Autumn 2016: Quarterly practitioner update

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Autumn 2016: 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 January 2016 and 31 March 2016.

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

Unfair dismissal matters

Appeal by Moyle against decision [[2015] FWC 8330] Re: MSS Security P/L

The appellant who was employed as security guard alleged that he was transferred to a new site and demoted, and that the demotion constituted a dismissal. At first instance, the Commission dismissed the unfair dismissal application on the basis that neither the reduction in the appellant’s remuneration or duties was significant, and that the appellant was still employed by the respondent.

On appeal, the appellant submitted that the Commission erred in requiring that there be a significant reduction in the appellant's remuneration and duties, and that the appellant was no longer employed by the respondent. The appellant further submitted that the respondent bore the responsibility of demonstrating that there had been no significant reduction in remuneration or duties and that the appellant remained employed.

The Full Bench agreed with the appellant that the Commission had erred in applying the legislative provisions, finding that the appellant cannot be required to disprove both limbs of the exception under s.386(2)(c) of the Fair Work Act. This would lead to the perverse result that a demotion could never amount to a dismissal, as an applicant would be required to demonstrate that they were no longer in the respondent’s employ. The Full Bench found that the approach taken by the Commission involved an appealable error of law and was satisfied that allowing permission to appeal was in the public interest.

Notwithstanding the error in the approach taken by the Commission, the Full Bench was not satisfied that any repudiation of the appellant’s contract of employment had occurred. The contract required the appellant to work in a security guard role at any site where the respondent held the contract, and stated that he would be paid for the role and required duties in accordance with the relevant industrial instruments. The Full Bench held that the transfer to a new location, and adjustment in duties and remuneration were consistent with the employment contract. The Full Bench found that there had been no repudiation of the employment contract and dismissed the appeal.

Read decision [2016] FWCFB 372

Appeal by Dale against decision [[2015] FWC 4970] Re: Hatch P/L

This matter related to an appeal against a decision and order dismissing an unfair dismissal application. Permission to appeal had been granted previously. The appellant submitted that the Commission had erred in concluding that their contract of employment was for a specified task. The appellant submitted that she was entitled to have her application determined on the merits and that her dismissal was unfair because she was not afforded her entitlements under the Fair Work Act and the relevant modern award.

The Full Bench considered the meaning of the term "contract of employment…for a specified task" in s.386(2)(a), finding that the "specified task" must be the task of the employee. A contract "for a specified task" must be identified in definite terms and entered into for the purpose of performance and completion of a task. The critical element was that the task is sufficiently definite in its nature and delineation such that identification of when it is completed is clear. The Full Bench did not accept the Commission’s finding at first instance that "task" meant the same thing as role, job or project.

The Full Bench found that the cause of the appellant’s termination was due to the decision of the respondent to restructure the workforce which resulted in the abolishment of the appellant's role. The Full Bench held that the abolition of the role did not constitute completion of the task. The Full Bench did not consider that the appellant was employed under a contract of employment for a specified task.

The Full Bench was not satisfied that the appellant's dismissal was harsh, unjust or unreasonable and found no reason to disturb the decision at first instance. The appeal was upheld and the order dismissing the unfair dismissal application confirmed.

Read decision [2016] FWCFB 922

The Association of Professional Engineers, Scientists and Managers, Australia v Mount Arthur Coal P/L

BHP Billiton made an announcement on behalf of the respondent on 8 March 2016 that they would be making employees redundant. The applicant alleged that the respondent failed to notify or consult them about the dismissals and as a result made an application to the Commission for an order regarding this failure. Meetings and the exchange of information did occur but this was not to the satisfaction of the applicant. It was not distinctly apparent to the Commission what additional information was being sought by the applicant.

At the hearing on 18 March 2016, the applicant sought orders from the Commission. The Commission ordered that the respondent hold off the notifications of the redundancies or redeployment offers until 22 March 2016 and that a meeting be held on 21 March 2016 to give the parties further opportunity for consultation.

Read decision [2016] FWC 1744 and read the order PR578159

Brown v Pentana Solutions P/L

The respondent to an application for relief from unfair dismissal raised a number of jurisdictional objections, including that the applicant earned over the high income threshold of $136,700. The applicant was paid $100,000 per annum in US dollars. There was some conjecture between the parties as to at what point in time the Commission should apply the relevant exchange rate to the applicant’s earnings. What the Commission needed to ascertain was the annual rate of earnings at the time of the dismissal on 31 October 2015, not the annual earnings up to that time (ie the amount earned in the 12 months before the dismissal).

The exchange rate on 30 October 2015 (31 October 2015 was a Saturday and no exchange rate was published by the Reserve Bank of Australia) was AUD $1 = USD $0.7099. On the basis of that exchange rate the applicant’s earnings of USD $100,000 at 30 October 2015 equated to AUD $140,864.91. The Commission was satisfied that, at the time of dismissal, the applicant earned in excess of the high income threshold. As the applicant was not protected from unfair dismissal it was not necessary for the Commission to consider the other objections. The application was dismissed.

Read decision [2016] FWC 1669

O’Connell v Catholic Education Office, Archdiocese of Sydney t/a Catholic Education Office, Sydney

In this case which was before a Full Bench, the respondent raised a jurisdictional objection to an unfair dismissal application on the basis that the applicant"s employment was not terminated on the respondent’s initiative. The applicant was a teacher whose job involved "child related work" for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) (Child Protection Act). The applicant was charged with the indecent assault of a person under the age of 16, making him a "disqualified person" under the Child Protection Act. The respondent submitted that due to s.9 of the Child Protection Act it was prohibited from "continuing to employ" the applicant in "child-related work" from the time that the applicant became a disqualified person, and that it terminated the applicant’s employment on that basis. The respondent submitted that it had no lawful alternative but termination of employment.

The Full Bench had to consider whether the applicant was dismissed under s.386(1).The Full Bench noted similarities with Mahony, in which an Appeal Bench found the continuation of employment inconsistent with the Child Protection Act. The Full Bench held that the ordinary meaning of words in s.9 of the Child Protection Act did not suggest an absolute bar on the continuation of employment. Section 9 of the Child Protection Act required only that a person who became a disqualified person due to pending proceedings not be utilised to perform child-related work, it did not require immediate dismissal. If the employer decided to dismiss an employee in such circumstances then the dismissal would be a termination of employment on the employer's initiative under s.386(1). The Full Bench was satisfied that the decision in Mahony was wrong. The Full Bench was not persuaded that the Child Protection Act required the termination of the applicant's employment. The Full Bench was satisfied that the applicant had been dismissed and the respondent’s jurisdictional objection was dismissed.

Read decision [2016] FWCFB 1752

Starr v Department of Human Services

Note: An appeal has been lodged against this decision and the order arising from this decision.

The applicant in this matter was a frontline Centrelink officer, he was dismissed after over 21 years’ service for misconduct due to comments he made from June 2012 to April 2015 on the social media sites Whirlpool and Sportal.

The Commission noted that the assessment of whether there was a valid reason for dismissal involved the consideration of the nature and gravity of the conduct, having regard to requirements of the Public Service Act 1999 (PS Act) and the Department's policies. Out of hours conduct will not usually be a valid reason for dismissal unless the conduct falls within the circumstances described in Rose v Telstra, however the scope of employer control over private conduct may be greater regarding public servants.

The Commission proceeded on the basis that if the conduct was a non-trivial breach of the PS Act, or any policy reasonably giving effect to it, then that conduct may constitute a valid reason for dismissal. The Commission found valid reasons for the dismissal based on:

references by the applicant to the Department's clients being "spastics and junkies", among other terms
comments to the effect that a large proportion of Newstart exemptions sought on the basis of depression were not genuine, and
statements that the Department's processing times were "utterly disgraceful", and that the applicant was "embarrassed to work there ... and there isn’t a damn thing those of us in the offices can do about it".

The Commission noted various mitigating factors favouring a conclusion that the dismissal was harsh, including:

that dismissal was disproportionate to the gravity of the misconduct
the given conduct bore no relationship to the applicant's actual work performance and caused no actual detriment to the Department, and
the given conduct was engaged in impulsively and comprised a small number of comments over a period of years.

The Commission found that the length and quality of the applicant's service, and the clearly and genuinely expressed remorse and regret by the applicant indicated that the conduct would not be repeated. The Commission held that the dismissal was harsh, despite the valid reasons. The Commission found that reinstatement was the practicable and appropriate remedy and that it was appropriate to make an order maintaining the applicant's continuity of employment and period of continuous service. The Commission made no order for lost remuneration as the applicant’s conduct was worthy of a significant disciplinary response, finding that the financial loss suffered by the applicant was a suitable sanction for the conduct.

Read decision [2016] FWC 1460

Registered organisations matters

Australian Manufacturing Workers' Union (AMWU) v ResMed Limited; ResMed Limited v Australian Manufacturing Workers' Union (AMWU)

Note: A judicial review of this decision is pending.

The Commission received two applications relating to the industrial representation of employees of ResMed Limited (Resmed). In the first application the AMWU sought Commission consent under s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act) to the addition of a new sub-rule to rule 1, Name Objects and Constitution, of the AMWU's Rules which specifically named employees employed by ResMed as eligible for membership. In the second application ResMed sought an order under s.137A(1)(b) of the RO Act that the AMWU was not to have the right to represent the industrial interests of employees employed by ResMed. The Full Bench held that the appropriate course was to first determine the AMWU rules application and then, by reference to the extent of the AMWU coverage which results from that determination, to determine the ResMed representation application.

ResMed’s business activities are the research, design and manufacture of medical devices for the treatment of sleep disordered breathing and cardio-respiratory disorders. The AMWU has had members employed by ResMed since at least 1996. At the time of the hearing the AMWU had 132 members, overwhelmingly Production and Warehouse employees or Manufacturing Equipment and Tooling Support (METS) employees in the Manufacturing Centre. No evidence was provided that the AMWU has, or has had, any members in the Innovation Centre or Gate House. ResMed has refused to recognise the AMWU as a representative of any of its employees (with the possible exception of METS employees)

AMWU rules application: Employees who may be characterised as employed in or in connection with the engineering and kindred trades are eligible to be members of the AMWU. There was no dispute that the AMWU has coverage of the METS employees however, outside of Production and Warehouse employees and METS employees, it is difficult to make definitive conclusions. Many of ResMed’s employees would be eligible to join the AMWU under the proposed rule changes.

The Full Bench was not satisfied there was any discretionary basis to entirely refuse consent to the rule alteration, however there were a number of discretionary considerations which would militate against granting consent to the AMWU’s rule alteration in its entirety. It was not considered appropriate to consent to the rule alteration to the extent it would extend the AMWU’s coverage to those parts of the business in the Innovation Centre, the Gate House or the Sleep Centre/Service Centre. Consent was granted to the rule alteration in part only, being employees engaged in that component of the ResMed business currently conducted in the Manufacturing Centre who are not managers. The Full Bench made directions for the parties to file and serve proposed rule changes and to make submissions in relation to the decision to consent to the rule alterations in part only.

ResMed representation application: A jurisdictional prerequisite for the making of an order under s.137A of the RO Act is that there be an actual, threatened, impending or probable dispute about the entitlement of an employee organisation to represent the industrial interests of employees. The Full Bench held that a "strong case" would be needed to justify the making of an order under s.137A to deprive an employee of the right to be represented by an organisation which he or she is eligible to join. The AMWU has been the only union which has endeavoured to provide employees of ResMed with industrial representation if they desire it. The Full Bench did not consider that there was any proper discretionary basis for the granting of the order under s.137A sought by ResMed. The ResMed representation application was dismissed.

Read decision [2016] FWCFB 22

Right of entry matters

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) – Victorian Branch

The Victorian branch of the AMWU applied for a right of entry permit for Mr Mavromatis. In an earlier decision in April 2015, the Commission had refused to issue a permit because it was not satisfied that Mr Mavromatis was a fit and proper person to hold a permit. Consistent with the Full Bench decision in Re Maritime Union of Australia, the imposition of conditions under s.515 of the Fair Work Act were not considered prior to making the April 2015 determination. Since Re Maritime Union of Australia however, the Full Court of the Federal Court of Australia held in MUA v FWC that consideration of whether conditions should be imposed on a permit should occur conjointly with consideration of whether the union official is a fit and proper person. Permission to appeal against the earlier decision regarding Mr Mavromatis’ permit was granted by the Full Bench of the Commission and the matter was referred back for determination in accordance with the decision in MUA v FWC.

Mr Mavromatis' permit had been revoked in 2003 owing to his conduct. In support of the application for a new permit, Mr Mavromatis proposed that the Commission issue a permit with a number of conditions. In support of the application, the AMWU submitted that Mr Mavromatis was no longer given to the outbursts that led to the initial revocation of his permit, and that Mr Mavromatis should be granted a permit subject to conditions.

The Director of Fair Work Building Industry Inspectorate submitted that Mr Mavromatis' behaviour had demonstrated that he was not a fit and proper person to hold a permit. The Director further submitted that if the Commission did decide to grant Mr Mavromatis a permit, any conditions imposed would need to be very strict.

The Commission was not satisfied that Mr Mavromatis was a fit and proper person to hold a permit, finding that that Mr Mavromatis was aware of his legal obligations but nevertheless had behaved in a way that demonstrated a complete contempt for the law. Nor was the Commission satisfied that there were any conditions that could be reasonably imposed to address these concerns. The application for a permit was refused.

Read decision [2016] FWC 21

Appeal by Construction, Forestry, Mining and Energy Union against decision [[2015] FWC 3694] Re: Central Queensland Services P/L t/a BHP Billiton Mitsubishi Alliance

In this matter the appellant and Central Queensland Services P/L t/a BHP Billiton Mitsubishi Alliance (CQS) could not agree upon a room or area of the premises in which a permit holder was to conduct interviews or hold discussions with employees. The appellant sought a declaration that the crib rooms of Dragline 34 and Dragline 35 were rooms or areas in which discussions may be held under s.492(3) of the Fair Work Act where agreement on location cannot be reached. At first instance the Commission found that the appellant was not entitled to hold discussions in Draglines (a dragline excavator is a piece of heavy equipment used in mining).

The grounds of appeal advanced were:

that the Commission’s interpretation of s.492(3)(b) was contrary to the grammatical meaning of the words, inconsistent and contrary to purpose of the provision, and inconsistent with the objects of the Fair Work Act
that the Commission was wrong in failing to interpret s.492(3)(b) as meaning that if the purpose of an area or room was considered appropriate for the purpose of taking meal or other breaks by an occupier, that area, so long as the persons to be interviewed or participating in discussions ordinarily took meal or other breaks in that room or area, was appropriate for them to be interviewed or hold discussions with a permit holder, and
that the Commission was wrong in failing to find that the purpose of an area or room that was provided to employees which contained all the things that are associated with eating meals or taking other breaks, that are usually found in such an area, was provided by their employer so that they could take their meal and other breaks.

The appellant submitted that it was in the public interest to grant permission to appeal because:

the matter concerned an important question concerning the rights of permit holders and the rights of employees to participate in discussions
the matter concerned an important question about the proper construction of s.492(3)(b), and
the matter had significant consequences for permit holders, occupiers of premises and employees and employers generally, and for the mining industry especially.

As this was the first time since the enactment of the current s.492 that a Full Bench has been called upon to interpret the section, the Full Bench found that it was in the public interest that permission to appeal be granted.

The dispute centred on the requirements of s.492(3)(b). The Full Bench held that the broad language of the section must be given its ordinary and natural meaning. The use of an area for multiple purposes does not deprive it of the description in s.492(3)(b). The key consideration was the purpose or purposes of providing the area from the employer’s perspective, and as the area was provided, in part, for the taking of meal and other breaks it satisfies the description in s.492(3)(b). The Full Bench concluded that a permit holder may conduct an interview or hold discussions in the specified locations. The appeal was allowed and the decision at first instance quashed.

Read decision [2016] FWCFB 288

Enterprise bargaining matters

Appeal by LCR Mining Group P/L against decision [[2015] FWC 7970] Re: Construction, Forestry, Mining and Energy Union

In the decision at first instance, an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for bargaining orders against LCR Mining Group P/L (LCR) under s.229 of the Fair Work Act was granted. LCR appealed against the findings that it was not meeting the good faith bargaining requirement to attend and participate in meetings under s.228(1)(a), and that it was reasonable to make a bargaining order under s.230.

The Full Bench found that the interpretation of "meeting" and "attending" for the purposes of ss.228 and 230 was an important matter with broad implications, particularly regarding the Commission’s role in facilitating bargaining and granting permission to appeal.

The Full Bench found that the interpretation that a teleconference or videoconference could not constitute a "meeting" or qualify as "attending" for purposes of s.228(1)(a) conflicted with the principle that in the absence of clear necessity, words of limitation should not be read into legislation where they do not appear. There would be adverse consequences for parties if restrictive interpretation of the Fair Work Act prevented the use of conferencing technologies in the bargaining process. In the absence of express words of limitation, "meeting" and "attending" must be given a contemporary meaning to encompass "meetings of the mind".

The Full Bench held that the interpretation of s.228(1)(a) at first instance was too restrictive and inconsistent with the objects of the Fair Work Act. The appeal was upheld, the decision at first instance quashed and the order set aside.

Read decision [2016] FWCFB 400

Maritime Union of Australia, The v Maersk Crewing Australia P/L

An application for a protected action ballot order (PABO) was heard by Williams C. During the course of the hearing, Maersk applied for the matter to be referred to a Full Bench pursuant to s.615A of the Fair Work Act. The Full Bench was asked to determine the various legal issues around the proper construction of ss.437(1) and (2A) and the meaning of "notification time". The matter would then be remitted to Williams C for the determination of the PABO application.

Maersk contended that, properly construed, s.437(2A), read with s.437(1), meant that an application for a PABO cannot be made before the "notification time" for a proposed enterprise agreement. The Full Bench was not persuaded that s.437(2A) requires that there has been a notification time in respect of an enterprise agreement proposed by a PABO applicant. The legislative purpose in enacting s.437(2A) in the Fair Work Amendment Act 2015 (Cth) was to ensure protected industrial action cannot be taken until after bargaining has commenced. The Full Bench found that a consequence of the construction proposed by Maersk was that by not agreeing on the scope of a proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained a majority support determination, scope order or low paid authorisation. The Full Bench held that such a consequence was inimical to the scheme of the Fair Work Act. Maersk's construction of ss.437(1) and (2A) could produce outcomes which are plainly contrary to the scheme of the Fair Work Act and the purpose of s.437(2A) in that an employer could deny its employees the right to engage in protected industrial action simply by failing to give a valid notice of employee representational rights (NERR), even though the employer had agreed to bargain or had initiated bargaining for an enterprise agreement with those employees.

The Full Bench held that s.437(2A) was enacted for a limited purpose, that being to overcome the effect of the decision in J.J. Richards and ensure protected industrial action cannot be taken until after bargaining has commenced. The Full Bench rejected the Maersk contention that because the "notification time" in s.173(2) triggers a requirement for the employer to give the NERR in respect of a proposed enterprise agreement, the Commission cannot issue a PABO unless the employer has given a valid NERR for the proposed enterprise agreement. The application for a PABO was remitted to Williams C for determination.

Read decision [2016] FWCFB 1894

Procedural matters

Appeal by Diotti against decision [[2015] FWC 7659] and order and [PR573703] Re: Lenswood Cold Stores Co-op Society t/a Lenswood Organic

In the decision at first instance the Commission dismissed an application for extension of time to file an unfair dismissal application. The unfair dismissal application was filed two days out of time. The appellant was aware her application was required to be lodged within 21 days and informed United Voice 17 days after her dismissal. The union did not act until two days beyond the 21 day time limit as the case had been transferred from one union official to another. The basis of the appeal was that the Commission failed to pay sufficient regard to the reason for the delay being representative error, and focused on the appellant’s conduct prior to instructing her representatives.

The Full Bench found that there was a 17 day period where the appellant did nothing to pursue her unfair dismissal application. The circumstances from the time of the dismissal must be considered in order to determine whether there was a reason for the delay beyond the 21 day period. The Full Bench held that representative error did not provide an inviolable reason amounting to exceptional circumstances. The Full Bench concluded that an arguable case of appealable error had not been made out and permission to appeal was refused.

Read decision [2016] FWCFB 349

Post v NTI Limited t/a NTI

In this case, the applicant made an application for unfair dismissal. At first instance the Commission dismissed the application finding that the applicant had engaged in serious misconduct and that his dismissal was not harsh, unjust or unreasonable. The application was dismissed on 9 July 2015. The respondent filed an application for an order for costs under both ss.400A and 611 on 23 July 2015.

The applicant lodged an appeal against the decision at first instance on 30 July 2015. On 16 October 2015, the Full Bench dismissed the appeal, finding that there was no significant error in the findings made by the Commission at first instance, and that there was no other public interest ground for granting permission to appeal. The applicant then commenced proceedings in the Federal Court of Australia for a judicial review, seeking to set aside the order of the Full Bench. The applicant subsequently discontinued this application on 2 February 2016.

The respondent's application for an order for costs was limited to consideration of the costs incurred by the respondent in responding to the substantive unfair dismissal remedy application, not the subsequent applications. The respondent sought costs on an indemnity basis.

The Commission was satisfied that the unfair dismissal application was made without reasonable cause. The Commission held that it should have been reasonably apparent to the applicant that his application was hopeless and was so lacking in merit as to not be reasonably arguable. The Commission was satisfied that the unfair dismissal application had no reasonable prospect of success and that the grounds for a costs order had been made out by the respondent under s.611.

At the conciliation conference on 5 December 2014, the applicant rejected a settlement offer from the respondent. The applicant rejected four further settlement offers between then and 17 February 2015. The respondent submitted that on each occasion the applicant rejected one of the respondent's offers of settlement, this rejection was an unreasonable act in connection with the continuation of the matter which caused the respondent to incur costs. The Commission found that the applicant was unwilling to, or unable to, objectively assess the merits of his application. Rejecting the various settlement offers was an unreasonable act. The Commission was satisfied that under s.400A the applicant should be ordered to pay the costs incurred by the respondent from 5 December 2014.

The Commission ordered that the applicant pay the respondent's costs on an indemnity basis, however the applicant was not required to pay any element of the respondent's costs twice.

Read decision [2016] FWC 1059

Appeal by David Armstrong against decision [[2015] FWC 4879] Re: Taxation Management Services P/L atf TMS

This matter relates to an application for costs by the respondent against the appellant who brought an unsuccessful unfair dismissal application. The unfair dismissal application was dismissed at first instance. On appeal, the Full Bench held that "new evidence" presented by the appellant did not alter the validity of the decision at first instance. The Full Bench further found that the “new evidence” that the appellant had presented on appeal had been falsified.

The respondent submitted that a costs order should be made because:

the applicant's fabricated evidence constituted an unreasonable act or omission
the commencement of the appeal on the basis of fabricated evidence meant that the appeal was vexatious and commenced without reasonable prospects of success, and
it should have been apparent to the applicant that the appeal had no reasonable prospects of success.

The Full Bench was satisfied that the appeal was, to a large extent, based on the fabricated documentary evidence and the dishonest oral evidence the appellant subsequently gave in relation to that documentation. That evidence sought to challenge the key findings of the Commission in the decision at first instance. The costs of the appeal were clearly incurred because of the appellant's unreasonable act. The Full Bench was satisfied that the basis for a costs order had been established and made an order for costs.

Read decision [2016] FWCFB 1179

Road Safety Remuneration Tribunal

Road Safety Remuneration Repeal Act 2016

On 19 April 2016, the Road Safety Remuneration Repeal Act 2016 (Cth) received royal assent.

Accordingly, on 21 April 2016 the Road Safety Remuneration Tribunal ceased to operate or perform any of the functions prescribed to it by the Road Safety Remuneration Act 2012 (Cth).

Key court reviews

This section provides summaries of a number of Federal Court reviews of Commission decisions.

Gregory v Qantas Airways Ltd [2016] FCAFC 7

Matters reviewed: [2015] FWC 1154 and [2015] FWCFB 2599

A Full Federal Court has held that a Full Bench of the Commission fell into error when it determined that the findings of the Commission at first instance were "reasonable and open" to it and then refusing permission to appeal. The Court found that counsel for the appellant had had no chance to develop submissions about the evidence regarding the employee's knowing consumption of alcohol and cannabis, or whether that employee's termination was disproportionately harsh. The Court found that, as no evidence on the merits of the appeal had been heard by the Full Bench, the Full Bench was not in a position to make such findings.

The Court dismissed the application so far as it alleged jurisdictional error by the Commission at first instance, however it quashed the Full Bench decision and ordered that it be remitted for determination according to law.

Read the Federal Court decision [2015] FCA 7

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 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 for each award has been created.

A statement and exposure drafts were published inviting interested persons to comment on the proposal to move the coverage of employees in the vehicle manufacturing industry from the current Vehicle Manufacturing, Repair, Service and Retail Award 2010 to the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing award). An issue in relation to an electrical licence allowance in the Manufacturing award and the Electrical Power Industry Award 2010 was also determined [[2016] FWCFB 1294].

Further submissions were received in relation to the Penalty Rates Case and a decision was issued regarding the admissibility of the Productivity Commission's Final Report (see penalty rates summary below). In response to a call for contributions by persons other than parties to the matter, nearly 6000 comments on the claims to vary penalty rates in awards in the retail and hospitality sectors were received. Where permission was received to publish these contributions, they have been collated and published on the Commission’s website as Contributions 1–5845 (PDF).

Penalty rates

As a part of the 4 yearly review of modern awards the Commission is dealing with a number of applications to vary penalty rates in various awards in the hospitality and retail sectors. Some employer parties have applied for the Productivity Commission, Workplace Relations Framework, Final Report (the Final PC Report) to be admitted into evidence in the penalty rates case.

These employers intend to rely on Chapters 9, 10, 11, 12, 13, 14, 15 and Appendix F of the Final PC Report which relate to long hours and night work, the level of weekend penalty rates and the Australian demographic. The Full Bench considered the nature and context of the 4 yearly review. The Full Bench was satisfied that the identified parts of the Final PC Report were relevant to the 4 yearly review, finding material of this nature has been considered by the Commission and its predecessors in the past. The Final PC Report was referred to by a number of witnesses who have given evidence in the hearings for the 4 yearly review.

The Commission may use relevant information as it sees fit. The opinions expressed by the Productivity Commission will be accepted as submissions, not evidence. The Final PC Report was not sought to be tendered as expert opinion evidence and the request was considered on that basis. The relevant chapters were admitted as common evidence and may be relied on in respect of each award.

Read decision [2016] FWCFB 965

Alleged NES inconsistencies

Submissions filed by the Fair Work Ombudsman and a number of other parties identified provisions in the modern awards which the parties contended were inconsistent with the National Employment Standards (NES).

The Commission published draft determinations of proposed variations to the modern awards remedying the identified inconsistencies, and invited submissions on these draft determinations. Submissions were received regarding the:

Pastoral Award 2010
Building and Construction General On-site Award 2010, and
Plumbing and Fire Sprinklers Award 2010.

Australian Business Industrial and the New South Wales Business Chamber Ltd (ABI and NSWBC) submitted that they anticipated the identified provisions would be removed entirely and that this should occur. ABI and NSWBC further submitted that the provision identified within the Pastoral Award 2010 operated to extinguish an express right conferred by s.384 of the Fair Work Act. The Housing Industry Association submitted that, regarding the Building and Construction General On-site Award 2010, an inconsistency existed between the decision and the draft determination, whereby the identified provision was not removed but additional words were inserted.

The Full Bench only ever contemplated the removal of relevant clauses to the extent necessary to remedy the identified NES inconsistencies; the draft determinations were consistent with this intention. With regard to the draft determination for the Pastoral Award 2010, the Full Bench only intended to rectify the identified NES inconsistency. If parties are seeking any further changes to the clause then a formal application should be made. Final determinations were issued on 12 January 2016 in the same terms as the draft determinations.

Read decision [2015] FWCFB 191

Plain language pilot

The Commission has recently concluded a pilot to create a plain language draft of the Pharmacy Industry Award 2010 that is simpler and easier to understand than the current award. A report from the pilot (PDF) has been published on the Commission's website.

As foreshadowed at the commencement of the pilot in a Statement of 22 September 2015, the plain language draft generated from the pilot will be subject to Full Bench proceedings.

Resources & initiatives

Benchbooks

Unfair dismissal benchbook updated

The Commission has published an updated version of the Unfair dismissals benchbook. The benchbook is a plain English guide to the principles of unfair dismissal law under the Fair Work Act and how these have been applied in Commission decisions. The updated version incorporates added subject areas and recent case law, and is currently available as a downloadable PDF (with an online version under development).

Practice notes

The Appeal proceedings practice note provides a general explanation of appeal rights, and sets out the procedures followed by the Commission when listing, hearing and determining appeals.

The Fair hearings practice note provides procedural guidance and information about the conduct of hearings before the Commission, including the responsibilities of Commission Members, applicants, respondents and their representatives.

The Unfair dismissal proceedings practice note provides procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which do not settle at or which do not proceed to conciliation conducted by conciliators.

Events

Workplace Relations Education Series

The Workplace Relations Education Series consists of three initiatives:

workplace relations lectures
mock hearings, and
an invited paper series.

Workplace relations lecture – Monday, 16 May 2016 in Melbourne

The next lecture in the series, The Fair Work Commission and the anti-bullying jurisdiction, will be presented by Commissioner Hampton, Panel Head of the Commission's anti-bullying jurisdiction.

A Panel chaired by Justice Iain Ross AO, comprising Commissioner Hampton, Associate Professor Anna Chapman Melbourne Law School, Mr Josh Bornstein, Head of National Employment Relations Group at Maurice Blackburn lawyers and Mr Steven Amendola, partner at Ashurst lawyers Melbourne Office will explore the range of challenges and issues associated with the anti-bullying jurisdiction.

Recordings of previous lectures and other events are available for viewing on our YouTube channel.

Mock hearings – Tuesday, 17 May 2016 in Melbourne

The Commission will be holding mock hearings in Melbourne on 17 May 2016 as part of Law Week 2016. The Commission's President, Justice Iain Ross AO and Members of the Commission will preside over a mock general protections and a mock unfair dismissal case.

Videos of the mock hearings are available for viewing on our YouTube channel.

General update

Updates to approved forms published

The Commission has published approved amendments to forms for a range of matters including costs, unlawful termination, protected action ballots, anti-bullying and New Approaches.

The amended forms are:

The changes are designed to improve accessibility and provide consistency of information across the forms. The forms came into effect on 23 March 2016, except for the F42 and F79 which came into effect on 1 April 2016.

General Manager's report

On 22 February 2016 three General Manager's reports were tabled in the House of Representatives. The reports relate to the General Manager's three yearly reporting requirements under s.653 of the Fair Work Act.

The reports are into:

A qualitative research study commissioned to inform the NES report was also published: A qualitative study of the circumstances and outcomes of the National Employment Standards Right to Request provisions (PDF).

Quarterly statistical reports

The Commission's quarterly statistical reports for the 2nd quarter of 2015–16 are now available.

The reports can be accessed from the Quarterly reports page on our website. They cover the period from 1 October 2015 to 31 December 2015.

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

New Fair Work Commission website

A new Fair Work Commission website is expected to be launched in mid May.

The changes we will make to our website have been prioritised based on the feedback we received from both the general public and stakeholders during our usability review process earlier this year.

As a result of this review our focus is on improving four major areas of the website including:

a single entry point to search for Commission documents
improved navigation
a redesigned information architecture, and
reduced duplication of content.

More information, including quick links to help regular users change any bookmarked pages, will be sent to website subscribers the week before the new site goes live and located prominently on the new site.

In order to support the changing needs of our website users, we will continue to review and update our site on a regular basis and would appreciate any feedback on how we can continue to improve the site. There is a feedback form on most website pages.

Workplace Advice Clinic – New pilot program

The Commission has joined with JobWatch and Springvale Monash Legal Service in a pilot program to provide free legal assistance to applicants seeking employment law advice in Melbourne. The Commission will not provide any legal advice, this will be the responsibility of the lawyers from the community legal centres (CLCs).

The two CLC lawyers will provide their services free of charge to self-represented or unrepresented applicants seeking guidance about unfair dismissal or general protections matters. The lawyers will provide important information and assistance to clients with the aim of determining whether an application should be filed in the Commission, lodged in another jurisdiction, or not pursued in any form.

All costs associated with providing duty lawyers for the pilot program will be borne by the Community Legal Centres.

The service will be facilitated by the Commission with the clinic operating in the Commission’s office on level 4 on Wednesday and Thursday mornings from 9.30am to 1.30pm. Registry staff will schedule appointments for clients to meet with the lawyers.

The pilot program commenced in Melbourne on 4 May 2016 and will be reviewed regularly to ensure we are meeting the needs of the parties.

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.

Updated time

Last updated

11 May 2016

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