Winter 2017: Quarterly practitioner update

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Key decisions

This section provides summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act). In this edition of the quarterly practitioner update, we have featured 14 Commission decisions issued between 1 April 2017 and 30 June 2017.

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

Annual Wage Review 2016–17

The Fair Work Act requires the Commission's Expert Panel for annual wage reviews (the Panel) to conduct and complete a review of the national minimum wage (the NMW) and minimum wages in modern awards in each financial year. The decision directly affects over 2.3 million employees in Australia who are reliant on minimum rates of pay. In setting the NMW rate the Panel must take into account the objects of the Fair Work Act and the minimum wages objective in s.284. In reviewing modern award minimum wages the Panel must also take the matters in s.284 into account, as well as the modern awards objective in s.134. The Panel is also required to take into account a range of social and other considerations, in particular the 'promotion of social inclusion through increased workforce participation'; 'relative living standards and the needs of the low paid'; 'the principle of equal remuneration for work of equal or comparable value'; and the 'need to encourage collective bargaining'.

The Panel found that the economy had continued to grow and prevailing economic circumstances provided an opportunity to improve the relative living standards of the low paid and to enable them to better meet their needs. Consideration of the international research on the impact of increases in minimum wages on employment, particularly the UK research, fortified the Panel's view that modest and regular wage increases did not result in disemployment effects. Research also suggested that the Panel's past assessment of what constituted a 'modest' increase may have been overly cautious. The Panel acknowledged that the increase proposed would not lift all award-reliant employees out of poverty, particularly those households with dependent children and a single-wage earner. However to grant an increase to the NMW and award minimum rates of the size necessary to immediately lift all full-time workers out of poverty was likely to have adverse employment effects on those groups who are already marginalised in the labour market.

The Panel determined that the level of increase decided upon would not lead to inflationary pressure and was highly unlikely to have any measurable negative impact on employment; it would, however, mean an improvement in the real wages for those employees who were reliant on the NMW and modern award minimum wages, and an improvement in their relative living standards. The Panel determined it was appropriate to increase the NMW by 3.3 per cent, making the NMW $694.90 per week, or $18.29 per hour. The hourly rate has been calculated by dividing the weekly rate by 38, on the basis of the 38-hour week for a full-time employee. This constituted an increase of $22.20 per week to the weekly rate, or 59 cents per hour to the hourly rate. The Panel also considered it was appropriate to adjust modern award minimum wages by 3.3 per cent, with weekly wages rounded to the nearest 10 cents. The determinations and order giving effect to the decision came into operation on 1 July 2017.

Read decision [2017] FWCFB 3500 or read statement [2017] FWCFB 3501.

Unfair dismissal matters

Newchurch v Tangentyere Council Aboriginal Corporation

After conciliation in relation to this unfair dismissal application, the parties were given an extension on the 'consideration time' for settlement. Both representatives advised the Commission that a settlement agreement had been reached. The following day, the conciliator sent correspondence to the representatives of the parties confirming that a settlement agreement had been reached and that the terms of settlement would be completed by the representatives of both parties. This correspondence was not sent directly to either the applicant or respondent. The applicant subsequently requested that the matter be determined at hearing, and also communicated to her representative that representation was no longer required. The applicant’s representative ceased representation.

The Commission sought submissions from the parties addressing if settlement had been reached. Both parties filed submissions, the applicant's evidence illustrated that her representative had acted without proper instructions, and that she did not wish to accept the offer. The applicant indicated she would not sign the terms of settlement. The respondent submitted that there was a concluded settlement and that the applicant's application should be dismissed. The Commission considered Masters v Cameron and found that 'consideration time' precluded a conclusion that an agreement was reached at conciliation. The Commission favoured the applicant's evidence, and was satisfied that the applicant did not agree to elements of the proposed terms of settlement, and did not accept the offer. The Commission was not satisfied that the parties had reached agreement and was unable to conclude that there were binding terms of settlement. The Commission declined to dismiss the application, the merits of the case to be heard and determined.

Read decision [2017] FWC 2653.

Ilves v Lawson Worldwide Forwarding P/L

The applicant in this unfair dismissal matter submitted that the termination of his employment occurred on 1 March 2016, however the respondent submitted that it occurred on 6 February 2016, by hand delivered letter. The unfair dismissal application was lodged on 21 March 2016. The respondent objected to the application on the grounds that the application was made outside the 21 day time limit prescribed in the Fair Work Act. The termination letter was not on company letter head and was unsigned. The applicant provided security video footage which he submitted showed that the respondent did not deliver the termination letter. The Commission found that the security camera was located some distance away from the applicant's letterbox and was obstructed by a tree, and as such, may not have been able to show the respondent delivering the letter. The applicant and the respondent led separate evidence about the text message and email correspondence between 8 February to 1 March. The applicant submitted that his correspondence was in the form of medical certificates and requests for personal leave, the respondent submitted that the correspondence he sent was seeking that the applicant contact him to discuss the termination situation.

The Commission was satisfied that the applicant's behaviour of continuing to provide medical certificates, and failing to request his personal belongings be returned to him, indicated a lack of knowledge of the termination letter. The Commission was not convinced by the respondent’s submissions that a lack of evidence from the applicant of any illness, and of the inability to check his letterbox, was a relevant consideration given that the applicant had submitted he was not aware of any termination letter. The Commission was not satisfied that even if a termination letter was delivered that its contents were clear or unequivocal of the termination. The Commission found that the intention of the termination letter was that the applicant still attend work on the following work day in order to receive a formal termination letter. The letter indicated a desire to terminate the applicant's employment but did not indicate when the termination was to occur. The Commission was not satisfied that the respondent's follow up correspondence mentioned the termination. The Commission found that the applicant’s employment was terminated on 1 March 2016 upon his reading the termination email, and therefore the unfair dismissal application was made within 21 days. The matter was set down for hearing.

Read decision [2017] FWC 2993.

Industrial action matters

Transport Workers' Union v Transit Australia P/L t/a Marlin Coast Sunbus

The Transport Workers Union (the TWU) applied to the Commission for orders relating to certain partial work bans. The TWU gave notice to the respondent that it intended to impose a partial work ban on the collection of fares by drivers. In response the respondent informed employees that the payment of wages for the period of industrial action would be reduced by 51 per cent. The TWU made an application under s.472 of the Fair Work Act seeking an order to vary the amount deducted, applying to reduce it from 51 per cent to 16 per cent. The TWU submitted that the deduction proposed by the respondent was not consistent with the work time lost due to the partial work ban, and was not consistent with Regulation 3.21 of the Fair Work Regulations 2009. The TWU further submitted that the respondent was reducing wages by 51 per cent to recoup lost revenue and that the Commission must take into account the financial position of the ultimate holding company of the business, along with drivers low wages, as relevant factors in the consideration of 'fairness' under the Fair Work Act. The respondent submitted that the 51 per cent reduction was based upon the total operating expenses of the business.

The Commission held that when assessing the appropriate reduction it was necessary to consider the application of s.472(3), Regulation 3.21 and all of the circumstances of the case. The Commission held that it was apparent that the respondent's methodology adopted in assessing its 51 per cent wage reduction provided an inflated result for the wage reduction, and that the TWU, in formulating its 16 per cent calculation, did not include any additional duties apart from fare collection. The Commission did not accept that the impact on the holding company was a relevant consideration. The Commission held that it was the proximate relationship of the parties engaged in bargaining, and those immediately impacted by protected industrial action that was relevant to setting the proportion of wage reduction. The formula in Regulation 3.2.1 must be considered. The Commission held that a figure of 20.1 per cent would account for apportioning time spent on associated fare collection duties rather than just fare collection, and that this was the appropriate reduction for the period of protected industrial action.

Read decision [2017] FWC 1531.

Enterprise bargaining matters

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v WorkPac P/L

In this matter the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch (the CFMEU) applied for a bargaining order requiring the respondent to cancel a ballot in relation to a proposed enterprise agreement, and to meet with them and other bargaining representatives to bargain over certain clauses in the proposed agreement. The respondent was bargaining with employees and the CFMEU for an enterprise agreement to replace the WorkPac P/L Mining (Coal) Industry Enterprise Agreement 2012. Negotiations for the proposed agreement commenced in May 2016 and the parties held 13 bargaining meetings and exchanged 14 drafts of the proposed agreement. In November 2016 the respondent put the proposed agreement to a ballot of employees, this was rejected by a majority of employees who cast a valid vote. Bargaining meetings then recommenced between the parties. On 20 March 2017, the respondent wrote to bargaining representatives and forwarded them draft 14 of the proposed agreement. The respondent advised the CFMEU that this was their final offer and that it intended to commence pre-voting requirements to allow the proposed agreement to be put to a ballot of employees. The CFMEU submitted that it did not believe that the respondent had met the requirements in ss.228(1)(d) and (e) of the Fair Work Act, because it failed to give bargaining representatives a proper opportunity to engage with the employer in respect of the classification structure in Schedule 1 of the proposed agreement. The CFMEU sought an undertaking from the respondent that it would cancel the ballot and convene further bargaining meetings to discuss the classification structure. The respondent declined to provide the undertakings sought by the CFMEU.

The CFMEU submitted that the respondent had peremptorily terminated bargaining in order to avoid negotiating with employee bargaining representatives over the terms of Schedule 1. The respondent submitted that it had not failed to bargain in good faith, and that it had met each of the requirements of s.228(1). The Commission considered Endeavour Coal and found that the respondent did not fail to meet the good faith bargaining requirement in s.228(1)(d). The respondent had participated in 13 bargaining meetings since May 2016 in an attempt to make the agreement with employees, had made its position clear in relation to the proposals advanced by the CFMEU, and had advanced its own proposals in response.

The Commission found that the respondent did not fail to genuinely consider the proposals advanced by the CFMEU, and did not fail to give genuine consideration to the proposal advanced by the CFMEU by refusing to meet to discuss its own final offer. The refusal by the respondent to engage in a further meeting after it had circulated its best and final offer was not a failure to give genuine consideration to the proposals of the other bargaining representatives. The Commission found that there was no failure to give reasons for the refusal to participate in another meeting, and that the respondent did not fail to meet the good faith bargaining requirement in s.228(1)(e). There is no absolute requirement for the agreement of all bargaining representatives to be obtained before a proposed agreement is put to a ballot of employees. The Commission held that there had been extensive bargaining and limited scope for either party to move, it was therefore not unreasonable for the respondent to refuse to participate in a further meeting in the circumstances that pertained when it decided to put the proposed agreement to a ballot of employees. The Commission found that the respondent did not breach s.228(1)(f), as the requirements in s.228(1) do not compel parties to keep negotiating until an agreement is made, and that orders cannot be directed at that purpose. The Commission was not satisfied that its discretion to make a bargaining order was triggered, or that further meetings would serve any purpose relevant to meeting the good faith bargaining requirements. The Commission held that the respondent had met or was meeting the good faith bargaining requirements. The application for a bargaining order was dismissed.

Read decision [2017] FWC 1995.

Enterprise agreement matters

Appeal by Shop, Distributive and Allied Employees Association against decision [[2016] FWCA 8862] Re: Beechworth Bakery Employee Co P/L t/a Beechworth Bakery

The Commission approved the Beechworth Bakery Employee Co P/L Enterprise Agreement 2016 with undertakings. The Shop, Distributive and Allied Employees Association challenged the decision to approve the agreement on two broad bases: that the Commission incorrectly applied the better off overall test (the BOOT); and that the Commission erred in accepting the undertaking proffered by respondent. The Full Bench considered it unnecessary to decide whether the agreement passed the BOOT because, absent the undertaking proffered by respondent, there was no finding in the decision that the agreement passed the BOOT. The Full Bench therefore turned its attention to the undertaking and determined that the power to approve an agreement with undertakings was only enlivened if the Commission had concern that the agreement did not meet the requirements set out in ss.186 and 187 of the Fair Work Act. The Full Bench observed from the transcript that the Commission had concerns about whether the agreement passed the BOOT. The Full Bench did not consider it was necessary for the Commission to make findings as to the manner in which the agreement did not pass the BOOT, it was sufficient for the purposes of enlivening the jurisdiction concerning the provision of undertakings for the Commission to identify its concern with enough particularity so that the respondent could seek to address its concern by proffering an undertaking. The Full Bench considered that the Commission's concern was clearly enough articulated during the course of the hearing to enable the respondent to respond to that concern by providing the undertaking. The Full Bench held that the undertaking proffered by the respondent was not an undertaking capable of addressing the Commission's concern that the agreement did not pass the BOOT. The Full Bench further held that acceptance of the undertaking and the reliance on it to approve the agreement was therefore erroneous. As the Commission did not conclude that the agreement passed the BOOT independently of the undertaking, nor did it make any finding under s.189 that the agreement should be approved even though it did not pass the BOOT, the Full Bench held that there was no proper basis to approve the agreement. Permission to appeal was granted and the appeal upheld. The decision to approve the agreement was quashed and the application for approval of the agreement was remitted to Sams DP for re-determination.

Read decision [2017] FWCFB 1664.

Procedural matters

Appeal by Construction, Forestry, Mining and Energy Union against decision [[2016] FWCA 8835] Re: CSRP P/L

The Commission approved the CSRP Enterprise Agreement 2016 after accepting undertakings proffered by the respondent. The appellant submitted three grounds of appeal, being that the Commission erred in being satisfied that the agreement was genuinely agreed to by employees covered by it; that the terms of the agreement did not contravene s.55 of the Fair Work Act; and that the agreement did not contain any unlawful terms. The Full Bench considered whether the appellant had sufficient interest and connection to the issue to be able to bring the appeal, as the appellant was not a bargaining representative in relation to the agreement, and it did not have a member who was employed by respondent when the agreement was made. The appellant contended that it was aggrieved by the decision because it had an interest beyond that of an ordinary member of the public, and also had eligibility coverage under its rules. The respondent submitted that the appellant did not have sufficient interest and connection to bring the appeal because it did not show actual or apprehended impingement of its legal rights as a result of the first instance decision. The Full Bench considered CEPU v Main People and found that the appellant had the requisite interest in the decision. The respondent's challenge to the appellant's standing to bring the appeal was rejected.

The Full Bench considered the appellant's appeal grounds and was not persuaded that the Commission at first instance erred in being satisfied that the agreement was genuinely agreed to, and was also not persuaded that uncertainty or questionable legal efficacy in relation to one term of an agreement was a sufficient basis to doubt whether an agreement was genuinely agreed to. The Full Bench found that there was sufficient information in the respondent's statutory declaration to support the Commission's finding of being satisfied that the agreement was genuinely agreed to. The first ground of appeal was rejected. The appellant had also contended that three provisions of the agreement contravened s.55. The Full Bench found that clause 5.5 of the agreement would have the effect of excluding an employee's entitlement to be 'paid annual leave' as required by s.87(1), and could also exclude other NES entitlements. The Full Bench also found that clause 7.5 of the agreement had the effect of excluding the operation of ss.114(1) and (3), and found that the third paragraph of clause 8.1 of the agreement was a term not permitted by s.55(4). The Full Bench held that the clause was detrimental to employees because it denied employees the full benefit of s.88, as the clause did not contain one of the three requirements of a permitted cashing out term as set out in s.93(2). The Full Bench concluded that the appellant had made good the second ground of its appeal. The appellant had also contended that clause 14 of the agreement contained unlawful terms, the Full Bench rejected this ground of appeal. Permission to appeal was granted and the appeal was upheld. The decision to approve the agreement was quashed. The respondent was allowed 14 days from the date of the decision to provide any written undertaking it proposed.

Read decision [2017] FWCFB 2101.

Esso Australia P/L v Australian Workers' Union and Ors

The Australian Workers' Union; the "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 (collectively the Unions) sought an order requiring Esso to provide copies of financial documents or records pursuant to s.590(2)(c) of the Fair Work Act. The parties were involved in a proceeding conducted pursuant to s.266 concerning the making of an industrial action related workplace determination. The Full Bench adopted the principles to be applied in determining whether an order should be made, and if so in what form, from Australian Nursing Federation v Victorian Hospitals' Industrial Association. The Unions submitted that certain documents may set out Esso's real financial position. Esso opposed production of the documents on the basis of relevance, oppressiveness, and that the proposed categories covered an enormous array of documents. The Full Bench granted an order for production of specified annual statements, as they were relevant to issues that will likely require determination in the substantive proceeding, and the production would not be oppressive. The Full Bench refused the order requiring production of specified loan documents as the same evidence could be elicited through cross examination of Esso's witnesses, and also refused the order requiring production of specified documents evidencing the proposal for a particular development, as many of which were likely to be of no relevance to issues that would fall for determination and was therefore oppressive. The Full Bench held that it was also not likely to shed any light on evidence regarding challenges for Esso in presenting a business case for capital investment. The Full Bench refused the order requiring production of certain documents relating to annual take or pay volume, revenue and certain gas supply contracts on the basis that production would be oppressive, and that annual statements ordered to be produced were likely to yield sufficient information regarding the issues. The Full Bench granted the order for production of specified forecasting reports as they were relevant, however the documents to be produced were to be the most current or most recent of any report, analysis or paper in the identified period. The Full Bench refused the order for production of certain contracts on the basis that they were irrelevant and oppressive, and may require disclosure of confidential contractual documents.

Read decision [2017] FWCFB 2200.

Appeal by Wanninayake against decision [[2017] FWC 321] and order [PR589506] Re: State of Queensland (Department of Natural Resources and Mines (SIMTARS))

At first instance in this unlawful termination application the Commission found there were not exceptional circumstances that would justify the Commission exercising discretion to grant the appellant an extension of time for the application to be made. The application was made 904 days outside the specified time limit. The Full Bench found that the Commission did not deal with the issue of permission for legal representation in the decision at first instance. The Full Bench considered Warrell v Walton and found that as the respondent was previously granted permission to be represented, this may have contributed to the Commission not explicitly dealing with this issue in the decision. The Full Bench held that in accordance with Warrell v Walton, the issue of permission to be legally represented was required to be dealt with, and that failing to do so constituted a significant error. The Full Bench was not satisfied that the Commission exercised its power in a manner that was 'fair and just' pursuant to s.577(a) of the Fair Work Act and found the error was made in accordance with House v The King. Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the matter referred to Gooley DP for rehearing.

Read decision [2017] FWCFB 1906.

Appeal by Colella against decision [[2017] FWC 1139] and order [PR590568] Re: Aroona P&T P/L t/a Aroona Alliance

At first instance the Commission dismissed the appellant’s unfair dismissal application, finding the respondent had a valid reason for the termination. The appellant’s grounds of appeal claimed that the Commission erred in a number of respects including making findings in relation to data obtained from a personal digital assistant. Permission to appear was granted to representatives of both parties due to the complexity of the matter. The appellant sought to lead further evidence, the Full Bench considered the principles in Power Projects International and Akins. The respondent's submissions contained 386 pages of evidence and highly technical data. The Full Bench found that the appellant was not provided with the opportunity to file reply submissions, and was not able to properly assess the material without some form of technical or expert assistance. The Full Bench held that the appellant was denied the opportunity to put a case on an important issue which could have led to a different outcome. The Full Bench found that the evidence was credible and allowed the new evidence. Regarding permission to appeal, the Full Bench held that the appellant did not have the benefit of the provision of reply submissions, and that the period between receiving the highly technical data and the hearing was short. The Full Bench noted that the appeal could have been avoided if a reply submission had been provided for in the originating directions, and a longer timeframe had been provided for between the written submissions and the hearing date. The Full Bench found that the appellant was denied natural justice. Permission to appeal was granted and the decision under appeal quashed. The matter was referred to Riordan C for rehearing.

Read decision [2017] FWCFB 2430.

Hayes v ALDI Foods P/L as General Partner of ALDI Stores (A Limited Partnership)

In this matter the applicant lodged an application to deal with an unlawful termination dispute under s.773 of the Fair Work Act. The respondent objected to the application as it was a constitutionally covered entity. The applicant sought that the application be amended to a general protections application under s.365, and also for the respondent's name to be amended to the entity identified in the employer's response. The applicant submitted that at the time of making the application, she believed that the respondent was not a corporation as her contract and payslips both referred to it being a limited partnership, she further submitted that there was no substantial change in the process and the irregularity was only one of form. The respondent submitted that the discretion in s.586 did not extend to making the change sought, as the request went beyond that of form and was a substantial and substantive change that altered the nature of the application. The Commission considered Ioannou where the Full Bench held that s.586 could not be used to amend an application if the amendment fundamentally changed the original application. The Full Bench therefore refused to transform the unfair dismissal application into a general protections application, even though both may have arisen from same set of circumstances involving the dismissal of the employee. The Commission raised similar concerns to those raised by the Full Bench and identified that whilst there were some similarities between s.365 and s.773, there were also significant differences including the range of alleged contraventions, the reasons an employer must not terminate employment, and the statutory time requirements by which the application must be filed. The Commission held that the appropriate course of action for the applicant was to discontinue her s.773 application and then make an application under s.365. There was no objection from the respondent regarding the application to amend its name. The application to amend from a s.773 application to a s.365 application was refused, the application to amend the respondent's name was granted.

Read decision [2017] FWC 2369.

Appeal by United Firefighters' Union of Australia against decision [[2017] FWC 1708] and order [PR591374] Re: Metropolitan Fire and Emergency Services Board

At first instance the Commission made a decision to not grant an application to suppress all evidence, materials and transcripts in proceedings related to this matter, including any decision issued. The Full Bench issued a stay order staying the decision and order at first instance pending the determination of the appeal. Permission to appeal can only be granted if it is in the public interest, the Full Bench considered that this matter raised important questions concerning the principles of open justice, and concluded that the public interest was enlivened and as such permission to appeal was granted. The presumption in s.593(2) of the Fair Work Act that hearings must be held in public accords with the principle of open justice [Seven Network]. Departure from the principle is only justified where observance frustrates the administration of justice by unfairly damaging some material private or public interest. The Full Bench held that the potential for embarrassment was no justification for suppressing the matter by way of an ongoing confidentiality order. By bringing their dispute to the Commission, the parties accepted the necessity to conduct proceedings openly and transparently, to uphold confidence in the Commission. The Full Bench was not satisfied that there should be a departure from the principles of open justice. Permission to appeal was granted, the appeal dismissed and the stay order revoked.

Read decision [2017] FWCFB 2500.

4 yearly review of modern awards–Family & Domestic Violence Leave Clause

The Australian Council of Trade Unions made an application for a paid family and domestic violence leave clause to be inserted into every modern award (matter AM2015/1). On 27 February 2017 Vice President Watson published his decision in this matter, the Vice President’s resignation from the Commission took effect the next day. At the time of Vice President Watson’s resignation, the other two members of the relevant Full Bench (Deputy President Gooley and Commissioner Spencer) had not published their decisions, and they sought advice from the President as to whether they may proceed to finalise and publish a decision in the matter, having regard to s.622 of the Fair Work Act. This issue, the 'constitution issue', was set out in detail in the Statement of 28 April 2017 [[2017] FWC 2347] (the April Statement). The President sought and received written and/or oral submissions regarding the constitution issue from various employer/employee organisations and peak bodies. The President expressed a provisional view in the April Statement that he should seek certainty in final disposition of matter AM2015/1 by referring questions of law to the Federal Court of Australia pursuant to s.608(1). The parties to the matter, and any other interested persons, were requested to provide submissions on this provisional view and various matters outlined in the Attachment to the April Statement. Various parties lodged submissions and the President decided to refer the questions set out in the Attachment to the April Statement to the Federal Court, with one deletion from the statement of facts.

The questions of law were referred to the Federal Court as a special case with the intention that the answers to these questions would dispose of the constitution issue and provide certainty in the final disposition of matter. The Federal Court indicated that the framing of the special case raised 'complex questions' and suggested, as one simpler alternative to pursuing the special case, that the sorts of questions that were raised could be brought to the Court if the President was to make a decision on the constitution issue and a dissatisfied party affected by that decision then chose to bring an application for judicial review. The President discontinued the special case, subject to the Court granting leave, and determined to decide the constitution issue, noting that it would then be open to a dissatisfied party to bring an application for judicial review of any decision. The circumstances of this matter were unprecedented. The President did not propose to exercise any powers to reconstitute the Full Bench, and was of the view that the Fair Work Act permitted Deputy President Gooley and Commissioner Spencer to hand down their decision(s) so as to complete decision-making process of the original Full Bench. The President requested that Senior Deputy President Gooley and Commissioner Spencer hand down their decision(s) in the matter as soon as possible, and that those decisions, taken together with decision of former Vice President Watson, would together comprise the Full Bench decision in matter AM2015/1.

Read decisions [2017] FWC 2752 and [2017] FWC 3480

Award modernisation – 4 yearly review

Under s.156 of the Fair Work Act the Commission is required to review all modern awards every four years. All material in relation to the 4 yearly review, including a detailed timetable, is available on the Commission's website. As part of the 4 yearly review, the Commission is redrafting all modern awards to make them more consistent and easier for employers and employees to use. A dedicated page of each of the awards under review has been created.

Penalty rates

Appeal by the Shop, Distributive and Allied Employees Association and United Voice to the Federal Court of Australia [VID684/2017 and VID685/2017]

On 5 July 2017, Justice Bromberg made an order for the two applications to be heard together and for the hearing of the proceedings be expedited. The proceedings will be fixed for a final hearing before a Full Court on or after 18 September 2017 with an estimate of three days.

Casual & part-time employment

The Full Bench handed down its decision on 5 July 2017 [[2017] FWCFB 3541]. A summary of [2017] FWCFB 3541 (PDF) was also published on the same day.

National Training Wage

In a Statement on 6 July 2016 [[2016] FWC 4495], the Commission proposed to standardise the National Training Wage (NTW), to remove the NTW Schedule from all modern award except the Miscellaneous Award 2010, and to incorporate the NTW Schedule into other awards by reference to the Miscellaneous Award. Applications were made to retain an award-specific NTW in nine modern awards and the Full Bench expressed the provisional view that where parties had made applications to retain the NTW Schedule, this would occur. The Commission issued a decision on 9 June 2017 [[2017] FWCFB 3176] setting out the reference term to be inserted into all modern awards that currently contain a NTW Schedule (other than the nine awards subject of applications to retain award-specific schedules). Draft determinations were then issued for comment by interested parties. Final determinations were then issued on 23 June 2017.

The form of the NTW Schedule to be inserted into the Miscellaneous Award is being considered as part of the Plain Language matter (AM2016/15). A revised plain language redraft of the Schedule was published on 21 June 2017 and a conference was listed for 21 July 2017. The applications to retain award-specific NTW Schedules will be determined after the NTW Schedule in the Miscellaneous Award has been finalised.

Plain language

A conference was held on 18 April 2017 in relation to outstanding issues in the Pharmacy Industry Award Plain Language Exposure Draft. Submissions were filed and a Decision was issued on 21 June 2017 [[2017] FWCFB 3337] regarding these outstanding issues. Parties were given further opportunity to provide written submissions in relation to outstanding issues and were notified that the issues would be determined on the basis of those final submissions.

Plain language exposure drafts for the Restaurant Industry Award 2010 and Hospitality Industry (General) Award 2010 were published on 21 April 2017 and 27 April 2017 respectively. Submissions were filed in relation to these exposure drafts in June.

Submissions were also filed in respect of the proposed inclusion of an additional 10 awards in plain language redrafting in accordance with the statement on 27 March 2017 [[2017] FWCFB 1638]. In a statement issued on 28 April 2017 [[2017] FWC 2345] Justice Ross indicated that submissions related to the next stage of the plain language re-drafting project would be addressed in late July.

The third of a series of three conferences regarding the plain language redrafting of standard clauses was held on 11 April 2017. A hearing has been listed on 21 August 2017 in relation to standard clauses.

Annual leave

In a decision issued on 22 September 2016, the Full Bench expressed provisional views in relation to the insertion of the model annual leave term into a number of additional awards. Draft variation determinations were published on the Commission's website and parties were provided with an opportunity to comment on the draft determinations. A further decision was issued on 19 December 2016 dealing with comments received from interested parties and finalising the determinations for the relevant modern awards, including the outstanding maritime industry awards.

The review of the shutdown provision to be included as part of the annual leave clause in the Black Coal Mining Industry Award 2010 is ongoing. The Full Bench issued a decision on 27 March 2017 [[2017] FWCFB 959] setting out a provisional view that a revised shut down provision be inserted into the Black Coal Award. The Decision gave parties the opportunity to file submissions in relation to the provisional view and a further hearing was held on 5 May 2017. The Full Bench has reserved its decision.

Abandonment of employment

Following a Full Bench decision on 13 January 2017 in Iplex the Commission commenced a review of abandonment of employment terms in six modern awards. The matter has been listed for hearing in Sydney on 14 August 2017.

Payment of wages

This matter was listed for conference on 4 May 2017 to identify which matters were agreed and which remained contentious. At the conference it was agreed that the interested parties would have direct discussions relating to the four conceptual issues in relation to the timing of payment of wages model term, being:

the duration of pay periods
the time between the end of a pay period and when payment is due
payment methods, and
the public holiday/weekend issue.

The matter was listed for mention before Justice Ross on 19 July 2017.

Family & domestic violence clause

The ACTU made a claim to include an entitlement to ten days paid family and domestic violence leave per year in all modern awards. The application was heard between 14–18 November and 1–2 December 2016. The Full Bench finalised its decision on 3 July 2017 [[2017] FWCFB 3494]. The Full Bench rejected the ACTU’s claim, with the majority determining that they were not satisfied, at this time, that paid leave was necessary to meet the modern awards objective. However, the majority expressed the preliminary view that all employees should have access to unpaid family and domestic violence leave and in addition to this, that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave. The Full Bench issued a further Statement and Directions on 3 August 2017 [[2017] FWCFB 4047] in relation to this matter.

Blood & bone marrow donor leave application

A Full Bench was constituted to consider an application by the Shop, Distributive and Allied Employees' Association to insert provisions for Blood donor leave and Bone marrow donor leave into five modern awards. In an amended application dated 5 April 2017, the SDA withdrew its claim to insert bone marrow donor leave in the five awards. The claim in relation to paid blood donor leave was listed for hearing on 17–19 July 2017.

Resources & initiatives

Workplace Advice Clinic

The Commission's pilot Workplace Advice Clinic program, operating in Sydney, Brisbane and Melbourne, provides free legal assistance to applicants seeking employment law advice.

Qualified lawyers employed by Community Legal Centres provide their services free of charge to self-represented applicants seeking guidance with unfair dismissal or general protections matters. The service, facilitated by the Commission, involves Commission staff scheduling appointments for applicants to meet with a lawyer from one of the legal services at the Commission's premises.

The Sydney clinic runs on Thursdays with lawyers provided by Legal Aid NSW and Marrickville Legal Centre.

The Melbourne clinic runs on Wednesdays and Thursdays with lawyers provided by JobWatch and Springvale Monash Legal Service.

The Brisbane clinic runs on Tuesdays and Thursdays with lawyers provided by Legal Aid Queensland.

All costs associated with providing lawyers for the Workplace Advice Clinic are met by the legal services.

General update

Practice notes

Two practice notes commenced on 29 June 2017.

The Discontinuing matters practice note provides a summary of the key points regarding the discontinuance of matters before the Commission and the effect of discontinuance.

The Requests to appear remotely practice note provides guidance for making requests for the use of video and telephone conferencing facilities during hearings and conferences for matters before the Commission.

Filing fees & high income threshold increased

From 1 July 2017 the filing fee for dismissals, general protections and anti-bullying applications made under ss.365, 372, 394, 773 and 789FC of the Fair Work Act increased to $70.60.

Also effective from 1 July, the high income threshold in unfair dismissal cases increased to $142,000 and the compensation limit is $71,000 for dismissals occurring on or after 1 July 2017.

Quarterly statistical reports

The Commission's quarterly statistical reports for the 3nd quarters of 2016–17 are now available.

The reports can be accessed from the Quarterly reports page on our website. They cover the period from 1 January 2017 to 31 March 2017.

An Information note (PDF) is also available, which provides details about the sources of the data contained in the reports.

Changes to agreement approval process & agreement date calculator

The Fair Work Commission has made changes to the way it approves enterprise agreements and, following consultation with peak industry bodies, streamlining its listing process.

In addition, the Commission has launched a single enterprise agreement date calculator. This is a tool to help employers, representatives and bargaining representatives make sure their process for agreement making and application for approval complies with the legislative timeframes.

More information can be found in the media release dated 1 May 2017 (PDF).

More updates

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.

Last updated

15 August 2017

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Fair Work Commission