Welcome to the Fair Work Commission’s quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
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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 15 Commission decisions issued between 1 January 2017 and 31 March 2017.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
In this unfair dismissal application the applicant was demoted from his position as the site manager for the Commonwealth Bank Branch at Olympic Park in Sydney. The demotion followed a complaint from another employee where the applicant was accused of failure to follow company policies, failure to communicate, and an inability to fulfil the requirements of site manager. The applicant was provided with a new employment contract. The applicant refused to accept the demotion and alleged that the demotion was a termination of his contract of employment because there was a substantial change to his remuneration (from $75,000 to $41,797 per annum), duties and location of work. In the alternative, the applicant submitted he was forced to resign by the conduct of the respondent. The respondent submitted that the demotion did not result in dismissal because the employment contract permitted demotion, and further submitted that the applicant had resigned voluntarily.
The Commission considered that an applicant claiming forced resignation must show they had no real choice but resignation [Mohazab]. The Commission held that the demotion of an employee, where that demotion is provided for in a contract of employment or industrial instrument, cannot constitute, by itself, a dismissal [Moyle], [Singh]. While the applicant’s demotion involved significant reduction in remuneration or duties for the purposes of s.386(2)(c)(i) of the Fair Work Act, this section is an exception to the general definition of dismissal in s.386(1) and will not apply if demotion is provided for in employment contract. The Commission found it was necessary to consider the general provisions in s.386(1). The Commission found no intention to dismiss the applicant by the respondent. The respondent did not end the employment relationship as it demoted the applicant pursuant to the employment contract, which provided for demotion from the specific position and location named in the contract because of ‘performance’ or client request. The Commission found no repudiation of the contract by the respondent, finding the applicant had resigned. The Commission was satisfied that the allegations against the applicant were substantiated and the respondent’s investigation process was satisfactory. The Commission found that the resignation did not satisfy the requirements of s.386(1)(b) and the unfair dismissal application was dismissed.
In this matter the seven appellants sought permission to appeal against the Commission’s decision to dismiss their unfair dismissal applications. The Commission found that each dismissal was a case of genuine redundancy. The Full Bench found that the appeal raised important questions concerning the application of s.389(2) of the Fair Work Act and granted permission to appeal. In particular, regarding circumstances where the consideration of a swap of the positions of persons identified for retrenchment with persons who were open to a voluntary redundancy had been raised as a possibility by an employer, or was a possibility sought by persons identified for retrenchment.
The grounds for appeal included that the Commission erred in finding each of the dismissals were a case of genuine redundancy and that it would not have been reasonable for the respondent to redeploy the appellants. In determining whether it would have been reasonable to redeploy the appellants, the Full Bench held that a number of relevant factors might need to be considered. In Ulan the required qualifications for the position, the skills, qualifications and experience of the employee, the location of the position and the level of remuneration were all identified as relevant matters. The Full Bench considered these to be only a sample of the matters that might be considered.
The Full Bench held there was no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy. However the Full Bench found that the possibility of swaps should have been considered, and that the respondent’s failure to do so, by removing that option from consideration altogether, resulted in the respondent having failed to comply with its obligations under s.389(2). The Full Bench was not satisfied that the respondent did all that it was required to do, in determining whether it would have been reasonable in all the circumstances, to redeploy a person whose position was redundant by allowing that person to swap with another employee who wished to accept redundancy. The Full Bench was not satisfied that the dismissal of the appellants was a case of genuine redundancy. The Full Bench allowed the appeal and quashed the Decision at first instance. The applications will be referred to Commissioner Johns for rehearing.
In this matter the applicant filed his application for relief from unfair dismissal on 8 February 2016. The respondent filed a jurisdictional objection alleging the application was filed out of time. Notwithstanding this objection, the matter proceeded to conciliation but was not settled. Following the unsuccessful conciliation the jurisdictional objection was upheld at a hearing. The Commission found that the dismissal took effect on 14 January 2016 and that the applicant’s unfair dismissal remedy application was filed on 8 February 2016, four days after the 21-day period prescribed by s.394(2)(a) of the Fair Work Act. The Commission was not satisfied that there were exceptional circumstances warranting the grant of an extension of time under s.394(3) [ FWC 4623].
The applicant successfully appealed that decision, the Full Bench finding that the letter of termination relied upon by the respondent gave two alternative conditional dates of dismissal. The Full Bench held that the dismissal took effect not earlier than 18 January 2016 and that the unfair dismissal application was lodged within the 21-day period prescribed by s.394(2)(a), and therefore no extension of time under s.394(3) was required. The appeal was upheld and the order and decision quashed. The applicant’s original application for unfair dismissal was referred back to the Commission for arbitration [ FWCFB 5500].
The applicant had been employed since 31 May 1982. Immediately prior to his dismissal he was employed as a Customer Service Team Leader at Central Station. Over the course of his employment, the applicant received numerous sanctions for breaches of the respondent’s code of conduct, including seven fines, six suspensions and three final warnings. The unfair dismissal application related to the applicant’s unauthorised absence, his behaviour relating to an incident involving a colleague, Mr Singh, and the applicant’s allegations against a number of his colleagues. The Commission held that the applicant’s unauthorised absence, as well as his behaviour in the incident with Mr Singh, were not ultimately the reasons the respondent relied upon to terminate the applicant’s employment. The applicant was dismissed because of extremely serious and unsubstantiated allegations of corruption, bullying, victimisation and harassment directed by the applicant towards his colleagues in letters of 22 May, 25 June and 23 July 2015. The applicant did not offer evidence to support his allegations.
The Commission held that it was reasonable to infer that the applicant had made the allegations vexatiously, not because of some rational basis for believing them to be true, but in order to divert attention away from his own misconduct. The Commission found that there was a valid reason for the applicant’s dismissal and that procedural fairness had been afforded by the respondent. The Commission found that the respondent did its best to investigate the applicant’s allegations. The Commission commented that ‘whistleblowers’ have an important role to play in our society, which deserves protection, however this principle assumes that the ‘whistleblower’ is acting in good faith. It is not a licence for employees to act in irresponsible manner. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.
The applicant in this matter worked as a casual food employee and bar attendant at the Park Beach Bowling Club Limited (the Club). The application for an order to stop bullying was made against the CEO and the Administration and Events Manager as persons the applicant alleged engaged in bullying behaviour. The applicant also sought an order that a warning issued to her by the Club on 18 October 2016 be withdrawn or retracted.
The Commission considered the test for what constitutes bullying under the Fair Work Act. The Commission held that the test was objective, and that behaviour is unreasonable if a reasonable person, having regard to the circumstances, may consider it to be unreasonable. It is apparent from the reference to ‘repeatedly’ in s.789FD(1) of the Fair Work Act that a one-off incident will not be a sufficient basis for the making of an application to the Commission [Re SB]. Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of ‘repeated’ behaviour, nor does the same specific behaviour have to be repeated [GC]. It is necessary to also undertake an objective assessment of the action to determine whether the action constitutes ‘reasonable management action’ [Re SB].
The applicant’s allegations of bullying behaviour were limited to four instances:
Evidence was given in the proceedings in relation to some of the ways in which the applicant refused to obey directions given to her by supervisors and managers at work. The Club accepted that the warning letter dated 18 October 2016 was not appropriate and was an unreasonable disciplinary measure. The Commission found that the warning letter issued to the applicant by the Club Chairman was unreasonable behaviour, and was not reasonable management action carried out in a reasonable manner. Having considered the other allegations by the applicant, the Commission was not satisfied there had been any repeat of any unreasonable behaviour towards the applicant by any individual or group of individuals at work. The Commission found that the applicant had not been bullied at work within s.789FD. The application was dismissed.
In this mater the Commission at first instance determined that the appellant’s general protections application was prohibited by s.725 of the Fair Work Act and dismissed her application. The Full Bench considered the role of the Commission in s.365 applications and concluded that the Commission is authorised and empowered to decide whether a general protections dismissal application can be prohibited by s.725. The appellant had lodged a complaint with the Australian Human Rights Commission (AHRC) against her former employer before lodging her general protections application. The appellant did not contest the Commission’s finding that her general protections application was made after her AHRC complaint had been made, but she did challenge the Commission’s conclusion that her general protections application was in relation to her dismissal.
The appellant relied on five grounds of appeal:
The Full Bench was satisfied that the Commission applied the correct statutory purpose to s.725. The Full Bench was also satisfied that the Commission applied the proper test to reach the conclusion that the appellant’s general protections application was barred by the operation of s.725. The Full Bench was satisfied that the appellant was required to make an election between the remedies available to her under the Fair Work Act and those available under the Australian Human Rights Commission Act 1986 (Cth). The Full Bench did not consider that the fact that there may be different respondents to different applications or complaints is determinative of the question of whether such applications or complaints relate to the dismissal of the employee. The Full Bench was satisfied that the Commission did not err in any of the ways contended by the appellant in relation to the finding that the appellant’s general protections application was an application in relation to her dismissal, with the result that it was barred by s.725. The appeal was dismissed.
At first instance the Commission found it had jurisdiction to arbitrate a dispute between Mr Crawford and Broadspectrum Australia P/L (Broadspectrum) under the Transfield Services Limited (Maintenance Services – Wyee) Collective Agreement 2011 – 2015 where Mr Crawford was no longer an employee of Broadspectrum. The Commission also found that Mr Crawford was not entitled to overtime for training attended during overtime hours. Both the Construction, Forestry, Mining and Energy Union (CFMEU) and Broadspectrum lodged respective appeals against parts of the decision at first instance.
Broadspectrum’s appeal concerned the Commission’s jurisdiction to arbitrate the dispute. At first instance the Commissioner decided that the Commission had jurisdiction to hear the dispute, notwithstanding that Mr Crawford was no longer an employee of Broadspectrum. The Full Bench was of the view that Broadspectrum’s submissions concerning the Commission’s jurisdiction raised important questions pertaining to the rights arising from enterprise agreements. On this basis permission to appeal with respect to the dispute over jurisdiction was granted by the Full Bench. The question to be answered was whether, pursuant to s.739 of the Fair Work Act, the Commission has the jurisdiction to deal with a dispute concerning a former employee.
Jajoo is authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated. This is consistent with the finding in Wollongong. The Full Bench held that whilst they do not need to adhere to the precedent of Jajoo and Wollongong, the Full Bench should only depart from precedent if it is persuaded there is sufficient reason to do so. Broadspectrum pointed to findings in Patrick Projects and Kentz in support of its assertion that the Full Bench ought to depart from Jajoo and Wollongong. The Full Bench was not persuaded that the findings in Patrick Projects and Kentz were sufficient reasons to depart from Jajoo and Wollongong. The Full Bench was not persuaded that the Commission erred in its jurisdiction when finding that the dispute was to be arbitrated by the Commission, finding that the terms of the agreement did not oust the jurisdiction of the Commission to deal with the dispute. The Full Bench was satisfied that the Commission had jurisdiction to deal with the dispute. The Broadspectrum appeal was dismissed.
The CFMEU’s appeal regarded whether compulsory training is to be deemed ‘work’ within the meaning of the agreement and therefore whether Mr Crawford was entitled to overtime pay. The agreement provides that overtime rates will be paid for ‘work’ that is performed outside of ordinary hours. The CFMEU asserted that if training constitutes ‘work’ then training in overtime attracts overtime pay. At first instance the Commission found that training was not ‘work’ and that training conducted outside of ordinary hours did not attract overtime pay. The Commission noted a longstanding distinction between work and training, relying on the decision of Excelior which was followed in United Voice as authority for that proposition. The question to be considered by the Full Bench was whether the Commission erred in finding that training was not ‘work’ for the purposes of the agreement. The Full Bench believed that the appeal raised important questions of construction and interpretation of the agreement and held that the dispute was a matter of public interest. Permission to appeal was granted.
The grounds of appeal advanced by the CFMEU included that the agreement contained no definition of ‘work’ or ‘training’ which created an ambiguity; and that the decisions relied on by the Commission turned upon their own facts which were distinguishable from those before the Commission at first instance. The Full Bench found that Excelior was distinguishable from the present case, and that United Voice exemplified that whether the definitional distinction between work and training ought to be read into a clause of an enterprise agreement depends upon the application of the principles outlined in Golden Cockerel. The Full Bench considered that an employee who attends training at the direction of his or her employer outside of ordinary hours is carrying out ‘work’ and is entitled to overtime remuneration. The CFMEU appeal was upheld and the decision at first instance quashed. The Full Bench held that Mr Crawford was entitled to overtime remuneration for the training that he undertook outside of ordinary hours.
The appellant in these matters applied for permission to appeal and appealed three decisions approving enterprise agreements made by three different employers and their employees. The decisions, and the enterprise agreements to which they relate, are:
The appellant applied for the appeals to be heard together on the basis that they involved common factual and legal issues. This request was resisted by the respondents (MMA Offshore Logistics P/L (MMAOL), DOF Management Australia P/L (DOF) and Smit Lamnalco Australia P/L (Smit Lamnalco)), the Full Bench determined that the appeals would be heard sequentially.
At the outset of the hearing of the first appeal, a member of the Full Bench raised with the parties an issue potentially affecting whether the DOF Agreement and the Smit Lamnalco Agreement were capable of approval under the Fair Work Act. The issue had not been raised by the appellant. The issue was whether in each case a Notice of Employee Representational Rights (NERR) had been provided to employees who would be covered by the relevant agreement in accordance with the requirement contained in s.174(1A) of the Fair Work Act. The appellant sought leave to amend its notices of appeal with respect to the DOF Decision and the Smit Lamnalco Decision. The alleged defect in the NERR in each case was that it had not complied with the prescribed form in Schedule 2.1 of the Fair Work Regulations 2009 (Regulations). The prescribed form required the telephone number of the Fair Work Commission Infoline (1300 799 675) be inserted, but the NERR in each case had a different telephone number inserted, being that of the Fair Work Ombudsman (13 13 94). The Full Bench received written submissions from the parties concerning whether the appellant should be granted leave to amend its notices of appeals. After the Full Bench had received those submissions, a Full Court of the Federal Court delivered its decision in Aldi, which was concerned in part with the effect of s.174(1A) and the consequences of a failure to issue an NERR in accordance with the prescribed form. The parties requested and were provided with an opportunity to file further written submissions in light of the decision in Aldi. The NERR prescribed by Schedule 2.1 does not actually set out the telephone number of the Fair Work Commission Infoline, but requires that number to be inserted. The Full Bench noted that the Commission’s website has at all relevant times contained a guide to completing and issuing the NERR, which identifies the Fair Work Commission Infoline phone number as being 1300 799 675, and contains a sample NERR which includes that telephone number.
The matters agitated by the appellant in the appeals may be placed in three categories:
‘Confidence in the agreement approval process’ may be a significant matter weighing in favour of permission to appeal in respect of an appeal against a decision to approve an enterprise agreement, and that this may outweigh the fact that arguments proposed to be advanced in the appeal were not agitated at first instance [Hart]. In respect of the ‘common issue’ under appeal (grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal, and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal) the Full Bench considered that permission to appeal should be granted. Further, the Full Bench admitted new evidence which the appellant sought to adduce in support of these grounds of appeal. The Full Bench also considered that permission to appeal should be granted in respect of grounds 1 and 2 of the MMAOL Agreement Decision appeal, ground 1 of the DOF Agreement Decision appeal and grounds 1 and 2 of the Smit Lamnalco Agreement Decision appeal. Permission to appeal was refused in relation to grounds 5 and 6 of the MMAOL Agreement Decision appeal and grounds 5 and 6 of the Smit Lamnalco Agreement Decision appeal. In relation to the additional ground concerning the NERR issue sought to be raised in the DOF Agreement Decision appeal and the Smit Lamnalco Agreement Decision appeal, the Full Bench granted the appellant leave to amend its notice of appeal to add the additional ground in each case, and granted permission to appeal in respect of that ground.
With respect to the common issue, the Full Bench held it was necessary to make three significant observations about the statutory scheme for enterprise bargaining in the Fair Work Act:
The appellant’s contention was that the three agreements came about as a result of a scheme between employers, orchestrated by Australian Mines and Metals Association (AMMA), to obtain template enterprise agreements in the maritime offshore oil and gas industry which undercut industry standard terms and conditions of employment established in the 2010 industry bargaining round, and to achieve this result by avoiding bargaining with the appellant. None of the employees covered by the agreements were at any relevant time members of the appellant, so the appellant could not have been their default bargaining representative at any time. The Full Bench held that the employees nominated persons other than the appellant to be their bargaining representatives, and accordingly there was no basis for the appellant to be involved in the bargaining process. The Full Bench rejected grounds 3 and 4 of the MMAOL Agreement notice of appeal, grounds 2 and 3 of the DOF Agreement notice of appeal, and grounds 3 and 4 of the Smit Lamnalco Agreement notice of appeal.
With respect to the other MMAOL Agreement appeal grounds, the first appeal ground in relation to the MMAOL Decision concerned the ‘genuinely agreed’ approval requirement in s.186(2)(a) of the Fair Work Act. The Full Bench held that at first instance the Commissioner did not analyse the ‘genuinely agreed’ requirement in any detail, but only recorded his satisfaction that the requirement had been satisfied. New evidence which was adduced by the appellant did not provide a proper basis for concluding that the MMAOL Agreement was not genuinely agreed. The Full Bench considered that the Commissioner was entitled to reach a state of satisfaction concerning the ‘genuinely agreed’ requirement based on the material before him. The second appeal ground concerned the ‘fairly chosen’ requirement in ss.186(3)–(3A). The appellant submitted that the Commissioner erred by applying the test by reference to the employees who voted on the agreement, and not in relation to the group of employees covered by it. The Full Bench found that in the MMAOL Decision, the Commissioner made it clear that he understood that the requirement was to be assessed by reference to the coverage of the agreement under consideration and rejected the contention that the Commissioner failed to apply the proper test. The Full Bench found no appealable error in the Commissioner’s findings concerning business rationale for choice of coverage of the MMAOL Agreement.
With respect to the other DOF Agreement appeal grounds, ground 1 of the appellant’s notice of appeal against the DOF Decision was in the same terms as ground 1 of the MMAOL Decision appeal, in that the appeal ground raised issues concerning the ‘genuinely agreed’ approval requirement. The Full Bench considered that the material that was before the Deputy President was sufficient to enable her to reach a state of satisfaction concerning the ‘genuinely agreed’ requirement. The Full Bench rejected this appeal ground.
With respect to the other Smit Lamnalco appeal grounds, ground 1 of the Smit Lamnalco Decision appeal also concerned the ‘genuinely agreed’ approval requirement. The Full Bench considered that the Commissioner took into account the various factual considerations weighing for and against the conclusion that the agreement of the employees was genuine. This appeal ground was rejected, as were the other appeal grounds.
Regarding the NERR issue, the Full Bench held that the Commission had no capacity to depart from the template in the Regulations [Peabody]. The consequence of failing to give a valid NERR is that the Commission cannot approve any subsequent enterprise agreement that is made [Peabody]. In Aldi, the Federal Court Full Court considered a challenge to the validity of the approval by the Commission of a particular enterprise agreement on a number of grounds including that the NERR issued by the employer did not conform to the form of the NERR in Schedule 2.1. The Full Bench observed that no member of the Full Court expressed the view that Peabody was incorrect. In light of the decision in Aldi, the Full Bench considered that the proper course was to follow Peabody and approach the NERR issue on the basis that a purported NERR which did not strictly comply with the prescribed form in Schedule 2.1 was invalid, and that an enterprise agreement which proceeded on the basis of an invalid NERR was incapable of approval. The Full Bench considered KCL, even if the requirement for strict compliance still allowed some capacity for errors of an entirely trivial nature to be overlooked (the possibility of which was adverted to by Jessup J in Aldi at  and by the Full Bench in KCL at ), the Full Bench did not consider that the defect in the NERRs could be characterised as trivial.
The Full Bench observed that s.174 does not require the prescribed content in the NERR to include the telephone number of the Commission’s infoline, or indeed anything that is currently contained in the last paragraph of Schedule 2.1. It would be open to the Minister at any time to exercise the power in s.173(5) and s.796 to have a new form prescribed which omits the last paragraph which employers frequently fail to correctly reproduce in the NERRs which they issue. However, until that occurs, the Full Bench considered that the Commission’s duty is to not approve enterprise agreements where the NERR issued by the employer does not strictly comply with the currently prescribed form in respect of that last paragraph.
The Full Bench concluded that the DOF Agreement and the Smit Lamnalco Agreement could not have validly been approved because the NERRs which the employer issued in each case were invalid. Accordingly the DOF Decision and the Smit Lamnalco Decision were quashed, and the applications for approval of the DOF Agreement and the Smit Lamnalco Agreement were dismissed.
This matter relates to an application by AGL Loy Yang P/L t/a AGL Loy Yang for termination of the Loy Yang Power Enterprise Agreement 2012 (Agreement). The nominal expiry date of the Agreement was 31 December 2015. The application was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU); the Australian Municipal, Administrative, Clerical and Services Union (ASU); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Trades Union of Victoria branch) (ETU); and the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia).
The Agreement covers about 578 employees at the Loy Yang A Power Station (Station) and adjacent open cut brown coal Loy Yang Mine (Mine) at Traralgon in Victoria. AGL Loy Yang cited a range of provisions in the Agreement it claimed unduly restricted its ability to make changes to its operations to increase productivity and reduce inefficiencies. AGL Loy Yang commenced negotiations for a new agreement with Unions in July 2015. In April 2016 AGL Loy Yang filed a bargaining dispute application under s.240 of the Fair Work Act, followed almost immediately by the CFMEU’s application under s.229 for bargaining orders. The s.240 process is ongoing. The Commission declined to make the orders sought by the CFMEU [ FWC 3376]. In May 2016 the CFMEU made an application for a protected action ballot order (PABO) under s.437. The Commission dismissed the application because it was not satisfied at that time that the CFMEU had been or was genuinely trying to reach agreement [ FWC 4364]. An appeal by the CFMEU against this decision was dismissed by the Full Bench [ FWCFB 6332]. In September 2016 the CFMEU made a further application for a PABO under s.437, this application was heard, determined and granted by the Commission [ FWC 7839].
AGL Loy Yang has stated that it will continue to bargain in good faith for a new agreement in the event the Agreement is terminated, stating that for a period of three months following the termination it will maintain certain conditions from the Agreement it says are significantly more beneficial than the minimum terms and conditions under the Electrical Power Industry Award 2010. The Commission held that it must terminate the Agreement if it is satisfied that it is not contrary to the public interest to do so, and consider it appropriate to do so taking into account all the circumstances, including the views of the employees, AGL Loy Yang, the CFMEU and the other Unions and their circumstances, including the likely effect the termination will have on each of them. The Commission adopted Aurizon and applied Kellogg. The Commission was satisfied that it was not contrary to the public interest to terminate the Agreement. The Commission was satisfied that the dispute was intractable as things currently stand and was persuaded that a change in the status quo through the termination of the Agreement will better support good faith bargaining for a new agreement that delivers productivity benefits. The Commission held that the termination of the Agreement will change the bargaining dynamic but this is not counter to the object of a fair framework for collective bargaining and facilitating good faith bargaining [Aurizon]. The Commission accepted that there was opposition to the termination of the Agreement from the employees, and found that this was not insignificant, and that their concern at the prospect of diminished terms and conditions of employment compared to the ones they currently enjoyed was understandable. After taking into account all of the circumstances the Commission found it was appropriate to terminate the Agreement. The termination took effect from 30 January 2017.
The Construction, Forestry, Mining and Energy Union (CFMEU) lodged an appeal against a Decision and Order issued by the Commission granting an application to terminate the Loy Yang Power Enterprise Agreement 2012 (Agreement). The CFMEU submitted that permission to appeal should be granted because:
The Full Bench granted permission to appeal for public interest reasons. The grounds for appeal included that the Decision erred in that: it did not conduct the weighing exercise required by s.226(b); it did not take into account and weigh all the circumstances relevant to the question of the appropriateness of terminating the Agreement; and in its construction of clause 4 of the Agreement.
The Full Bench held that this was a long-running dispute at an important utility which may have significantly detrimental effects for the community if protected industrial action occurred. The Full Bench accepted that the Commission erred by not considering clause 4 of the Agreement beyond the question of its legal efficacy. The appeal was upheld to the limited extent identified. The Full Bench found no error in the Decision at first instance apart from the consideration of the clause 4 issue and determined that it was not necessary to quash the Decision and Order and re-determine AGL Loy Yang’s termination application. The undertaking proffered by AGL Loy Yang in the appeal effectively involves adherence to the clause 4 commitment for three years.
Mackenzie Marine & Towage P/L (MMT) made an application to the Commission for the approval of the MMT Enterprise Agreement 2016 (Agreement). MMT had filed a list of names of current and former employees between June 2016 (the notification time) and 5 July 2016 (the time the Agreement was made) on a confidential basis. Two unions, the Maritime Union of Australia (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE) (collectively the Unions) applied to be granted standing in relation to the application. The MUA gave notice under s.183(1) of the Fair Work Act that it wished to be covered by the Agreement. The AIPME requested that it be granted standing to be heard in relation to the Application and access to copies of the Forms F16 Application and F17 Statutory Declaration. MMT opposed both requests. On the basis of the oral submissions of the parties at the Conference and the written submissions of MMT, the Unions were granted access to the Forms F16 and F17 for inspection.
In accordance with directions the AIMPE filed a list of names of current and former members potentially covered by the Agreement. The Unions filed written submissions and supporting materials seeking permission to be heard as full participants in the application. MMT objected to the Unions being heard in any capacity. The Commission noted four potential avenues by which an employee organisation might establish standing to be heard in relation to an application for approval of an agreement:
The Commission found that there were employees who were members of both unions at the time MMT initiated bargaining for the Agreement who would be covered by the Agreement, therefore the Unions were bargaining representatives pursuant to s.176. The Commission granted the Unions standing to be heard in relation to the application and allowed the Unions to give notice pursuant to s.183 that they wished to be covered by the Agreement.
In the decisions at first instance in this matter the Commission approved the Sparta Mining Services P/L Enterprise Agreement 2016 with certain undertakings. The Full Bench issued an earlier decision in relation to this matter [ FWCFB 7057] (First Appeal Decision). In the First Appeal Decision the Full Bench concluded that the question of whether the respondent had complied with s.180(2) of the Fair Work Act, in relation to the industry codes of practice, had not been dealt with. The Full Bench held that the jurisdictional prerequisite in s.190(1)(b) for the application was not fulfilled. In addition, the First Appeal Decision also noted that additional factual matters had emerged during the hearing of the appeal, these were:
The Full Bench held that these facts (which were not disputed by the respondent) gave rise to arguable grounds for concluding that the Agreement was not genuinely agreed to by the employees. The outcome of the appeal was that permission for the CFMEU to appeal was granted, and the matter was referred to the Commission for the purpose of re-determining whether the approval requirement in s.186(2)(a) was satisfied having regard to:
The Full Bench ordered that for the purpose of the re-determination process the parties were permitted to adduce further evidence. Subsequently the Commission issued a decision pursuant to the referral by the Full Bench [ FWC 8520]. That decision recorded that additional evidence was adduced by the parties. Further, there was consideration in the Commission’s decision of authorities which post-dated the original approval of the Agreement, including KCL and Aldi. The Commission determined that it could not be satisfied that the Agreement had been genuinely agreed to by the employees, and therefore the requirement under s.188(c) is not met. The matter was referred back to the Full Bench.
The parties were advised of the outcome of the Commission’s decision and given the opportunity to put further oral submissions to the Full Bench. The respondent did not propose to lodge any further written submissions and did not wish to have the opportunity to make further oral submissions. The appellant proposed that an enterprise agreement could only be approved if the requirements set out in the Fair Work Act were satisfied.
The Full Bench found that the requirements of s.186(2)(a) had not been satisfied, which rendered the Agreement incapable of approval. The Full Bench upheld the appellant’s appeal and quashed the decisions at first instance, the application for approval of the Agreement was dismissed.
At first instance the Commission refused to grant the appellant an extension of time to file his unfair dismissal application and dismissed the application. The Commission found that while there was an acceptable explanation for part of the delay, there was no satisfactory explanation for the further delay and no establishment of exceptional circumstances. The notice of appeal raised ten grounds of appeal including that there was a denial of procedural fairness on the grounds that:
The appellant also alleged a denial of natural justice on the basis of reasonable apprehension of bias by the Commission due to comments made immediately after the hearing.
The Full Bench held that it was in the public interest to grant permission to appeal, the appeal involved a serious challenge to the fairness of the process conducted by the Commission. The Full Bench found that review at the appellate level was necessary to ensure that any alleged procedural unfairness was examined and, if demonstrable, remedied. The Full Bench held that the appeal also raised issues of general application concerning the procedures applied in respect of extension of time applications under s.394(3) of the Fair Work Act. Permission to appeal was granted.
The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. To establish an appealable error in the exercise of discretion under s.394(3), the identification of an error of the type in House v The King is required. The Full Bench considered that a number of matters arising from the course of the proceedings were critical to the determination of the appeal:
The Full Bench held that prima facie these matters did not indicate any denial of a fair opportunity for the applicant to present his case for an extension of time. The only reason that the appellant did not give evidence in support of his own case, or otherwise provide a proper explanation for the delay, was that he failed to take up the opportunity to do so. Procedural fairness required the Commission to give the appellant a reasonable opportunity to present his case, not to ensure he took the best advantage of that opportunity. The Full Bench rejected the grounds of appeal. The Full Bench did not consider that the decision at first instance was attended by appealable error and was satisfied that the refusal to grant an extension of time was reasonably open to the Commission in the exercise of its discretion. The Full Bench found that the appellant was afforded procedural fairness and dismissed the appeal.
In this matter the Commission at first instance determined that the remedy sought by the appellant in a right of entry dispute was an exercise in judicial power which was beyond the Commission’s jurisdiction. In any event the Commission decided that times before and after workers’ shifts were not ‘other breaks’ within the meaning of s.490 of the Fair Work Act and that CFMEU officials had no right of entry at those times.
The grounds of appeal included that the Commission erred in:
The Full Bench held that the appeal raised important questions as to the powers of the Commission in right of entry disputes, and potentially novel questions concerning the nature of rights to enter premises. The Full Bench were satisfied that it was in the public interest to grant permission to appeal.
The only matter in dispute was whether the reference to ‘other breaks’ in s.490 included periods before and after employees’ shift start and finish times. The determination of this question involved ascertaining the legal rights and obligations created by s.490. The Full Bench held that the ascertainment, declaration or enforcement of legal rights was the exercise of judicial power, whereas opinions formed in the course of deciding what rights should exist in the future is an arbitral power conferred on the Commission [Ranger Uranium Case]. The Full Bench was satisfied that the Commissioner was correct in his decision that he had no jurisdiction to consider the dispute. Permission to appeal was granted and the appeal was dismissed.
At first instance in this matter the Commission approved the JBU Enterprise Agreement 2016 (Agreement). The appellant submitted two grounds for the appeal:
The Transport Workers’ Union (TWU) applied for leave to intervene in the appeal in order to make a submission. The appellant supported the intervention application. The Full Bench considered that the submissions the TWU proposed to make would, if leave to intervene were granted, largely be a repetition of the submissions of the appellant. The Full Bench held that submissions by a non-party to an appeal wishing to intervene, which propose to duplicate and merely support the submissions to be advanced by a party on appeal, are of little assistance and as such did not provide a proper basis for the Commission to permit such submissions to be made by way of intervention or otherwise.
The Full Bench held that it was unnecessary to determine whether permission to appeal should be granted, and whether the appeal should be upheld by reference to the two grounds of appeal initially advanced by the appellant. Instead the Full Bench decided to grant permission to appeal and to uphold the appeal on procedural fairness grounds. This decision was based on previously undisclosed ex parte communications passing between the Chambers of the Commissioner and Broadspectrum which traversed material facts in dispute and appear to have had a material effect on the outcome of the application for the approval of the Agreement. To the extent necessary, permission was granted to the appellant to amend its notice of appeal to include a ground concerning the ex parte communications. The Full Bench took the unusual course of allowing the matter to be raised at the hearing of the appeal because the existence and extent of the communications and their impact on the decision to approve the Agreement was not known to the appellant until Broadspectrum filed its submissions on the appeal. The Full Bench considered LCR Group, finding no suggestion that the ex parte communications were entered into deliberately in the sense that a deliberate decision was taken to exclude the appellant. Permission to appeal was granted because the Full Bench considered that the appeal raised important issues about the practice and procedure of the Commission concerning communications with parties in relation to extant proceedings. The appeal was upheld on procedural fairness grounds and the decisions at first instance were quashed. The application for approval of the Agreement was remitted to Kovacic DP for determination.
This matter relates to an application for an order to stop bullying under s.789FC of the Fair Work Act. The applicant is the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). His application named two persons, the General Manager, and the Deputy Chairperson of the Executive Board, and various allegations have been made about their conduct. The respondent strongly rejected the allegations and submitted that:
The Commission conducted a two day conciliation conference. It was agreed by the parties that the details of the discussions at conference would be kept confidential on the basis that the Commission would subsequently issue a summary of any observations and recommendations arising from the conference.
During the course of the conference, with the consent of the parties, the Commission did briefly speak directly with the parties. This ‘caucus’ was an opportunity for the parties to raise any concerns about the conduct of the conference itself, and so that the Commission would be able to act as a conduit for proposals if any were made. The merit or otherwise of the application and the responses were not discussed and no new proposals, information or concerns were advanced by either party. The feedback on the caucus discussion was summarised by the Commission to the full conference.
The Commission subsequently issued a comprehensive Statement and Recommendations. The document made no findings or assessment of the merit or otherwise of the application or responses, did not canvass the jurisdictional objections raised by the respondent parties, and made recommendations that drew upon apparent implications of the APY Act and the common objectives revealed by the parties during the course of conference.
The Commission sought submissions from the parties in relation to various procedural matters. One of those matters was to provide an opportunity for parties to raise concerns about the Commissioner. The respondent considered that it would be more appropriate and fair that another Commissioner hear argument and determine the evidence. The applicant indicated no reason for the Commissioner to not continue with the matter, ‘at very least until the Jurisdiction and the Johnston Withers retainer by APY matters were dealt with…’. The Commissioner considered whether he should recuse himself from further dealing with the application, considering Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia. There is no principle that a Commission Member will always disqualify themselves because of what may have been said or done at earlier stages of the proceedings. Likewise, there is not a principle that extends to (automatic) disqualification because of what has been said or done in conciliation conferences.
The Commission found that the recommendations dealt with the implementation of largely agreed and sound decision-making and governance practices, rather than what might be considered to be matters principally directed to the prevention of workplace bullying. The Commission found no basis upon which a fair-minded observer might reasonably apprehend that the Commission, as presently constituted, might not bring an impartial mind to the resolution of the questions that the Commission is required to decide. The Commissioner considered that it was not necessary or appropriate to recuse himself from continuing to deal with the application. Directions leading to the hearing and determination of the relevant preliminary jurisdictional objections were issued.
This section provides summaries of a number of Federal Court reviews of Commission decisions.
A Full Federal Court has upheld the decision of a Full Bench which found the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) authorised a workplace health and safety supervisor to direct his employee to attend medical appointments, as well as imposing an obligation on the employee to comply with the instructions given by his supervisor. The Commission had found that there was a valid reason for the employee’s dismissal given his failure to comply with the reasonable direction of his supervisor. The Court held that the employee’s claim that the CMSH Act should not be interpreted so as to abrogate his fundamental right to refuse a medical examination was at odds with the purpose of the CMSH Act. It also noted that the common law right to personal liberty can be overridden by the express intention of legislation.
A Full Federal Court has upheld a Full Bench decision regarding the interpretation of the term ‘default location’ contained in s.492(3) of the Fair Work Act. The provision in question provides that in the absence of an agreed location, a permit holder can hold interviews with certain employees in any area where the employees who may participate in the discussions ordinarily take meal or other breaks and which is provided by the employer for the purpose of taking meal or other breaks. The Court found that the area behind the cab of coal mine dragline, described as a ‘half-kitchenette’ was for ‘the purpose of taking meal or other breaks’ even if it was not the sole purpose for which that area is used.
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.
On 23 February 2017 the Full Bench issued a decision about penalty rates [ FWCFB 1001]. The Full Bench determined that a number of penalty rates would be varied in some retail and hospitality awards:
Parties with an interest in the Hair and Beauty Industry Award 2010 and the Registered and Licensed Clubs Award 2010 are continuing to pursue claims to vary penalty rates in those awards following the outcome of the penalty rates decision.
The changes to penalty rates for work performed on public holidays will come into effect on 1 July 2017 and will apply to both new and existing employees. Following a subsequent decision on 17 March 2017 [ FWCFB 1551], the changes to the times at which night shift penalties apply under the Fast Food Award and Restaurant Award will also come into effect on 1 July 2017 and will apply to both new and existing employees.
The timing of the changes to Sunday penalty rates is yet to be determined. The date (or dates, if the reduction is to be phased in over a period of time) will be decided after further proceedings. It has not been determined whether or not the changes to Sunday penalty rates will apply to all employees. Following written submissions, the transitional arrangements will be the subject of a hearing in May 2017 before a final decision is made.
The intersection between the casual loading and the penalty rates payable for evenings and Saturdays is now being considered by this Full Bench subject to a claim by the Shop, Distributive and Allied Employees’ Association.
A number of ancillary matters, including some ancillary public holiday penalty rates claims, will be dealt with by this Full Bench and were listed for conference in April 2017.
Revised draft plain language guidelines (PDF) were published on 20 January 2017 to incorporate changes arising out of the decision ( FWCFB 344) of the same day. In a decision of 21 March 2017 the Commission undertook to publish the revised draft guidelines in final form. This will occur shortly.
Two decisions have been issued relating to the Pharmacy Industry Plain Language Exposure Draft [ FWCFB 344] and [ FWCFB 1612]. A small number of substantive issues are outstanding and directions have been issued in respect of those issues. A Plain Language Exposure Draft of the Clerks’ Private Sector Award 2010 has been published and parties have filed submissions. Plain language exposure drafts will be published for the Restaurant Industry and Hospitality Industry Awards shortly.
Following a series of conferences, plain language drafting of standard award clauses is almost complete. A plain language draft of the National Training Wage Schedule has also been published and parties have filed submissions.
The Commission announced a further 10 awards for plain language drafting and sought submissions on the inclusion of those 10 awards in the plain language common issue [ FWCFB 1638]. The Commission also stated it will review all modern awards for consistency of language and to bring them in line with the structure outlined in the plain language guidelines.
A Statement was issued on 23 February 2017 [ FWCFB 1095] providing an update of the Review of the National Training Wage schedule (NTW schedule). In July 2016 the Full Bench had expressed the provisional view that the NTW schedules be removed from all modern awards except the Miscellaneous Award 2010 (Miscellaneous Award).
The NTW schedule has been re-drafted in plain language and was published for comment with the Statement. Submissions in relation to the NTW plain language schedule were received in March 2017. The proposal that a tailored NTW schedule be inserted in nine awards will be the subject of further consultation, following the finalisation of the form of the NTW schedule in the Miscellaneous Award.
In March 2017 four modern award fact sheets were published on the Commission’s website in relation to:
A decision was issued on 27 March 2017 [ FWFB 959] which dealt with a number of outstanding issues in relation to the variation of annual leave terms in the Black Coal Mining Industry Award 2010. The Full Bench expressed provisional views with respect to the issue of the shutdown provision. The Full Bench noted that the adoption of those provisional views is likely to have implications for existing shutdown terms in other modern awards. Parties interested in the Black Coal Award and the other 80 modern awards which contain shutdown provisions were invited to file written submissions in relation to the provisional views. A hearing on this issue has been listed for 5 May 2017.
A Statement was issued by the President on 1 February 2017 [ FWC 669] following a Full Bench decision on 13 January 2017 in Iplex that found that the abandonment of employment provision in clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) if read as a term effecting the automatic termination of employment is not a permitted or required term in a modern award. The Statement referred a review of the abandonment of employment provision in the Manufacturing Award and in five other awards to the Iplex Full Bench. The matter was listed for Mention/Directions in late April.
Interested parties provided submissions in response to the model clauses drafted by the Commission. There was a hearing to discuss the model clauses on 23 March 2017. The Full Bench indicated that the model clauses would be considered further at a conference in May.
On 27 February 2017 Vice President Watson published his decision in this matter. His resignation from the Commission took effect on 28 February 2017. In the circumstances, Deputy President Gooley and Commissioner Spencer sought the advice of the President as to whether they may proceed to finalise and publish a decision in the matter, in particular having regard to s.622 of the Fair Work Act.
A Statement was issued by the President on 27 March 2017 [ FWC 1733]. Parties were asked to address a series of questions concerning the constitution of the Full Bench at a hearing listed for 4 April 2017. Further submissions are due on 5 May 2017. A further statement will be issued setting down how the President intends to proceed after those submissions have been considered.
On 10 February 2017 a Statement [ FWC 856] was issued summarising the outstanding claims before this Full Bench. Submissions in reply were received on 15 March 2017. A mention was held on 31 March 2017 before Vice President Hatcher. The matter is listed for hearings from 24 to 26 July 2017.
The Shop, Distributive and Allied Employees’ Association has amended its application by withdrawing the claim to insert bone marrow leave in five awards. They continue to press their claim for paid blood donor leave. The hearing is scheduled for mid-July 2017.
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 commenced on 21 March 2017 and runs on Tuesdays and Thursdays with lawyers provided by Legal Aid Queensland.
All costs associated with providing lawyers for the Pilot Program are met by the legal services.
The Fair Work Commission published the new Industrial action benchbook on 22 March 2017.
The benchbook has been prepared by staff of the Commission to provide information about the Commission’s role in the regulation of protected and unprotected industrial action under the Fair Work Act.
It contains plain language summaries of the key principles of industrial action case law and how these have been applied in Commission decisions.
The Fair Work Commission has also published an updated version of the Enterprise agreements benchbook.
The Minister for Employment, Michaelia Cash, has announced Mr Mark Bielecki will be the first Registered Organisations Commissioner. Mr Bielecki has worked extensively as both a senior lawyer and financial regulator. He has more than 10 years’ experience in senior legal roles and was previously the South Australian Regional Commissioner for ASIC.
The Registered Organisations Commission will commence on Monday, 1 May 2017, with all new functions and powers in effect by 2 May 2017.
For more detail about the changes see the Registered organsations page on our website.
An amendment to the Fair Work Regulations 2009 commenced on 3 April 2017, affecting the Notice of Employee Representational Rights used during bargaining for an enterprise agreement.
The change to the Regulations affects the content of the Notice, and applies to parties who issue the Notice from 3 April 2017 onward.
For more information, and to download the updated Notice and related guide, go to the Enterprise bargaining page.
The Commission announced changes to the panel system which have been effective from Monday, 13 February 2017.
For more information go to the Panel system page.
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.
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