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Summer 2021: Quarterly practitioner update
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 2020 and 31 December 2020.
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 assists eligible employees and employers by providing free legal advice on the issues of alleged unfair dismissal, bullying and the protection of workplace rights. Due to the impact of COVID-19, the scope of assistance was extended in May to include the new and temporary JobKeeper jurisdiction with a number of our partners volunteering to participate. The advice provided in JobKeeper disputes is available only prior to a Commission hearing by referral from a Commission Member.
If your organisation is interested in partnering with the Commission in the Workplace Advice Service, please email was@fwc.gov.au to find out more.
COVID-19
Award variations
Health Sector Awards – Pandemic Leave
Background
On 8 April 2020 a Full Bench of the Commission issued a decision on its own initiative [[2020] FWCFB 1837], varying 99 modern awards to insert a new schedule, Schedule X – Additional measures during the COVID-19 pandemic. This group of varied awards included a group of 'Health Awards'. Schedule X in each award contained provisions establishing entitlements to unpaid pandemic leave and the taking of double the period of annual leave at half pay.
In a decision published on 27 July 2020 [[2020] FWCFB 3940] (the July decision), this Full Bench determined to vary the Aged Care Award 2010, and the Nurses Award 2010 and the Health Professionals and Support Services Award 2020 in respect of employees who are employed by residential aged care providers or are required to work in residential aged care facilities, to provide an entitlement to paid pandemic leave. This entitlement was inserted as Schedule Y in the abovementioned three awards.
In a statement issued on 29 July 2020, the Full Bench expressed a provisional view that the Schedule X provisions in the Health Awards should have their operation extended until 29 October 2020 – no party opposed this provisional view.
In a statement published on 16 September 2020, a separately constituted Full Bench expressed a provisional view that the operation of Schedule X in 71 awards (not including the Health Awards) should be extended until 29 March 2021, in accordance with the equivalent extension to the Australian Government's JobKeeper scheme.
Outcome
This decision concerns whether the Schedule X provisions in the Health Awards and the Schedule Y provisions in the Aged Care Award, the Nurses Award and the Health Professionals Award should be extended beyond 29 October 2020 in their operation. The basis for the initial insertion of Schedule X into the relevant awards remain apposite. The COVID-19 pandemic is still in progress and without the continued operation of Schedule X there would be a 'regulatory gap' in the award safety net concerning employees who are required to self-isolate. The provision of continuing access to unpaid pandemic leave will enable more people to remain in employment and would support the important public policy objective of encouraging those who should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate.
The Full Bench considered that the applications for extension of the operation of the Schedule X provisions in the Health Awards should be granted. On 20 October 2020 the Full Bench published a statement [[2020] FWCFB 5578] (the October statement) in which it expressed the provisional view that the operation of Schedule Y in the Aged Care Award, Nurses Award and the Health Professionals Award should be extended until 29 March 2021, consistent with the position applying to unpaid pandemic leave in a number of modern awards. The Australian Council of Trade Unions supported provisional view. The Australian Chamber of Commerce and Industry, Australian Business Industrial, NSW Business Chamber Ltd, Aged & Community Services Australia and Leading Age Services Australia opposed the provisional view. The Australian Federation of Employers and Industries also opposed any extension of the Schedule Y provisions.
In the July decision, the Full Bench determined that it was necessary for a paid pandemic leave entitlement to be introduced for employees in the aged care sector in order to achieve the modern awards objective in s.134 of the Fair Work Act. At the time of the July decision the position with respect to the COVID-19 pandemic was deteriorating significantly, particularly in Victoria. The position deteriorated further after the July decision and reached a peak in early August 2020. More recently, the position has significantly improved during a period of lockdown in Victoria. Victoria is currently phasing out of its lockdown restrictions, with public movement no longer restricted and with re-openings in the hospitality and retail sectors subject to specified limitations.
Recent developments suggest that the COVID-19 pandemic is returning to a controlled status in Australia, however these significant improvements have only occurred over approximately the last six weeks, and it is too early to say that it will be sustained having regard to the rapidity in which further waves of infection may spread, Further, the statistics above clearly demonstrate the vulnerability of the aged care sector to the COVID-19 pandemic. The Full Bench found that the risk identified in the July decision in the aged care sector remains, and it is premature to say that this risk will cease to manifest itself in the future.
The Full Bench considered that the appropriate course was to extend the entitlement for a longer period. Commenting that it was only a matter of weeks ago that the resilience of the aged care sector and its staffing model was under severe pressure, at least in Victoria. It is too early to say that the current improving situation will be sustained, and it is essential that infection control measures such as the paid pandemic leave entitlement remain in place for the time being. The Full Bench held that the date of 29 March 2021, when the Schedule X entitlements will cease operation (subject to any further extension) in line with the modified JobKeeper scheme, represented a convenient end point for the extension of the entitlement.
Application to extend entitlement
In a decision delivered on 8 July 2020 [[2020] FWCFB 3561] (the 8 July decision), the Full Bench declined to award a new entitlement for paid pandemic leave in nine awards in the health and social service sectors, including the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award) and the Ambulance and Patient Transport Industry Award 2020 (the Ambulance Award).
The Australian Municipal, Administrative, Clerical and Services Union, Health Services Union, United Worker’s Union together with the Australian Council of Trade Unions desired the opportunity to adduce further evidence at a hearing to persuade the Full Bench that the SCHADS Award and the Ambulance Award should be varied to include a paid pandemic leave entitlement.
The Full Bench found evidence that SCHADS and Ambulance Award covered employees were at some risk of COVID-19 exposure and infection during second wave outbreak, however this risk was not as great as for the aged care sector. The decision to award a paid pandemic leave entitlement applicable to the employees in the residential aged care sector was in part to ensure aged care employees had no financial incentive not to report COVID-19-like symptoms or contact with a suspected COVID-19 case. The Full Bench found some evidence of elevated risk manifested during second wave of infection in Victoria. A disproportionately high number of non-emergency patient transport (NEPT) workers self-isolated, many on multiple occasions, and that a large proportion of these were likely to be casual employees. As at 18 September 2020, there were 355 case notifications of COVID-19, comprised of 201 workers and 154 participants. The Full Bench held that these were a fraction of the numbers in aged care.
The second wave in Victoria was brought under control approximately three months ago, and there is no evidence that significant numbers of employees in the NDIS, home care or NEPT sectors have had to self-isolate in the period since then. Indeed, the Full Bench found no evidence that any have needed to do so. The Full Bench determined there was currently no evidence these sectors’ capacity to provide essential services to client bases were threatened by COVID-19 pandemic.
The Full Bench was not satisfied a paid pandemic leave entitlement in the SCHADS or Ambulance awards was necessary to meet the modern awards objective. The Full Bench also found it necessary to acknowledge yet again that the circumstances of the COVID-19 pandemic in Australia may change rapidly, as has amply been demonstrated over the course of 2020. At the time of this decision, the community outbreak which has occurred in Sydney is of obvious concern. Accordingly, the Full Bench will again simply stand the matter over and will continue to review the situation. Interested parties are granted liberty to apply at short notice.
Read decisions [2020] FWCFB 5768 and [2020] FWCFB 7059.
Award flexibility – Hospitality and Retail Sectors
Background
The President of the Commission received a letter from the Minister for Industrial Relations requesting that the Commission 'undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended'. The awards identified by the Minister were:
- the General Retail Industry Award 2020
- the Hospitality Industry (General) Award 2020
- the Restaurant Industry Award 2020, and
- the Registered and Licenced Clubs Award 2010.
Section 157(3)(a) of the Fair Work Act provides that the Commission may make a determination varying a modern award 'on its own initiative'.
The President issued a Statement (PDF) on 31 August 2020 noting that it was likely the direct economic and social impacts of the pandemic will be felt for some time to come, and that there will be a continuing need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support the recovery. A draft award flexibility schedule was attached to the statement. The Minister's letter identified potentially simplified pay arrangements in the form of 'loaded rates' and/or 'exemption rates' and further streamlining of present classification structures as additional award related flexibility measures that 'could prove critically important for providing businesses in the most distressed part of the economy with the confidence to increase hiring during the recovery'.
Outcome
The President proposed to commence a process on the Commission's own motion to consider the inclusion of loaded rates and exemption rates clauses in the priority modern awards identified by the Minister. The process will also consider whether any changes can be made to simplify the classification structures in the priority modern awards and any other changes proposed by any interested party. The process commenced with conferences of interested parties on 17 and 18 December 2020.
Read decision [2020] FWC 5927.
For further details about this matter including background materials and directions, please visit the Award flexibility – Hospitality and retail sectors webpage.
Clerks – Private Sector Award 2020
Background
On 28 March 2020 the Commission issued a decision [[2020] FWCFB 1690] (the March 2020 Decision) granting a joint application filed by the Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI) and supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU), to insert a new schedule, 'Schedule I-Award flexibility during the COVID-19 pandemic', into the Clerks – Private Sector Award 2020 (the Clerks Award). After granting three applications to extend its operation the Schedule was due to cease operation on 29 March 2021.
The terms of Schedule I reflect the extraordinary circumstances arising from the restrictions imposed to contain the COVID-19 virus. Circumstances suggested that there was a need to consider whether it is necessary to vary the Clerks Award to provide a more enduring means of facilitating agreed working from home arrangements. On 17 December 2020 the Ai Group and ACCI filed a joint application to vary Schedule I. The Joint Application is the product of the discussions between the parties and is not opposed by the ACTU or the ASU. The Joint Application seeks to extend the operation of Schedule I until 30 June 2021 and to replace the current clause I.2.1 with a new provision dealing with remote working arrangements.
Outcome
The provisional view of the Full Bench was that Schedule I should be varied and extended until 30 June 2021 in accordance with the Joint Application. The Full Bench provided the opportunity for any interested party opposing this provisional view to file a submission. The Full Bench stated that if no submissions were filed opposing the provisional view, the Full Bench would issue a variation determination in the same terms as the draft determination. No submissions were filed opposing the provisional view. The award was varied.
Read decisions [2020] FWCFB 6892 and [2020] FWCFB 6985.
To access documents related to this matter please see the major cases webpage Clerks – Private Sector Award 2020 – Work from home.
Stand down disputes
Buttress v Preston James 1 Pty Ltd
Background
This matter relates to an application to deal with a dispute involving stand down. The respondent in this matter conducts a recruitment business which provides recruitment staff to recruitment companies. The applicant was employed as State Manager. On 23 March 2020 the applicant received a phone call from the respondent's Group Manager, she believed that it was with a view to engineering her termination from the business on the grounds of gross misconduct. It was alleged that the applicant had contacted a candidate to work with them separately to the respondent. These allegations were rescinded the same day. As a result, the relationship between the applicant and the Group Manager began to deteriorate.
The applicant received a phone call from the Group Manager asking if she had changed her LinkedIn password, the applicant confirmed that as the respondent had recently chosen to no longer pay for a subscription on her behalf that she had changed her password. The Group Manager was not happy with her response, and he then gave the applicant three options that included she be stood down without pay, she agree to a contract variation whereby she be paid commission only or she agree to a new contract of employment working only two days a week. The applicant indicated that she was happy to help in any way to assist the company to deal with the impact of COVID but that she didn’t want a permanent change made to her contractual arrangements. She requested that the options be provided to her in writing. The Group Manager only provided the stand down option in writing to the applicant, citing the impact of COVID-19 as the reason.
On 2 April 2020 the Group Manager called the applicant and told her that she could resume working, however he stated that she would not be paid her salary or her normal commission, rather she would be paid half of the fee received from the client. The applicant declined, noting that 'having been stood down due to a stoppage in work, how could there be 'work' to do?'. The Group Manager then informed her that there was another option available to her, redundancy. Later that day the offer of redundancy was retracted, and the applicant told she could go on JobKeeper or be stood down.
On 3 April 2020 the applicant received an email from the Group Manager attaching a new contract of employment that included a $60,000 reduction in her base salary, a shorter notice period and reduced commission. The applicant maintained she was not willing to sign the new contract given its significantly reduced entitlements.
On 13 May 2020 the applicant sent an email to the Group Manager proposing terms for her departure and informing him that if the parties could not reach a resolution, she would seek to enforce her legal rights. During her period of stand down the applicant forwarded business leads to the Group Manager who then set up interviews and forwarded candidates to clients, this was work applicant would normally have performed herself.
On 19 August 2020 the Group Manager informed the applicant that the business would be restructured and that the role she currently occupied was at risk of redundancy. On 24 August 2020 the Group Manager informed the applicant that the business was going to be wound up and that she would be retrenched and not be paid in lieu of notice.
The applicant asserted that she was not lawfully stood down during the period from 30 March 2020 until 6 July 2020 (First Stand Down Period) and cannot be lawfully stood down between 4 August 2020 and the impending termination of her employment on 24 November 2020 (Second Stand Down Period). The applicant sought an order to this effect so that she can commence proceedings in the Industrial Magistrates Court to recover her lost wages during the Stand Down Period. The applicant was informed by the Industrial Magistrates Court that it was necessary for the Commission to determine whether she had been stood down for the purposes of s.524 of the Fair Work Act before it could make orders for the payment of her unpaid wages.
Outcome
The Commission considered La Plume and whether there a stoppage of work for the purposes of s.524(1)(a). The Commission noted that correspondence between the parties did not identify how the COVID-19 was stopping the respondent performing work, rather it suggested a down turn in work, noting that on the second occasion the applicant was stood down due to 'market conditions deteriorating again, driven by a new lockdown in Victoria'. It was unclear to the Commission how the lock down in Victoria impacted on the recovery of the Western Australian job market. The Commission found that there had been no mandatory business closure in the recruitment sector in Western Australia during either period that the applicant was stood down. The Commission noted that it appeared that the stand down intended to force the applicant to resign from the business to avoid the lengthy notice period contained in her contract of employment.
The Commission was not satisfied that there was a 'stoppage of work' for the purposes of the Fair Work Act which might form the basis upon which the applicant could have been stood down or remain stood down. The Commission was not satisfied that there was no useful work for the applicant to perform during the period she was purportedly stood down for, or that there is no useful work for the applicant to perform now. The Commission was satisfied that the Causation Requirement could not have been met. The Commission further acknowledged that the applicant expressed a willingness on multiple occasions to negotiate temporary changes in her hours of work or other conditions of employment, however the respondent refused to allow her to return to work unless she agreed to permanent substantial reductions in her terms and conditions of employment. The Commission found that it was not reasonable that the applicant be required to make permanent concessions in her employment conditions to address temporary market conditions.
The respondent, having decided her position was redundant rather than terminate her employment immediately, continued to insist that she remain on stand down without pay or means of supporting herself. The Commission was not satisfied that in all of the circumstances of the application that the purported stand down was fair, even if applicant's stand down had been in accordance with s.524(1)(c). The Commission noted that it was not within the Commission's power to order the respondent to pay the applicant her wages for the Stand Down Periods. The Commission ordered that the applicant's stand down should cease immediately and she should be permitted to return to work for the hours and terms set out in her contract of employment.
JobKeeper
JobKeeper 2.0: Extension and changes to the JobKeeper provisions of the Fair Work Act
On 3 September 2020, the JobKeeper provisions in the Fair Work Act were amended to support the continued operation of the JobKeeper scheme until 29 March 2021.
The amendment aims to provide employers with continued flexibility to respond to the ongoing impacts of the coronavirus pandemic while assisting employees to remain in employment and connected to their workplaces.
The amendment made changes to the workplace flexibilities available in Part 6-4C of the Fair Work Act. The Part now distinguishes between ‘qualifying employers’ (employers eligible for JobKeeper payments on or after 28 September 2020) and ‘legacy employers’ (employers that were entitled to at least one JobKeeper payment for an eligible employee before 28 September 2020, but no longer qualify for JobKeeper payments on or after 28 September 2020).
Except for the provisions in Part 6-4C on annual leave, which were repealed from 28 September 2020, qualifying employers continue to have access to the flexibilities available from the inception of the JobKeeper scheme, whilst legacy employers have access to modified flexibilities.
Legacy employers are required to hold a 10 per cent decline in turnover certificate to access the flexibilities, which are subject to expanded notice and consultation requirements.
On 4 September 2020 the Commission published a Fact Sheet (PDF) summarising the changes.
JobKeeper dispute timeliness benchmarks revised
When the original timeliness benchmarks were announced it was noted that they would need to be reviewed to ensure the Commission provides a quality, efficient dispute resolution service.
On 28 September 2020 the JobKeeper dispute timeliness benchmarks were revised. JobKeeper disputes are now to be ‘dealt with’, or have the first activity on file, within 24 hours of lodgment. 90 per cent of matters are to be finalised within 7 days (revised from 4 days), and 100 per cent within 14 days.
Updates to JobKeeper pages on the Commission website
Since September, and in line with the extension and changes to JobKeeper, the Commission has extensively updated the JobKeeper information on its website.
The website now includes more detailed information on the types of JobKeeper disputes the Commission can assist with and how to lodge a dispute, including sample application forms for both employees and employers.
The JobKeeper directions and agreements pages for both qualifying and now legacy employers have been updated to include more detailed information. Information on JobKeeper workplace rights and general protections is now included.
The JobKeeper help page has also been updated with information to help navigate the scheme more broadly, and includes links to relevant information provided by the Fair Work Ombudsman and Australian Taxation Office.
Independent review of the temporary JobKeeper provisions
On 20 October 2020, the government tabled an independent review of the temporary JobKeeper provisions.
The review found an estimated 3 out of 4 employers who accessed JobKeeper had used at least one of the temporary workplace flexibilities. Nearly all of those employers said the flexibilities had been 'important' or 'essential' to maintaining their operations.
The review noted the relatively low number of JobKeeper disputes brought to the Commission, compared to other jurisdiction and that the provisions were frequently implemented verbally.
A copy of the review can be accessed on the Attorney General’s website.
Major Federal Court case – Qantas Airways Limited v Flight Attendants' Association of Australia [2020] FCAFC 227
On 17 December 2020, a Full Court of the Federal Court handed down a majority ruling in ‘the JobKeeper case’. The dispute concerned the interpretation of s.789GDA of the Fair Work Act, the ‘minimum payment guarantee’ of the JobKeeper scheme.
Qantas, appealing a previous decision, contended that the provision meant that amounts payable to an employee in relation to the performance of work during a JobKeeper fortnight were equal to the amount ordinarily payable to the employee during the fortnight. The respondents, the Transport Workers’ Union and Australian Municipal, Administrative, Clerical and Services Union, contended that the provision meant the amounts payable were those actually earned during the JobKeeper fortnight.
Depending on the facts, the differing interpretations could lead to different amounts payable to an employee under the scheme.
The appeal was allowed, with two of the three justices favouring Qantas’ construction of the provision. It was held that s.789GDA(2)(b), ‘the amounts payable to the employee in relation to the performance of work during the fortnight’, refers to monies required to be paid to the employee under the applicable contract or industrial instrument, in line with s.323. The phrase ‘during the fortnight’ is a separate qualifying phrase intended to make clear that the payment obligation relates to the JobKeeper fortnight and does not refer to amounts earned during the fortnight.
On 13 January 2021 several unions announced they are seeking to appeal the decision in the High Court.
Dismissal matters
Unfair dismissal matters
Acal v JBS Australia Pty Ltd
Background
The applicant in this application for unfair dismissal was employed as a maintenance fitter. He was dismissed for serious misconduct and breaching the terms and conditions of his employment by walking off the job and thereby abandoning his employment. The applicant argued that he left work due to an injury to his finger that had been subject to a workers' compensation claim and informed a number of respondent managers prior to leaving the worksite that he needed to see a doctor.
Outcome
The Commission did not accept that the applicant abandoned his employment by walking off the job, noting that 'abandonment of employment occurs when an employee walks off the job or fails to attend after a period of absence, in such a way that the employer is reasonably entitled to conclude that the employee no longer intends to be bound by his or her contract of employment'. The Commission found that in context and in light of all of the relevant circumstances, the respondent had no reasonable basis for concluding that the applicant abandoned his employment. Witnesses for the respondent confirmed that the applicant's injured finger was visibly swollen, and medical certificates from the applicant's visit to doctor confirmed that he was completely incapacitated for work before he left the workplace.
The Commission further noted that the respondent's managers persisted with the view that the applicant had abandoned his employment in circumstances where they knew, or should have known, that he was totally incapacitated for work and had submitted medical evidence to establish this. The Commission found that the conduct of the applicant was inconsistent with abandonment. The respondent maintaining that the applicant had abandoned his employment was not a conclusion that was valid, sound or defensible. However the Commission also noted that the applicant's evidence that he did not understand that he was being directed to remain at work for the discussion was not convincing, it should have been apparent to the applicant that he was defying a direction to remain at work and have a discussion about his injury.
The Commission was satisfied that the applicant's dismissal was harsh, unjust and unreasonable. Whilst considering remedy the Commission noted that the applicant showed no insight into his conduct that contributed to the dismissal. The applicant's evidence that he was seeking reinstatement did not convince the Commission that the relationship with the respondent could be re-established, and that the applicant would make any effort in this regard. The Commission ordered compensation in the sum of $29,778.00 taxed according to law, plus $2,828.91 in superannuation contributions.
Read decision [2020] FWC 5554.
Massaga v Activ Foundation Inc
Background
The applicant in this unfair dismissal matter was employed as an overnight support worker at a care facility for women with intellectual disabilities. The applicant had raised an issue regarding a co-worker's (Ms Antoinette) handling of a client's diet plan. The client's dietician emailed Ms Antoinette on 3 November 2019 with concern which the applicant then forwarded to the employer’s senior complaints officer. On 4 November Ms Antoinette responded to the dietician’s 3 November email with clarification. The facility team leader investigating the applicant's complaint was unable to find the emails of 4 November in the employer’s common inbox. The team leader subsequently discovered that applicant forwarded the email chain of 4 November and the client's food diary to her personal email address before deleting these emails from her deleted items folder. When the applicant was requested by the employer to provide documentation relevant to her complaint, she provided the emails of 3 November but not those of 4 November. The applicant was stood down for forwarding confidential information to her private email and concealing the emails of 4 November. The applicant did not attend subsequent disciplinary or show cause meetings and submitted she was unaware of policies and codes of conduct regarding treatment of confidential information.
Outcome
The Commission was satisfied that the applicant was aware of respondent's IT policies and confidentiality obligations. The Commission considered that the applicant's deletion of the emails of 4 November was deliberate conduct contrary to a lawful instruction to provide information. The Commission was also satisfied that the respondent provided the applicant sufficient time to respond to the allegations prior to her termination. The Commission found that there was a valid reason for dismissal and that the dismissal was not harsh, unjust, or unreasonable. The application was dismissed.
Read decision [2020] FWC 4087.
Slamowicz v Alfred Health
Background
The applicant who made this unfair dismissal application was employed as a hospital data manager at Alfred Health. The applicant refused to perform data entry work which was a task specified in his position description. Following a meeting held with the applicant, the director of human resources and the director of general surgery, the applicant was formally directed to perform data entry work.
The applicant tendered his resignation subject to a condition that he first be allowed to take his accrued leave. The applicant wished for his resignation to take effect from 1 June but with the date adjusted for his annual and long service leave which may take the date up to December. The respondent explained that it could not accommodate this request and that termination would be effective from 1 July 2020, whereupon he would receive a payment of his termination entitlements. The applicant submitted that he offered to resign on the condition that he take all his accrued annual and long service leave, from 1 June 2020, so that his employment would not end until late 2020 or early 2021. The applicant further submitted that he did not agree with the resignation date of 1 July 2020 and that by insisting upon a termination date of 1 July 2020, the hospital terminated his employment. The applicant further argued that his dismissal was unfair as there was no valid reason.
The respondent submitted that it accepted the resignation, despite the fact that the applicant extended his notice period to 1 July 2020 so that he could receive more favourable tax treatment. The respondent further submitted this change did not affect the essential character of his resignation. The respondent argued in the alternative that the Commission should determine that the dismissal was not unfair, because the applicant had chosen to resign rather than perform all the duties of his position as required.
Outcome
The Commission found that it was clear from the email correspondence that the applicant was proposing that from 1 June 2020, he would take all his leave, and that his resignation would be effective on the date his leave expired. The Commission further noted the respondent processed the termination of the applicant's employment with effect from 1 July 2020 which was clearly against the applicant's wishes. The Commission found that the applicant was dismissed for the purpose of s.386(1)(a) of the Fair Work Act.
The Commission then considered whether dismissal was unfair. The Commission found there was no valid reason for dismissal. The applicant was not notified of the reason for his dismissal or given any opportunity to respond. The Commission found that the dismissal by the respondent was unreasonable, and therefore unfair.
The Commission considered what if any remedy should be awarded. The Commission noted that the applicant resigned rather than agree to comply with the direction of the hospital that he undertake the data entry component of his role as data entry manager. The Commission considered that if the applicant was reinstated, the requirement that he undertake all relevant data entry would likely remain a bone of contention between the parties. The Commission found that there was no basis for legitimate dispute because an employee must simply perform all the duties of his or her position. The Commission also noted that the applicant had made it very clear that if he was reinstated, he wished to take a substantial amount of leave, and proposed that he be treated as having been on leave between the end of his employment and his reinstatement. The Commission noted the applicant's 'particular expectations about the modalities of taking and being paid for leave upon his reinstatement, some of which appear to be unworkable, tells against a conclusion that reinstatement is appropriate, because it begs the question as to what will occur if, as seems likely, the hospital rejects some or all' of the applicant's proposals. The Commission considered it inappropriate to reinstate applicant and that compensation was appropriate. The Commission must consider the 'remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed' as per s.369(2)(c). The Commission's best estimate was had the applicant not been dismissed that he would have remained employed for a period of nine weeks beyond the date on which his employment with the respondent ended. The Commission ordered compensation in the sum of $6,919.45, with deduction of taxation as required by law.
Read decision [2020] FWC 5720.
Lucisano v Fictiv Pty Ltd
Background
The applicant in this unfair dismissal matter was employed in March 2019 as a studio manager by the respondent, a company that develops websites for clients. The respondent acquired a client as a result of the applicant's friendship with an employee of the client, Ms Pearson. Ms Pearson asked the applicant for an update on work progress via email in June 2020. The applicant responded to the client via Facebook messenger stating that she was 'angry and embarrassed' about the lack of progress on the project. Ms Pearson told the applicant that 'as a friend' that she was concerned that the project was taking too long. The client and the applicant continued to converse about the project in a disparaging way via Facebook messenger. In these conversations, the applicant said that the respondent was 'full of it', 'such a liar' and a 'disgrace' and advised the client to 'look at whether this is a breach of contract'.
When the applicant was on sick leave, the respondent logged on to the applicant's work computer to ensure clients were being serviced in her absence and saw the Facebook messages between the applicant and the client displayed. The applicant was then dismissed for disclosing confidential information, tarnishing the reputation of the director and risking the reputation of the business.
The applicant submitted the dismissal was 'capricious and spiteful' and that there was no disclosure of confidential information. The applicant further submitted that the reputational damage was a result of the respondent’s conduct and concerned only one client whom she had brought to the business. The applicant submitted that her conduct was merely 'negligent, clumsy and inappropriate' which warranted a warning, but not dismissal.
Outcome
The Commission found that the misconduct was 'sufficiently grave' and that the respondent believed on reasonable grounds that it justified immediate dismissal. The Commission found that dismissal was therefore consistent with first ground of the Small Business Fair Dismissal Code and consequently could not have been unfair. The Commission also found that the applicant breached her duty of good faith and fidelity, however found that the lack of breach of confidentiality was inconsequential. The Commission held that there was a valid reason for dismissal and that summary dismissal was a proportionate response. The application was dismissed.
Read decision [2020] FWC 6045.
Willis v One Fine Collective (Aust) Pty Ltd
Background
In this unfair dismissal matter the applicant was employed as a full-time Nanny. Her role primarily required her to look after the children of the owners of the respondent. The respondent is an events company which runs large-scale events such as Wedding Fairs, Baby Expos and Bridal Markets. The Covid-19 pandemic and the associated restrictions had a dramatic impact on the respondent’s business. Various events that the respondent had organised had to be cancelled. The respondent implemented a number of measures to reduce staff costs. One staff member was made redundant, and other employees had their working hours reduced by 50 per cent. The applicant was advised that because of the financial impacts of the Covid-19 restrictions she would be immediately stood down from her employment without pay. The respondent and the applicant qualified for JobKeeper support payments.
The respondent sent an email to the applicant requesting that she return to work on reduced hours for the four days a week that she had previously worked. The applicant spoke to the respondent regarding the days and times for her reduced hours of work as she needed to find secondary employment as a result of the reduction in working hours. The applicant indicated that having to work for the employer on four days a week impeded her prospects of securing secondary employment. The applicant advised the respondent that she had been interviewed for a job that involved work on Mondays. The respondent explained that whilst they were supportive of the applicant finding secondary employment, they required her to work on Monday to Wednesdays, which were stipulated to be critical days that the respondent required the applicant to work. The applicant wanted to work for the respondent only on Wednesdays and Thursdays. The applicant sent an email to the respondent which advised that she had been accepted for secondary employment on Mondays and Tuesdays and that this left 'Wednesdays and Thursdays available to do hours for you'. The respondent replied advising that '…in circumstances where you deliberately do not comply with our directions, we have no choice but to terminate your employment with us immediately. We will pay out your notice and any other entitlements you are owed'.
Outcome
The Commission found that the applicant had acted in direct contradiction of the reasonable and lawful instruction of the employer whereby she was required not to engage in secondary employment that would prevent her from working for the employer on the days of the week which it considered as critical. The Commission held that the actions of the applicant represented misconduct that was plainly contrary to any continuation of the employment relationship. The Commission found that it appeared that the JobKeeper arrangements had the effect of devaluing the applicant's contemplation of her existing employment and providing some mistaken authority or permission to act with immunity from obligation to the employer to perform work in accordance with its reasonable requirements. The applicant was dismissed in response to her actions in engaging in secondary employment contrary to the clear instructions of the employer. The Commission held that there was a valid reason for the dismissal of the applicant and that the dismissal not harsh, unjust or unreasonable and accordingly, not unfair. The application was dismissed.
Read decision [2020] FWC 6418.
Fisher v Cabra-Vale Ex-Active Servicemen’s Club Ltd trading as Campbelltown RSL
Background
The applicant in this matter worked as a Food, Beverage and Gaming Attendant. She was dismissed for misconduct. The applicant was asked to cover her nose ring and remove some ear studs by her supervisor. The respondent’s Operations Manager also witnessed the applicant using her mobile phone from the security cameras in his office while she was working in the poker machine cash booth. The applicant was directed to attend a meeting by the Operations Manager who did not provide the applicant a precise reason for the meeting but simply said that it involved her work performance. The applicant refused to attend the meeting.
The United Workers Union (UWU), of which the applicant is a member, is currently undertaking a campaign in the hospitality industry. One of the elements of the campaign is for members to ask for any allegations to be provided in writing before attending any meeting with an employer. An official of the UWU happened to be in the lunchroom of the respondent and the applicant was given permission to seek advice from the official. When the applicant did not arrive at the meeting, the Operations Manager then approached the applicant in the lunchroom and once again requested that she attend a meeting upstairs advising it was not a disciplinary meeting. The union official advised the Operations Manager that the applicant was not obliged to attend this meeting unless the respondent advised the applicant of the reasons for the meeting in writing. When the applicant refused to attend the meeting for a final time, she was stood down immediately for failing to follow a lawful direction.
After a show cause meeting to discuss the applicant’s refusal to attend the meeting, the applicant continued to assert that the respondent must provide her with any allegations in writing before she would attend a meeting. The respondent terminated the applicant for her failure to comply with a 'reasonable and lawful direction to attend a meeting' with her manager.
Outcome
In considering the matter, the Commission took into account that the applicant was issued with a verbal warning for allegedly not following a corporate policy when undertaking a shift swap with a similarly trained and graded employee. The applicant was required by the respondent to agree with the Operations Manager that she was an unreliable employee on the basis of this shift swap. The Commission considered, without going into the details of the situation, that 'this was one of the worst cases of management bullying that I have ever seen' and suggested that the respondent consider whether the Operations Manager should undertake some additional training in relation to his management practices because this verbal warning was 'clearly inappropriate'.
The Commission also took into account that the applicant appeared to have repeatedly and knowingly breached the respondent’s policies in relation to her nose ring, the number of earrings in each ear and the use of her mobile phone at work. The Commission found that whilst the UWU has embarked on a campaign to educate members on their rights in relation to attending meetings with management, unfortunately for the applicant, the UWU distributed information to its members and gave instructions to its officials which is just plainly wrong. The Commission said that to state that an employer does not have the right to discuss any issues with their staff without putting the reason for the meeting in writing cuts across the basic premise of managerial prerogative. The Commission found that this misinformation displayed by the UWU and expressed by the union official resulted in the applicant losing her job. The Commission said that the advice that a union official gives will be relied upon by its members and that no union is infallible, but the leadership of the UWU had an obligation to ensure that the information contained in their campaign propaganda was legal and accurate.
The Commission was satisfied that the respondent had a valid reason to terminate the applicant on the basis that she refused to comply with a reasonable direction. The Commission however was not comfortable with the applicant being required to carry the burden of her dismissal throughout the rest of her employment career, based on the poor advice that was provided to her by the UWU and that the fact that the UWU gave her poor advice was not her fault. The Commission held that if representative error can be used by an applicant to overcome the statutory time limit of an unfair dismissal application then common sense would allow an applicant to use the same ground to mitigate their conduct which created the valid reason for their termination.
The Commission found that the termination of the applicant by following the advice of the UWU was unreasonable and that the respondent should have notified a dispute to the Commission in relation to the UWU’s campaign. Further, the termination of an employee residing in south west Sydney during COVID-19, emanating from a trivial issue such as non-compliance with a clothing policy, with the unlikelihood of gaining alternative employment rendered the termination harsh. The Commission held that the dismissal was unfair. The applicant did not seek reinstatement. The Commission held that it would be contrary to s.381 of the Fair Work Act and the principle of a ‘fair go all-round’ for the respondent to be required to pay compensation due to the representative error of the UWU. No compensation was ordered be paid to the applicant.
Read decision [2020] FWC 5703.
Nethery v DMD (Tas) Pty Ltd as trustee for DMD Unit Trust
Background
This unfair dismissal matter was listed for a mention/directions conference to occur by teleconference on 19 June 2020, and for hearing on 29 and 30 June and 1 July of 2020. At the request of the applicant settlement discussions occurred during the conference on 19 June. During this private conference the parties advised the Commission that they agreed to terms with which to settle the matter, although the applicant challenged this in some respect. The Commission then cancelled the hearings listed. The parties never signed agreed terms of settlement.
On 19 June a Deed of Settlement was sent to the applicant's representative which recorded the settlement agreement that had been reached during the private conference. On 24 June the representative emailed Chambers and made several comments about the alleged agreement and sought to have the matter remain live within the Commission. They sought to have the matter relisted at a time where the applicant was medically fit to participate.
On 25 June the respondent's representative contacted Chambers in response to the email of 24 June stating that the respondent would be seeking to have the applicant’s unfair dismissal claim dismissed pursuant to s.587 of the Fair Work Act on the basis of settlement being reached in the Commission on 19 June 2020 during the private conference convened at the conclusion of the Mention/Directions conference.
Outcome
The Commission considered the decision in Masters v Cameron. The Commission found that a binding settlement agreement was reached. Notwithstanding this agreement the applicant continued to pursue his application, or refused to discontinue it as agreed, and wished to have the opportunity to further pursue the claim. The applicant failed to discontinue a settled claim as agreed. The Commission issued an order dismissing the application. It found that the continuation of the application in this matter by the applicant was frivolous, vexatious and had no reasonable prospects of success. The application for unfair dismissal was dismissed.
Read decision [2020] FWC 7013.
Bartley and Others v Helensburgh Coal Pty Ltd
Background
This matter relates to 24 linked applications for unfair dismissal. The applicants worked at the respondent’s Metropolitan Coal Mine (the Mine) located in the Illawarra region of New South Wales. The parties agreed for the applications to be heard together on the basis that the facts and decision-making process was largely common to all the applicants.
The respondent objected to the applications on jurisdictional grounds, stating that each of the terminations were genuine redundancies. The respondent extracts coking coal at the Mine. Coking coal is used to make steel and the COVID-19 pandemic has negatively impacted the demand and price of coking coal, as a result the respondent determined to decrease its level of production and its workforce at the Mine. After a period of employee consultation, the respondent determined that 90 of its directly employed staff would be made redundant. Of these 90 employees 47 individuals, including the applicants, were subject to a forced redundancy. The respondent's contractor workforce would also be reduced by 40 per cent.
Outcome
The Commission found the primary issue for determination was whether the respondent had an obligation to redeploy the applicants into roles that were being performed by contractors. The Commission was satisfied and found that the respondent consulted with the applicants and the CFMMEU. Consultation does not require agreement between the parties in order to satisfy the obligation. The Commission was not satisfied that the work being performed by contractors was specialist work. Further, the Commission was satisfied that it would have been reasonable for the respondent to insource some, if not all, of the work being undertaken by contractors and redeploy its dismissed employees into these roles. As a result, the applicants’ termination does not satisfy s.389(2)(a) of the Fair Work Act. The respondent's jurisdictional objection was dismissed. A Directions Conference will be convened in the immediate future to program the substantive application.
Bargaining & agreement making matters
Enterprise agreement matters
Appeal by Construction, Forestry, Maritime, Mining and Energy Union and Others against decision [[2020] FWCA 2696] Re: The Trustee for Celotti Australia Discretionary Trust trading as Celotti Workforce
Background
This matter relates to an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Unions) against the decision at first instance to approve the Celotti Workforce Enterprise Agreement 2020. The respondent (Celotti) is a labour hire company. The agreement covers Celotti employees who are on-hired to perform work for its clients nationally that would otherwise be covered by one of 12 awards incorporated into the agreement. The appeal was advanced on four bases including that the agreement was not genuinely agreed to by the relevant employees as there was a disjunct between the work performed by employees and the 12 incorporated awards. The Unions further submitted that Celotti did not take all reasonable steps to explain the terms of the agreement and its effects to relevant employees.
Outcome
Section 180(5) of the Fair Work Act requires an employer to take all reasonable steps to ensure the terms of an agreement and the effect of those terms are explained to relevant employees in an appropriate manner, taking into account the particular circumstances and needs of those employees. The Full Bench found the explanatory document provided by Celotti to relevant employees identified the coverage of the agreement as applying to all on-hire employees that would otherwise be covered by the 12 awards, however the differences were not explained against each of the 12 awards. The Full Bench held further concerns regarding inaccuracies in the explanatory document and explanation of casual conversion.
The Full Bench considered that employees may not have had a reasonable understanding of how the conditions of their employment might be affected by an enterprise agreement, finding that ‘unless employees independently sought clarification, provision of the access pack was the only step taken by Celotti to explain the Agreement terms. In this context, Celotti did not have regard to the particular circumstances of its employees given its generalised approach’. The Full Bench found the Commission’s reliance at first instance upon Celotti’s contention that employees had the opportunity to seek further clarification was misplaced. An invitation to relevant employees to ask questions of management does not cure an otherwise deficient explanation. The Full Bench found that the Commission could not have been satisfied that the agreement had been genuinely agreed to by the relevant employees within the meaning of s.188(1)(a)(i) and could not be satisfied that the approval requirement in s.186(2)(a) had been met.
The Unions further contended that the agreement was not genuinely agreed to because there could not be satisfaction as to s.188(1)(c). The Unions argued that the voting cohort did not have any knowledge or connection with the work performed under many of the 12 awards, incorporated by clause 5(a) of the agreement, and further argued that a reasonable ground for believing that the agreement had not been genuinely agreed to was due to the agreement’s extraordinarily wide scope. The agreement was said to capture a broad range of industries and occupations some of which are highly specialised, and therefore ‘the voting cohort did not have any knowledge or connection with the work performed under many of the Awards’. The Full Bench considered KCL and One Key. The authenticity of an enterprise agreement is assessed by reference to the work performed by relevant employees proposed to be covered by its terms as against the scope of the agreement. The Full Bench noted where there is a disjunct between the characteristics of the workforce and the agreement scope, such that relevant employees have no stake in respect of certain terms including rates of pay and industry specific entitlements, then it follows that employees could not have given informed consent regarding matters unrelated to their employment. Where this occurs, there are reasonable grounds for believing that the agreement has not been genuinely agreed to.
The Unions contended that there was no material before the Commission at first instance supporting Celotti’s position that it has one employee engaged as a plumber covered by the Plumbing and Fire Sprinklers Award 2010. The Unions argued that Celotti’s contention was inconsistent with the employee’s contracts of employment and payslips. The Full Bench accepted there was no material before the Commission that addressed the characteristics of the employee’s role, such that an assessment could be made in respect of occupational coverage under the award. The Full Bench further acknowledged that Celotti’s contention was at odds with the employment contracts which nominate the Manufacturing Award 2010 as applying to the work performed by the relevant employee. The Full Bench found the contention that the employee was covered by the Plumbing Award could not be sustained. The Full Bench found the material before the Commission was insufficient to conclude that Celotti engaged at least one employee to perform work within the scope of each of the 12 awards. Further found that the Commission did not apply itself to the question raised by s.188(c) and erred by doing so.
The Full Bench considered it was in the public interest to grant permission to appeal. Permission to appeal granted and the decision at first instance was quashed. The application was remitted to Millhouse DP for redetermination.
Read decision [2020] FWCFB 5011.
Appeal by Construction, Forestry, Maritime, Mining and Energy Union and Others against decisions [[2019] FWCA 8595 and [2019] FWCA 8601] Re: OS ACPM Pty Ltd and OS MCAP Pty Ltd
Background
There was an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Workers' Union (AWU), "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Unions) against the decisions at first instance to approve the Services Production Agreement 2018 and the Operations Services Maintenance Agreement 2018.
In its decision on 8 May 2020 [[2020] FWCFB 2434] (the first decision), the Full Bench upheld appeals by the Unions, quashed the Commission's decisions and decided to redetermine the applications for approval of agreements by OS MCAP and OS ACPM (the respondents).
Outcome
The Full Bench majority expressed concerns about the approval requirements and directed the respondents to file a written response to its concerns. A decision issued on 13 July 2020 [[2020] FWCFB 3669] (the second decision) dealt with the respondents' submissions. The Full Bench majority found the undertakings offered by the respondents substantially met some concerns however did not address the requirement for genuine agreement in s.186(2)(2). An opportunity was given and accepted by the respondents to address these concerns at a further oral hearing. The further hearing was conducted on 31 July 2020, the parties were permitted to file further written submission as the respondents had not addressed the issues. A further hearing was conducted on 11 September 2020. The Full Bench majority identified five issues to be addressed:
- the alternative roster/hours concern
- the part-time rates concern
- the part-time hours concern
- the causal rates concern, and
- the genuinely agreed issue.
In the first decision the Full Bench majority found the explanation given in relation to salary rates applicable when alternative rosters are worked merely repeated the text of the agreement provision, and left unknowable what a person's remuneration would be. The respondents offered an amended undertaking to address the alternative roster/hours concern. The Full Bench majority did not consider the undertaking proposed met the alterative roster/hours concern.
In the first decision the Full Bench majority also expressed concern that the agreements did not explain the effect of clause 5.2 of the agreements on hourly rate remuneration for part-time employees or how to calculate remuneration. In the second decision the Full Bench majority found that proposed undertakings to address the BOOT concern would not meet concerns in respect of part-time employees. The respondent submitted modified undertakings. The Full Bench majority also found that the new proposed undertakings did not address the part-time rates concerns, and did not answer the failure of the respondents to enable the relevant employees to cast a informed vote, and to enable an understanding of how wages and work conditions might be affected by voting in favour of the agreements.
In the first decision the Full Bench majority identified concerns in respect to their being no explanation of the effect of clause 9.4 of the agreements on how hours of employment for part-time employees are to be determined, and interaction with Mining Industry Award 2010 and Black Coal Mining Industry Award 2010. The respondents proposed undertakings which the Full Bench majority found in the second decision addressed some but not all concerns identified. The respondents submitted that the undertakings proffered remedied any failure to explain the awards, and that part-time employees were not disadvantaged by any failure to explain the relevant provisions. The Full Bench majority found that the undertakings addressed its concerns in part, but because its concerns had not been wholly addressed by undertaking the agreements could not be approved based on that undertaking.
In the first decision the Full Bench majority also found that the respondents did not explain clause 5.3 of agreements beyond repeating or rephrasing text, and there was no explanation given in order to identify what casual hourly rates were. The respondents submitted that the undertakings proposed in respect to the alternative rosters/hours concern would also address the casual rates concern. The Full Bench majority found this proposed undertaking did not meet concerns about the failure to explain casual remuneration and address the issue that employees called upon to vote on agreements did not do so on an informed basis. The undertaking did not meet the casual rate concern. The Full Bench majority found it was unnecessary to deal with the genuine agreed issue because the agreements were incapable of approval. The Full Bench majority were not satisfied as per s.186(2)(a) that the agreements were genuinely agreed to by the employees covered by the agreements. The Full Bench majority held that the undertakings proposed by the respondents did not meet its concerns and dismissed the applications for approval of the agreements.
The Full Bench minority dissented in the second decision. Suggested that subject to undertakings it would have approved the agreements. The Full Bench minority identified four issued to be addressed:
- a new rosters BOOT concern
- a part-time employees BOOT concern
- a NES concern, and
- an explanation concern.
The Full Bench minority found that the respondents' proposed undertakings addressed all of its concerns. The Full Bench minority rejected the Unions contention that there were other reasonable grounds for believing the agreements were not genuinely agreed to by employees. Subject to the proposed undertakings the Full Bench minority would have approved the agreements.
Dispute resolution matters
Burleigh Marr Distributions Pty Ltd trading as Bidfood Gold Coast v Carroll
Background
This matter relates to an application by Bidfood to deal with an alleged dispute arising out of the refusal by one of its employees, Mr Carroll, to work particular hours of overtime which Bidfood submitted were reasonable additional hours of work. Mr Carroll is a full-time delivery driver working 38 ordinary hours per week under the Bidfood Brisbane & Regional Sites – Enterprise Agreement 2019. The Agreement contains an overtime clause detailing penalty rates when overtime is performed on certain days of the week.
The dispute between the parties is not about a matter arising under the Agreement, but rather, in relation to the National Employment Standards. Section 62 of the Fair Work Act deals with maximum weekly hours worked by employees. The dispute between the parties is whether the additional hours of work beyond 38 hours that Bidfood wishes for Mr Carroll to perform on a daily, weekly or regular basis are reasonable.
Bidfood is a wholesaler of food (including fresh, packaged, chilled and frozen food, seafood, meat), alcohol and hospitality supplies to the foodservice industry. This is a highly competitive industry which relies on the delivery promises of next day delivery prior to a defined cut-off point, and delivery windows to the customer to keep and retain business. The overtime work that Mr Carroll was refusing to perform is not able to be reallocated until the next day, and as much of the product requires refrigeration it is not practical for the product to remain in the back of a truck overnight.
Bidfood submitted that there exists no risk to Mr Carroll's health and safety from working the additional hours Bidfood requests of him. It submitted that the overtime hours that Mr Carroll is refusing to work fall well within the allowable driving hours pursuant to the Heavy Vehicle (Fatigue Management) National Regulation legislation on driver fatigue.
Outcome
The Commission found that Mr Carroll was not being asked, particularly Monday to Wednesday in a typical week, to work excessive hours. He is simply being asked to complete either one large delivery route, or the second of two smaller delivery routes. The Commission accepted that every effort is made by Bidfood to have Mr Carroll return to the depot as close to his usual finishing time as possible, however with a small number of drops still on board, Mr Carroll's insistence at returning to the depot was bewildering and unreasonable. The Commission was satisfied that the request by Bidfood for Mr Carroll to work overtime hours beyond his ordinary hours of work was reasonable, and the hours that could be worked, if so requested, are reasonable. The Commission held that Mr Carroll is not able to rely on s.62(2) to refuse to work the additional hours as they are not unreasonable.
Procedural matters
Freeman v Team Dreegan Pty Ltd trading as Team Dreegan
Background
In this application for relief from unfair dismissal the respondent contended that the Commission did not have jurisdiction in relation to the applicant's claim as he was not covered by a modern award or an enterprise agreement and the sum of his annual rate of earnings was more than the high income threshold. The applicant submitted that his employment was covered by an enterprise agreement known as the Team Dreegan P/L Employee Collective Agreement 2014. The applicant accepted that no such enterprise agreement has been approved by the Commission.
Outcome
The Commission considered whether the agreement applied to the applicant in relation to his employment with the respondent at the time of his dismissal. Records associated with Work Choices era collective agreements are held by the Fair Work Ombudsman (FWO). On request by the Commission, the FWO provided to the Commission documentation which stated that the employee collective agreement named the Team Dreegan P/L Employee Collective Agreement 2008 passed the no disadvantage test and that it would start operating on the seventh day after the date of the issue of the notice, that was on 4 December 2008. The FWO nor the Commission have any record of a variation to or termination of the Agreement.
The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) regulates certain agreements made prior to the introduction of the Fair Work Act. The Commission noted that for the agreement to apply to the applicant it must be satisfied that:
- the agreement is a 'collective agreement'
- the agreement was in operation immediately before 30 June 2009
- no enterprise agreement or workplace determination (under the Fair Work Act) started to apply to applicant during his employment with the respondent, and
- the applicant's employment was subject to the agreement.
The Commission noted the 'principal purpose test' in Carpenter and Broadspectrum and was satisfied the agreement was a 'collective agreement' which was in operation immediately before the Workplace Relations Act 1996 (Cth) repeal day and is therefore a 'transitional instrument'.
There was no evidence or suggestion that the agreement has been terminated or otherwise ceased to operate. The Commission was satisfied that the agreement continues to operate in accordance with the Transitional Act and is an enterprise agreement for the purposes of s.382(b)(ii) of the Fair Work Act. If the agreement 'applied' to the applicant at the time of his dismissal, he will meet the requirement in s.382(b)(ii). The Commission further noted that pursuant to the Transitional Act, the Agreement 'covers' and 'applies' to the respondent and 'all persons whose employment is, at any time when the agreement is in operation, subject to the agreement'.
To determine whether the applicant's employment was subject to the agreement the Commission must construe clause 5 of the agreement (in context) and apply it to the applicant's employment. The principal purpose of the applicant's role with the respondent was to supervise, at site, employees undertaking a range of civil work. Clause 5.2 of the agreement deals with its scope and states the agreement 'will apply to all on site building related employees of the Company'. The Commission noted in one view this application may be broad enough to include the applicant. However, the Commission noted that clause 5 must be construed in context with the other provisions in the agreement. Part of that context includes that the agreement does not contain rates of pay other than for the classifications of carpenter, carpenter's labourer, and apprentices. The agreement also does not specify a rate of pay for a supervisor, team leader or the applicant's position of Civil Supervisor. The Commission found also of contextual relevance was the fact that various provisions of the agreement direct an employee to bring matters to the attention of their supervisor or team leader. There are no provisions of the agreement which expressly confer on a supervisor any benefits or entitlements.
The Commission was of the view that if a reasonable person considered the agreement as a whole, and construed clause 5.2 in context with the other provisions of the agreement, they would come to the conclusion that the applicant's employment was not subject to or covered by the agreement. Construed in context, the expression 'building related employees' in clause 5.2 includes employees who undertake building work, such as carpenters, carpenter's labourers, and apprentices, but does not extend to supervisors whose principal purpose is to supervise workers undertaking civil work. The Commission held that the agreement did not apply to the applicant at the time of his dismissal and as such the applicant was not protected from unfair dismissal within the meaning of s.382(b) of the Fair Work Act. The application was dismissed.
Award modernisation – 4 yearly review
Commission publishes 6 years of modern awards data
The Commission has published the full data set of the Modern Awards Pay Database (MAP).
The database contains a comprehensive record of the dollar values for the minimum rates of pay, allowances and penalty rates in 121 modern awards and 34 modern enterprise awards and state reference public sector modern awards.
The primary purpose of the MAP is to enable the Commission to update modern awards efficiently and accurately following each year’s Annual Wage Review decision.
The data are being made freely accessible to give researchers, payroll companies, other government agencies, unions, employer associations and other interested parties the opportunity to explore other potential uses for this material.
Find out more:
Modern awards extensively varied
The Commission is extensively varying existing awards as a result of the 4 yearly review of modern awards.
The technical and drafting matters for a number of awards have been completed. Awards that have been varied can be identified in the Modern Awards list by the year 2020 in their title.
The next group of varied awards will come into operation on 1 February 2021 and 1 March 2021. To access the new versions of the awards before they come into operation, access the Modern Awards list and click on the link in the Future Awards column in the table.
Overtime for casuals
Background
On 8 October 2019 the Full Bench published a decision [[2019] FWCFB 6953] (the October decision) which dealt with the overtime provisions applicable to casual employees in 13 awards. On 18 August 2020 it published a further decision [[2020] FWCFB 4350] (the August decision) concerning such provisions in a further 96 modern awards.
On 18 August 2020, draft determinations were also published for variations to 97 of the awards dealt with in the October and August decisions. Interested parties were given the opportunity to make submissions in response to the provisional views expressed in the October and August decisions and in response to the terms of the draft determinations.
Outcome
This decision finalised the matters outstanding from the October decision and the August decision.
The Full Bench stated that the awards the subject of a draft determinations published on 18 August 2020 would be varied in the terms of the applicable draft determination, subject to any modifications determined in this decision. It concluded that such variations would take effect on 20 November 2020 (except in relation to the Aged Care Award 2010, where the variation will take effect on 1 March 2021).
The Full Bench also noted that the insertion of overtime rates tables for casual employees into the awards which contain hourly rates of pay schedules will be dealt with in due course.
Read decision [2020] FWCFB 5636.
Award stage – General Retail Industry Award 2020
Background
The General Retail Industry Award 2020 (the Retail Award) came into operation on 1 October 2020.
This decision dealt with an outstanding claim made by the Shop, Distributive and Allied Employees Association (SDA) to vary clause 17.2 of the Retail Award to limit the application of junior rates. The Retail Award currently applies junior percentages to all 8 classification levels. The proposed variation sought to confine the payment of junior rates to level 1 employees only; with the consequence that employees engaged at higher levels would be paid the full adult rate. Level 1 is the general shop assistant classification.
Outcome
The Full Bench rejected the SDA’s contention that the Award Modernisation Full Bench erred in applying junior rates to all classifications because the relevant Victorian, NSW and ACT pre-reform awards did not provide for junior rates above level one.
The Full Bench also noted that it must be satisfied that such a variation is justified by work value reasons and determined that the SDA has failed to establish a sufficiently cogent case to warrant the variation it sought.
However, the Full Bench stated that the application of junior rates to level 4 classification employees gives rise to an anomaly in that, depending on their age and service with their employer, a 20 year old tradesperson may only receive 90 per cent of the level 4 minimum rate. The Full Bench stated that the tradespersons rate (level 4 in the Retail Award) should align with the C10 rate in the Manufacturing and Associated Industries and Occupations Award 2020; but that is not presently the case for junior employees under the Retail Award. The Full Bench stated that the minimum wage rate for a tradesperson should be set consistently across the modern award system but that this is not the case in the Retail Award because of the application of junior rates to level 4 employees.
The Full Bench went on to say that the classification definitions associated with classification levels 5, 6, 7 and 8 all envisage the performance of work at a higher level than that performed by a level 4 employee and, accordingly, if junior rates are not applicable to level 4 employees it makes no sense to apply them to higher classification levels.
To rectify the anomaly, the Full Bench proposed to vary clause 18.2 of the Retail Award to provide that junior rates only apply to classification levels 1, 2 and 3 and to amend a number of the hourly rates of pay schedules in Schedule B. The Full Bench stated that it was satisfied that this variation was justified by work value reasons, in particular the level of skill involved in doing the work when compared to equivalent classification levels in other modern awards.
After taking into account the considerations in s.134 of the Fair Work Act it determined to vary the Retail Award in the manner it proposed.
In a later decision of 4 December 2020 [[2020] FWCFB 6445] the Full Bench decided that the variation will operate from 1 May 2021.
Read decision [2020] FWCFB 6301.
Award stage – Children’s Services Award 2010 & Educational Services (Teachers) Award 2020
Background
The Full Bench has issued various decisions dealing with substantive claims to vary the Children’s Services Award 2010 and the Educational Services Teachers Award 2020 as part of the 4 yearly review. Most recently, the Full Bench issued a decision [[2020] FWCFB 5176] that dealt with the following outstanding substantive claims to vary the awards:
- part-time employment (means of communicating ad hoc agreed changes)
- educational leaders (additional 2 hours non-contact time per week)
- minimum engagement, and
- coverage.
In a Statement issued on 13 October 2020 [[2020] FWCFB 5459] the Full Bench summarised various submissions received from parties and expressed a range of provisional views. The outstanding matters were subject of a conference and hearing on 16 October 2020.
Outcome
In relation to part-time employment, Community Connections Solutions Australia (CCSA) and the Australian Childcare Alliance Employers (ECEC Employers) agreed with the draft variation determination to the Children’s Award. The United Workers Union (UWU) did not oppose the wording. The Australian Federation of Employers and Industry (AFEI) opposed the obligation to make overtime payment in the circumstances set out in new clause 21.7(b)(iv) for a number of reasons. After a general consensus was reached during the hearing, the Full Bench determined to vary clauses 10.4(d) and 27.7(b)(iv) as agreed by the parties.
In relation to Educational Leaders, the draft variation determination incorporated the UWU’s proposed rewording of clause 21.5, and the provision of an additional 2 hours non-contact time. The CCSA made submissions with concerns as to the drafting and interpretation of the provision. The Full Bench amended the draft determination to address the concerns and confirmed its provisional view to varying the Children’s Award in the manner proposed by CCSA.
In relation to minimum engagement, the provisional view was that clause 14.5 of the Teachers Award be varied to provide casual employees are paid the appropriate minimum classification rate plus a 25 percent casual loading for all time worked; and the provision of minimum engagement periods, consistent with the current award term. The Full Bench expressed a view that early childhood teachers should be subject to a two-hour minimum engagement period. The CCSA submitted a proposed variation relating to the engagement period, supported by the UWU, IEU and the ECEC Employers. The Full Bench agreed with the proposed variation.
The coverage issue was initially raised by the Full Bench and concerned administrative issues for ECEC Employers arising from multiple award coverage. IEU and all but one employer organisation did not support the provisional view relevant parts of the Teachers Award be transferred to the Children’s Award. The Full Bench decided that due to the general consensus amongst the parties, no variation should be made.
In addition to the above matters, the Full Bench also determined to vary the clothing allowance provided in clause 15.2 of the Children’s Award.
Read decision [2020] FWCFB 5531.
Other current modern award cases
Work Value Case – Aged Care Award [AM2020/99]
An application to vary clause 14.1 (Minimum wages – Aged Care Employee) and Schedule B (Classification definitions) the Aged Care Award 2010 has been made by the Health Services Union and Health Services Union members Virginia Ellis, Mark Castieau, Sanu Ghimire and Paul Jones.
Directions in relation the filing of evidence and submissions for this matter are available on the Major Cases – Work Value Case – Aged Care Award webpage.
The matter has currently been listed for Mention before Justice Ross on 23 August 2021.
Dates for the hearing of evidence in this matter have been provisionally reserved in November 2021.
Key court reviews
This section provides summaries of the Full Court of the Federal Court of Australia and Federal Court of Australia reviews of Commission decisions.
Pal v Commonwealth of Australia
Matters reviewed: [2019] FWC 5821 and [2020] FWCFB 606
Mr Pal applied for an unfair dismissal remedy, alleging he was forced to resign from his employment with the Commonwealth of Australia as represented by the Department of Home Affairs. The Department objected to the application on the basis that Mr Pal was not, and could not be, an employee of the Commonwealth, and therefore was not protected from unfair dismissal. The Commission found that Mr Pal was engaged under a contract that was not one of employment, and so dismissed the application for want of jurisdiction. On appeal, the Full Bench were not satisfied that the grant of permission to appeal would be in the public interest and dismissed the appeal.
Mr Pal made an originating application to the Federal Court, seeking a declaration that he was not an independent contractor, but rather a Labour Hire Employee, enlivening his workplace entitlements. The Court found that the application for judicial review was devoid of merit and lacked reasonable prospects of success and granted the respondent’s application for summary dismissal.
Read the Federal Court decision [2020] FCA 1483.
Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd trading as Uber Eats
Matters reviewed: [2019] FWC 5008 and [2020] FWCFB 1698
Ms Gupta applied for an unfair dismissal remedy, contending than one or both of the respondent entities were her employer. The Commission found that (most significantly) the manner in which the nature of Ms Gupta’s work was organised, actually carried out and remunerated, and the various roles of the parties under the Service Agreement, weighed against a finding that the relationship between the parties was one of employment. It was found that the description of Ms Gupta as an independent contractor was reasonable in the circumstances. Ms Gupta was therefore found not to be a person protected from unfair dismissal and the application dismissed. On appeal, the Full Bench found that the conclusion that Ms Gupta was not an employee was correct, and the appeal was consequently dismissed.
Ms Gupta filed an Originating Application in the Federal Court, seeking orders quashing the decisions of the Commission and Full Bench, a declaration that she was a ‘national system employee’ for the purpose of s.13 of the Fair Work Act, and a determination of the unfair dismissal application in accordance with law. The matter was heard on 27 November 2020, and the judgment reserved. The parties subsequently reached a settlement, and Ms Gupta withdrew her application.
Teekay Shipping (Australia) Pty Ltd v Auld
Matters reviewed: [2019] FWCFB 6047
Mr Auld and a number of other employees applied for an unfair dismissal remedy. The respondent contended that the applicants were not unfairly dismissed because the termination of their employment was a case of genuine redundancy.
In order to determine whether the dismissals were a case of genuine redundancy, the Commission was required to consider, among other requirements, whether or not the respondent complied with any consultation obligations as required by s.389(1)(b) of the Fair Work Act.
The Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015 applied to the applicants’ employment. As is apparent from the agreement approval decision, the agreement did not contain a consultation term that complied with the requirements of s.205 and the model consultation term was taken to be a term of the agreement. The preliminary question to be determined was whether the model consultation term, taken to be a term of the Agreement, applies in substitution of, or in conjunction with, clause 9 of the agreement. Pursuant to s.615 of the Fair Work Act the President directed a Full Bench to answer this question. The Full Bench concluded that the inclusion of the model consultation term does not have the effect of displacing and rendering inoperative the existing consultation provisions of the agreement. The Full Bench concluded that a non-compliant agreement consultation term together with the model consultation term operate as terms of the agreement and any conflict between the two provisions may be resolved through the usual means of interpreting agreements.
The Full Bench also turned to consider whether the model consultation term is a term of the agreement. The agreement incorporated the Seagoing Industry Award 2010 and provides that an express provision of the agreement will prevail to the extent of any inconsistency between any term of the award and an express provision of the agreement. Clause 8 of the award made provision for consultation. The Full Bench concluded that when read together, the agreement consultation term and the award consultation term (operating as an incorporated term), result in the agreement containing a consultation term which meets the description in s.205 of the Fair Work Act.
The respondent sought relief in the Federal Court and the Federal Court issued a constitutional writ of mandamus requiring the Commission to answer, by decision, such question or questions which were posed to it for answering by the Commission’s President. Following the Court’s order, the Commission expressed the provisional view that the question of whether the model consultation term applies in substitution of, or in conjunction with clause 9 of the agreement does not arise because the model consultation term is not taken to be a term of the agreement. The Commission further stated that if wrong in the conclusion and the model consultation term is taken to be a term of the agreement, the model consultation term applies in conjunction with clause 9 of the agreement and clause 8 of the award operates as an incorporated term and will have effect subject to any inconsistency with an express provision of the agreement.
The respondent lodged an originating application in the Federal Court seeking constitutional writs to quash the orders made by the Commission and declarations that the agreement did not contain a consultation term that complied with s.205, the model consultation term was a term of the agreement and applied to the exclusion of the non-compliant agreement consultation term.
The Federal Court found that the model consultation term became a term of the agreement at the time of its approval. The Federal Court also found that the terms of the model consultation term applied to the exclusion of any rights or obligations in clause 9 or the agreement or clause 8 of the award in respect of the decision to make Mr Auld and the other employees redundant.
In conclusion, the Federal Court found that if an enterprise agreement fails to contain a consultation term that complies in all respects with s.205(1) and (1A), s.205(2) deems the model consultation term to be a part of the agreement so that consultation must occur only in accordance with the statutorily prescribed mechanism. Thus, a model consultation term, taken to be a term of the Agreement, applies in substitution of an agreement consultation term.
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Updated time
Last updated
28 January 2021
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