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Enterprise agreements benchbook

An overview of legal procedure & case law

Minor procedural or technical errors

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Table of contents

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  • Minor procedural or technical errors relating to genuine agreement
  • The proper construction of section 188(2)
  • Section 188(2)(a): minor procedural or technical errors
  • Case examples
  • References

 

Minor procedural or technical errors relating to genuine agreement

See Fair Work Act 2009 s.188(2)

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act) has revised s.188 of the Fair Work Act to provide a mechanism for the Fair Work Commission to conclude that an enterprise agreement has been genuinely agreed, within the meaning of s.186(2)(a), despite 'minor procedural or technical errors'.

Section 188(2) reads as follows:

  1. An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the [Commission] is satisfied that:
    1. the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
    2. the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.[1]

The Amending Act received the Royal Assent on 11 December 2018 and the amendments to s.188 commenced on 12 December 2018.

Examples of what may be considered minor procedural or technical errors is provided in the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017:[2]

Examples of minor procedural or technical errors could include (without limitation):

  • employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3));
  • employees being requested to approve a proposed enterprise agreement on the 21st day after the last Notice was given, rather than at least 21 days after the day on which the last Notice was given (subsection 181(2));
  • the inclusion of the employer's company logo or letterhead on a Notice;
  • the inclusion of additional materials that are stapled with a Notice; or
  • minor changes to the text of the Notice that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than 'contact your employer').

The proper construction of section 188(2)

The Full Bench of the Commission considered how the introduction of s.188(2) could be applied in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others.[3]

The following propositions[4] emerged from the Full Bench’s consideration of the proper construction of s.188(2):

  1. Subsections 188(1) and (2) are to be approached sequentially. The first question is whether the Commission is satisfied as to the matters at s.188(1)(a) to (c). If it is so satisfied then the agreement has been genuinely agreed to and there is no need to consider s.188(2).
  2. The reference to the 'employees covered by the agreement' in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181.
  3. Subsections 188(1) and (2) both provide that an enterprise agreement has been genuinely agreed if the Commission is satisfied as to certain matters (ie those in s.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively). The latitude as to the choice of the decision to be made by ss.188(1) or (2) is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgment. Assessing the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment.
  4. Section 188(2) is confined to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of 'errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights'.
  5. Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise from a consideration of s.188(1)(c).
  6. Section 188(2) does not apply to all procedural or technical requirements with which an employer must comply when bargaining for an enterprise agreement. The 'minor procedural or technical errors' referred to in s.188(2)(a) must be errors 'made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights' [emphasis added].
  7. The following table sets out the procedural or technical requirements to which s.188(2) applies.

Table 1: Scope of s.188(2)

Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[5]

Section Procedural or technical requirement

188(1)(a)

Comply with subsection 180(2) – take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period or that the relevant employees are given access to these materials throughout the access period

Comply with subsection 180(3) – take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period

Comply with subsection 180(5)(a) – take all reasonable steps to ensure the terms of the agreement and their effects are explained to the relevant employees

Comply with subsection 180(5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees

Comply with subsection 181(2) – the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last notice of employee representational rights (NERR) is given

188(1)(b)

The agreement must be made in accordance with subsection 182(1) or (2)

173(1)

Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement

173(3)

Issue the NERR as soon as practicable, no later than 14 days after the notification time

174(1A)(a)

The NERR must contain the content prescribed by the regulations

174(1A)(b)

The NERR must not contain any other content

174(1A)(c)

The NERR must be in the form prescribed by the regulations

Section 188(2)(a): minor procedural or technical errors

When considering the definition of minor procedural or technical errors the Full Bench found the following:[6]

  1. The adjective minor qualifies both procedural errors and technical errors, such that the expression reads 'minor procedural errors or minor technical errors'. The word minor is a limitation upon the type of errors contemplated by s.188(2)(a).
  2. A failure to comply with a procedural requirement will constitute a procedural error within the meaning of s.188(2)(a).

A procedural requirement is one which requires an employer to follow a particular process or course of action.

For example:

An example of a procedural requirement may be providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time (s.173(3)), or ensuring there are at least 7 clear days between notifying employees of the voting process and the commencement of that process (s.180(3)).

  1. A failure to comply with a technical requirement will constitute a technical error within the meaning of s.188(2)(b).

A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.

  1. A single error may have both procedural and technical components.
  2. The impact of the errors is to be assessed by reference to the objects of the requirements in ss.188(2)(a), 188(1)(b), 173 or 174.
  3. What constitutes a minor error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances.

Table 2 (see below) examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

  1. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a minor error.

For example:

Informing the employees of the time and place at which the vote will occur, and the voting method that will be used as per the requirements of ss.180(3)(a) and (b) just after the start of the 7 day access period (for instance 6 days before the start of the voting process) is likely to be a minor error in most cases.

However this will depend on the circumstances.

If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a minor error.

Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a 'minor error where there is a history of bargaining at the enterprise; the agreement is, in effect, a roll over agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

  1. Whether an incidence of non-compliance is characterised as a minor error also depends on the nature of the requirement which has not been complied with.

For example:

The need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the voting method (s.180(3)(b)) – the first requirement may impact on the employees' capacity to participate in the voting process, the second may not.

  1. Some species of error are unlikely to be classified as minor.

For example:

The deletion of the prescribed text of the NERR which deals with an employee's right to appoint a bargaining representative and the role of the unions as the default bargaining representatives. But, again, it may depend on the circumstances.

  1. The test in s.188(2)(b) is whether the employees covered by the agreement were 'not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174' [emphasis added].

The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of genuine agreement.

  1. Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement 'were not likely to be disadvantaged by the errors'.
  2. The test suggested by s.188(2)(b) is whether 'the employees covered by the agreement were not likely to have been disadvantaged by the errors.
  3. The word likely in s.188(2)(b) means probable in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word disadvantaged suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Fair Work Act.
  4. In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.

Table 2: Procedural or technical requirements & potential disadvantages

Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[7]

Section Procedural or technical requirement Underlying purpose of requirement How might employees be disadvantaged?

188(1)(a)

Comply with subsection 180(2) – take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period OR that the relevant employees are given access to these materials throughout the access period

To ensure employees have a reasonable chance to make an informed decision when voting

In the circumstances employees may not have had effective access to materials or insufficient time to consider them to make an informed decision when voting

Comply with subsection 180(3) – take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period

To ensure employees are able to attend and participate in the voting process (should they choose to do so)

In the circumstances employees might be unaware of the voting process occurring thus preventing them from effectively participating in the voting process

Comply with subsection 180(5)(a) – take all reasonable steps to the terms of the agreement and their effects are explained to the relevant employees

Ensure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision

In the circumstances the steps may have been taken such that the employees might not be in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote

Comply with subsection 180(5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees

Ensure that particular classes of employees are able to understand the agreement not withstanding any particular circumstances or needs

In the circumstances the employees may have received the explanation in a language they do not speak thus they may not be in a position to make an informed decision when voting

Comply with subsection 181(2) – the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last NERR is given

To provide the employees with a minimum period of time for the bargaining process to occur before voting on an agreement

In the circumstances the period is cut short preventing the employees from effectively appointing bargaining representatives and participating in genuine good faith bargaining

188(1)(b)

The agreement must be made in accordance with subsection 182(1) or (2)

 

 

173(1)

Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement

To ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights

In the circumstances the NERR may be so altered that employees fail to understand and exercise their representational rights and effectively participate in the bargaining process

173(3)

Issue the NERR as soon as practicable, no later than 14 days after the notification time

To ensure that the employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner

In the circumstances the employees may have received the NERR later than the 14 days thus period preventing them from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate

174(1A)(a)

The NERR must contain the content prescribed by the regulations

To ensure that the employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing

In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining

174(1A)(b)

The NERR must not contain any other content

174(1A)(c)

The NERR must be in the form prescribed by the regulations

Case examples

Employees do NOT genuinely agree

Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union

Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512 (Watson VP, Watson SDP, Gooley C, 8 November 2012).

At first instance, the Commission declined to approve the enterprise agreement on the basis that the notice of employee representational rights (Notice) provided to employees did not meet the form and content requirements in the Fair Work Regulations because it did not give notice of the default bargaining representatives.

On appeal, the Full Bench was required to consider whether it could be satisfied that the agreement had been genuinely agreed where the Notice given to employees was not in the form required.

Permission to appeal was granted and the majority concluded, based on the statutory context, in order for an agreement to be genuinely agreed the last Notice issued in advance of a vote must meet the content requirements of section 174. That is, if the Notice did not meet the content requirements (for example, because it did not give notice of default bargaining representatives), the Notice was not valid. Accordingly, the Commission could not be satisfied that the agreement was genuinely agreed by employees and therefore could not approve the enterprise agreement.

The majority dismissed the appeal.

Re ENM Group Pty Ltd

Re ENM Group Pty Ltd [2013] FWC 3035 (O’Callaghan SDP, 17 May 2013).

ENM Group Pty Ltd (trading as Eagle Boys Mawson Lakes) lodged an application seeking approval of the ENM Group Enterprise Agreement. The agreement proposed to cover 6 employees, 5 of whom were under 21 years of age.

The Commission found that the agreement only narrowly satisfied the better off overall test. Transitional arrangements were shortly due to be varied which would have had the effect of increasing award entitlements.

On the information provided (and despite numerous requests to the employer to provide information to allay the Commission's concerns) the Commission was unable to establish what the employees understood or were told about the effect of the agreement. This was particularly the case in relation to the overall impact of the agreement on employees relative to their award entitlements.

The Commission was not satisfied that the agreement was genuinely agreed to by the employees and declined to approve the agreement.

CEPU v Mirait Technologies Australia Pty Ltd

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mirait Technologies Australia Pty Ltd [2015] FWCFB 5078 (Hamberger SDP, Gostencnik DP, Riordan C, 27 July 2015).

Re Mirait Technologies Australia Pty Ltd [2015] FWC 8338 (Gostencnik DP, 1 December 2015).

At first instance the Commission approved the application for approval of the Mirait Technologies Australia (MTA) Enterprise Agreement 2015 – 2019. The decision was appealed on grounds that at the time the decision was made, there were reasonable grounds for believing that the agreement had not been genuinely agreed to for the purposes of s.188(c) and that the Commission could not have been satisfied as required by s.186(2)(a). Other grounds of appeal included the failure to convene a hearing and the adequacy of given reasons for the decision.

The Full Bench were able to dispose of the appeal on the ground of non-compliance with pre-approval steps. Two statutory declarations made by the employer in support of the application contained information that was different and inconsistent. The Full Bench was satisfied that the appeal raised important questions about the proper consideration and application of the pre-approval steps set out in the Fair Work Act.

Permission to appeal was granted and the appeal upheld. The decision at first instance was quashed and the application for approval of the agreement was remitted for determination.

Upon rehearing the Commission was not satisfied that the statutory requirements which would enable the agreement to be approved had been met, in that the employees covered by the agreement genuinely agreed to the agreement. The Commission found that the employer adopted a ‘very convoluted and indirect method of communicating fairly simple information to relevant employees about the time and place of voting and the method of voting by passing on information to supervisors who, in turn, were encouraged or asked to pass on that information to relevant employees’. The Commission provided the employer with seven days to provide a satisfactory undertaking to address the issue. The employer advised that they would not provide an undertaking and the application for approval was dismissed.

References

[1] Fair Work Act s.188(2).

[2] Revised Explanatory Memorandum to Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 at para. 47.

[3] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019).

[4] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 117.

[5] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 52.

[6] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 117.

[7] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 74.

Updated time

Last updated

24 May 2019

 

 

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      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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