provisional view of the proposed operative date. Each primarily submitted an extension of the transitional arrangements was necessary, expressing the need to provide notice for employers to accommodate the increase in labour costs, noting the number of casual employees working in the industry. It was also commonly submitted that the implementation of increased costs before a new financial year would likely be unbudgeted for and/or unfunded.

The Health Services Union and United Voice supported the Full Bench’s provisional view and submitted that reasonable notice was afforded to employers to implement the changes.

Outcome

The Full Bench adopted the observations made by the Full Bench in the Penalty Rates – Transitional Arrangements decision, namely that the determination of appropriate transitional arrangements requires broad judgment rather than a formulaic or mechanistic approach involving the quantification of the weight accorded to each particular consideration. In addition, that the transitional arrangements must meet the modern awards objective and fairness must be assessed from an employee and an employer perspective.

The Full Bench considered the factors both in favour and not in favour of deferring the operative date of the variations. The Full Bench particularly considered the increased employment costs and the potential reduction of flexibility as a result of substituting casuals for full-time and part-time employees and in the alternative, the significant proportion of casual employees working in the industry and their existing rates.

The Full Bench determined that the increases in overtime, weekend and public holiday rates for casuals will commence operation, in full, from 1 July 2020, rather than by phased instalments and noted that the deferral provides a reasonable time period.

Read decision [2019] FWCFB 7096.

Annualised salaries decision

Background

In February 2018 the Full Bench issued a decision [[2018] FWCFB 154] (the 2018 Decision) in relation to annualised wage arrangement provisions in modern awards. The Full Bench identified eight conclusions concerning what is necessary for annualised wages arrangement provisions in modern awards. It set out four model clauses that it provisionally considered could give effect to the conclusions. It also expressed conclusions in relation to annualised wage arrangements in specific awards. Interested parties were invited to comment on the provisional views.

The Full Bench resolved a number of issues from the 2018 Decision in a decision of 27 February 2019 [[2019] FWCFB 1289] and later, in a decision of 4 July 2019 [[2019] FWCFB 4368] (the July 2019 Decision), the Full Bench finalised the review of annualised wage arrangements in most of the relevant awards. In the July 2019 Decision the Full Bench confirmed its provisional view that the existing annualised wage arrangements in a number of awards should be replaced with Model Clause 1 or 3. It confirmed that Model Clause 3 should be added to the Health Professionals and Support Services Award 2010 (the Health Professionals Award) on the basis that it is applicable only to supervisory and managerial staff. It also confirmed that Model Clause 4 will be added to the Restaurant Industry Award 2010 (the Restaurant Industry Award), the Marine Towage Award 2010 (the Marine Towage Award) and the Hospitality Industry (General) Award 2010 (the Hospitality Award) in respect of non-managerial staff.

The Full Bench invited submissions with regards to whether clauses 17.3(a) of the Registered and Licensed Clubs Award 2010 (the Clubs Award) and clause 27.2 of the Hospitality Award (which deal with managerial employees) should be regarded as annualised wage arrangement provisions and, if so, which model clause they should be replaced by.

Outcome

On 23 December 2019, draft variation determinations were published for a number of awards arising from the July 2019 Decision. The Full Bench invited parties to comment on technical and drafting matters in the draft determinations and noted that they would proceed on the basis of an operative date of 1 March 2020.

In relation to the Restaurant Industry Award, Hospitality Award and Marine Towage Award, draft determinations were published incorporating provisional conclusions made by the Full Bench. Parties were invited to comment on these draft determinations, but the Full Bench stated that a new operative date will be determined for these Awards in due course, due to the more substantive matters that need to be dealt with.

The Full Bench proposed not to proceed with variations to the abovementioned provisions of the Clubs Award and Hospitality Award and noted that clause 27.2 of the Hospitality Award will be relocated to separate it from the annualised wages provision to apply to non-managerial employees.

The Full Bench decided that a draft determination for the Health Professionals Award will not be published at this stage due to an outstanding matter and invited further submissions in relation to an annualised arrangements provision in that Award.

Read decision [2019] FWCFB 8583.

Finalisation of exposure drafts

Background

During the last quarter, the Commission issued several decisions on the finalisation of the modern awards review, notably:

• [2019] FWCFB 6077
• [2019] FWCFB 6861
• [2019] FWCFB 6935
• [2019] FWCFB 7173
• [2019] FWCFB 7854
• [2019] FWCFB 8569

The Commission issued a decision on 2 September 2019 which explained that the awards would be divided into 3 tranches for the purposes of finalising the technical and drafting matters as part of the 4 yearly review.

Tranche 1

On 25 November 2019, final draft variation determinations were published for 31 Tranche 1 awards. Amendments made to these determinations were grouped into three categories: the correction of minor errors; terminology of rates issues; and award specific issues.

Tranche 2

On 14 October 2019, the Full Bench issued a decision expressing the provisional view that the 41 awards in Tranche 2 should be varied in accordance with the draft determinations issued on the same date and that such variation was necessary to achieve the modern awards objective [[2019] FWCFB 6861]. In a Statement issued 11 December 2019 [[2019] FWCB 8398], the Full Bench confirmed that the drafting amendments made to Tranche 1 awards would also be made to the Tranche 2 awards. Interested parties were directed to file written submissions on the outlined drafting amendments.

Outcome

Four general issues were raised in the submissions, relevantly: operative date, overtime for casuals, expression of numbers and coverage clauses relating to group training organisations. The Full Bench confirmed their provisional view expressed in the 14 October decision that all Tranche 2 final variation determinations will be published no later than 14 February 2020 [[2019] FWCFB 8569]. In respect of the uncontentious awards, the variation determinations will commence operation on 13 April 2020 whilst the remaining variation determinations will become operative on 4 May 2020.

The Full Bench decided that, consistent with the approach taken for Tranche 1 Exposure Drafts, Tranche 2 Exposure Drafts will also be issued without any schedules containing overtime for casuals, unless the relevant Full Bench considers such insertion to be appropriate. It was concluded that the Commission will not make any numeral change to the ‘voluntary employee contributions’ clauses in the Tranche 2 Exposure Drafts and that the use of the words ‘and/or’ in coverage clauses relating to group training organisations is no longer a contentious issue among the parties.

If any of the modern awards the Commission has proposed to vary is the subject of another variation determination between the publication date of the variation determinations (14 February 2020) and their operative date (4 May 2020), the Full Bench said that a conference will be convened for the interested parties in the affected award.

Key court reviews

This section provides summaries of Federal Court of Australia reviews of Commission decisions.

Bronze Hospitality Pty Ltd v Fair Work Commission & Anor

Matter reviewed: [2019] FWCFB 1099

Federal Court of Australia, Fair Work Division

Originating Application [WAD162/2019] filed 27 March 2019, seeking relief under s.39B of the Judiciary Act 1903 (Cth).

Status

This matter was heard before Justice Jackson on 5 September 2019. On 16 October 2019, the Court ordered the application for judicial review be dismissed. The Court found that the whole of the respondent’s employment with the applicant was to be calculated when determining whether she had met the minimum employment period threshold. This included the 2 months she was engaged as a casual and 4 months as a permanent employee, as she had been employed on a ‘regular and systematic basis’. 

Read the Federal Court decision [2019] FCA 1680.

Resources & initiatives

Unfair dismissals benchbook updated

The Commission has published an updated version of the Unfair dismissals benchbook.

The updated version reflects recent case law and rules changes, including information on labour hire workers, notification of dismissal, transferring employees, loss of trust and confidence, application fees and false or misleading evidence.

The benchbook contains plain English summaries of the key principles of unfair dismissal case law and how these have been applied in Commission decisions. It is designed to provide information to parties to assist in the preparation of material for matters before the Commission.

The new version of the Unfair dismissals benchbook is designed to be read online and can be accessed on the Commission’s website. A printable version of the benchbook is also available for download.

For comment: proposed amendments to the Fair Work Commission Rules 2013

The Commission is considering making some changes to the Fair Work Commission Rules 2013 and is seeking public comment.

The proposal includes:

• changes to the rule that currently requires each lawyer or paid agent acting for a party in a matter before the Commission to give notice that they act to the Commission and the other parties
• changes to the way in which bargaining representatives are invited to advise the Commission about whether they support the approval of the agreement or agree with statements in an employer declaration

To find out more go to Proposed amendments to the Fair Work Commission Rules 2013.

Any comments on the proposed changes should be emailed to stakeholderrelations@fwc.gov.au by close of business on Friday, 7 February 2020.

General update

Amended statutory declaration forms published

The Commission has published a number of amended forms, with changes to make the forms easier to complete.

The amended forms are:

• Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)
• Form F18 – Statutory declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement)
• Form F18A – Statutory declaration of an employee representative in relation to application for approval of an enterprise agreement (other than a greenfields agreement)
• Form F20 – Employer’s statutory declaration in support of an application for the approval of a greenfields agreement made under subsection 182(3) of the Act
• Form F21 – Statutory declaration of an employee organisation in support of an application for approval of greenfields agreement made under subsection 182(3) of the Act
• Form F21B – Statutory declaration of an employee organisation in support of application for approval of a greenfields agreement made under subsection 182(4) of the Act
• Form F21C – Employer’s statutory declaration in support of application for approval of a greenfields agreement made under subsection 182(4) of the Act
• Form F23A – Employer’s statutory declaration in support of approval of variation of enterprise agreement
• Form F23B – Statutory declaration of employee organisation in support of approval of variation of enterprise agreement
• Form F24A – Statutory declaration in support of approval of termination of an enterprise agreement
• Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date
• Form F34B – Statutory declaration in support of an application for a protected action ballot order
• Form F42B – Statutory declaration in support of application for a WHS entry permit
• Form F47E – Statutory declaration in support of take-home pay order (multiple employees/outworkers

Links to all the forms can be found on the Forms page of our website.

Annual report 2018–19 published

The Commission has published our annual report for the 2018–19 financial year following its tabling in the Australian Parliament.

Go to Annual reports.

Subscriptions & feedback

You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au.