Welcome to the Fair Work Commission’s Quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
If you have any feedback about this newsletter, including suggestions for future editions, please contact firstname.lastname@example.org.
The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 January 2021 and 31 March 2021.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
We are pleased to announce that from 1 April 2021 the Workplace Advice Service (the Service) became available nationally.
The Service seeks to improve access to justice and reduce complexity for its users. It is a free legal advice program co-ordinated by the Commission. In partnership with private law firms, Community Legal Centres, Legal Aid and barristers, we offer 1 hour of free legal advice to unrepresented individuals and small business employers about unfair dismissal, general protections involving dismissal and workplace bullying.
The Service aims to avoid unnecessary costs for all where an application does not have merit. It is focused on providing early intervention, helping clients in the early stages of their employment issue. The 2019–20 data on clients who received the Service showed that:
This means that 91% of clients who received the Service did not proceed to a formal proceeding before a Commission Member.
Since the establishment of the Service in mid-2018 we have seen demand grow, largely due to the introduction of an online form in mid-2019 and effective promotion of the Service by Commission staff members. Last financial year the Service helped 2401 clients, more than twice as many as for the previous financial year.
A major focus for the Service last year was on expanding our capacity to meet the increase in demand in existing locations: New South Wales, Queensland, South Australia, Victoria and Western Australia. We were very pleased to see the tangible results from our efforts in January to February 2021 when we provided appointments to 88% of clients who requested the Service.
Building on this success, we recently recruited a total of 14 new partner organisations to provide legal assistance to clients in the Northern Territory, the Australian Capital Territory and Tasmania. The Service is now available across Australia as of 1 April 2021.
If your organisation is interested in partnering with the Commission in the Workplace Advice Service, please email email@example.com to find out more.
On 26 February 2021 the Shop, Distributive and Allied Employees’ Association (SDA), the Australian Workers’ Union (AWU) and Master Grocers Australia (MGA) filed a joint application to insert ‘Schedule I – Additional flexibility measures – Part-time employees’ into the General Retail Industry Award 2020 (the Retail Award).
The proposed schedule facilitates agreements between an employer and certain part-time employees to work more ordinary hours than their guaranteed number of hours agreed under clause 10.5, up to a maximum total of 38 ordinary hours per week. ‘Additional hours’ are to be paid at the employee’s ordinary time rate of pay, and are subject to restrictions in clause 15 of the Retail Award and clause 1.4 of the proposed Schedule I.
Submissions in support were received from the Autralian Council of Trade Unions, the AWU, SDA and MGA. Opposing submissions, raising several issues, were received from Australian Business Industrial, NSW Business Chamber and the Australian Chamber of Commerce and Industry (collectively ABI); National Retail Association (NRA); Retail and Fast Food Workers Union; the Australian Industry Group and the Australian Retailers Association. ABI and NRA objected to an expedited hearing.
The Full Bench found the proper construction of the existing clause 10 of the Retail Award was a threshold issue in consideration of the joint application and the ABI alternative proposal. The Full Bench found clause 10 was uncertain and required variation to resolve that uncertainty. It was the provisional view of the Full Bench there may be merit in variation of the Retail Award to introduce a mechanism whereby a part-time employee who regularly works additional hours may request their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request.
The Full Bench noted that the next steps in the matter were for Commissioner Hampton to convene a further conference to discuss clause 10 and the provisional view. Conferences were listed for 21 and 23 April 2021.
On 8 April 2020 a decision was issued varying 99 modern awards to insert ‘Schedule X—Additional measures during the COVID-19 pandemic’. Schedule X provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay. The schedule was to operate until 30 June 2020 but was extended in various awards to 30 September 2020 and later to 29 March 2021.
Applications were filed by a number of organisations to extend clauses X.1 and X.2.1(d) of Schedule X in 57 awards to 31 December 2021. The applications only sought to extend clauses X.1 and X.2.1(d), concerning unpaid pandemic leave, but not taking twice as much annual leave at half pay.
On 24 March 2021 the Full Bench issued a decision in which they expressed that their provisional view was to extend all provisions in Schedule X until 31 December 2021. No opposing submissions were received. In the 24 March 2021 decision, the Full Bench made it clear that if no submissions were filed opposing their provisional view, each of the relevant awards would be varied to extend the operation of Schedule X until 31 December 2021.
The Full Bench determined that the variation of the 57 awards to extend operation of Schedule X until 31 December 2021 was necessary. Variation determinations were issued for the awards set out at Attachment A in that decision.
Subsequent decisions extended the operation of Schedule X in another 5 modern awards.
On 24 March 2021, the Commission issued a decision expressing the provisional view that the operation of the provisions in ‘Schedule X—Additional measures during the COVID-19 pandemic’ in 9 identified health awards, which provide for an entitlement to unpaid pandemic leave and a facility for employees to take twice the amount of annual leave at half pay, should be extended until 31 December 2021.
The Full Bench also expressed the provisional view that operation of the provisions of ‘Schedule Y—Industry Specific Measures During the COVID-19 Pandemic’ in the Aged Care Award 2010, the Health Professionals and Support Services Award 2020 and the Nurses Award 2010, which provide employees working in the aged care sector with an entitlement to paid pandemic leave, should not be extended beyond 29 March 2021.
Interested parties were invited to file written submissions in response, with a hearing being conducted if opposing submissions were filed. No submissions were received opposing the provisional view.
Determinations were issued varying Aged Care Award 2010, the Health Professionals and Support Services Award 2020 and the Nurses Award 2010 to delete the Schedule Y provisions, and extending the operation of the Schedule X provisions until 31 December 2021 in the following health awards:
This matter relates to an application to deal with a dispute arising under The Presbyterian Aged Care, NSWNMA and HSU Enterprise Agreement 2017-2020. The respondent operated an aged care facility. A patient at the facility was a close contact of a person who tested positive to COVID-19. The Public Health Unit of Sydney Local Health District contacted the respondent with recommendations that staff who had worked directly with the patient not attend work for 14 days following their last contact with that patient. As a result, 9 permanent staff were directed not to attend work for periods between 8 September 2020 and 12 September 2020.
When they returned to work the affected staff were invited to nominate what form of leave they would utilise to cover their absences, including annual and personal leave. The union submitted that the stand down was precautionary rather than mandatory, and not a lawful stand down within the meaning of s.524 of the Fair Work Act. The union further submitted the situation was covered by the respondent’s COVID-19 policy, which provided for a separate form of paid leave where an employee was required to stay away from work as a precautionary measure. The union sought a finding that the respondent was not entitled to require employees to utilise leave, and reinstatement of the leave taken by employees for the relevant period.
The respondent submitted that it had no choice but to comply with Public Health Unit directions. The respondent also submitted that the circumstances in this instance constituted a stoppage of work for which they could not be held responsible.
The Commission found there was no stoppage of work. It was satisfied that work continued as performed by other employees. The Commission found the Public Health Unit issued recommendations, and there was no Public Health Unit order that prevented employees from working. The Commission found that the economic burden of compliance with the recommendations should fall on the respondent. The Commission was satisfied that employees were required to stay away from work as a precautionary measure, in compliance with the respondent’s policy. The respondent was directed to reinstate any leave taken by employees for the relevant period of time and directed to not otherwise deduct pay in respect of the relevant time.
The majority of the JobKeeper provisions in Part 6-4C of the Fair Work Act were repealed on Monday 29 March 2021.
The Commission can still deal with JobKeeper dispute applications under the remaining divisions of Part 6-4C of the Fair Work Act on application by an employee, employer, employee organisation or employer organisation.
Please visit our JobKeeper disputes page to find out more about the changes and type of JobKeeper disputes that the Commission can deal with from 29 March 2021.
This matter looks at an application for unfair dismissal. The applicant was initially employed as a part-time security guard with the respondent, he later transferred to casual engagement due to an ongoing medical condition. The applicant was allocated work on an ‘as needed’ basis. The respondent had a list of employees available to work, and due to the applicant’s length of service his name was on top of the list. The respondent would call the applicant first and if it received no response in a reasonable time would call the next on the list.
The applicant received JobKeeper payments from June 2020 to the time of his dismissal on 7 October 2020. The applicant worked different hours each week. The key issue in dispute was the applicant’s alleged failure or refusal to answer calls from the respondent. The respondent alleged that the applicant did not answer calls as he was receiving JobKeeper payments.
The Commission found that even though the applicant did not respond to calls from the respondent during the period that coincided with the provision of JobKeeper payments, it found no clear evidence that this was the basis for the applicant not responding to the calls.
The Commission found however that the applicant’s conduct was inconsistent with his commitment to be available to perform work and impeded the operational requirements of the respondent’s business.
The Commission considered found the respondent had a valid reason for the dismissal of the applicant. The applicant’s failure to answer phone calls from the respondent prevented the applicant from being notified of dismissal, which then also prevented the applicant from having an opportunity to respond to the reason for his dismissal. The Commission was not persuaded that the impact of the procedural failures should render the dismissal harsh, unjust or unreasonable. The Commission was not satisfied that the applicant was unfairly dismissed and dismissed the application.
As with most applications for unfair dismissal, this application was subject to conciliation before a Commission staff member (the staff conciliation). Following the staff conciliation, the staff conciliator sent a letter to the applicant and respondent representatives which said that the parties reached a settlement agreement. Two weeks later the Commission received correspondence from the applicant’s representative which said the parties reached an in-principle agreement at the staff conciliation, but that they now ‘wish to advise that the parties have not been able to reach an agreement following the conciliation and as such, we now request that the matter be listed’.
The Commission sought submissions from the parties as to the existence of such an agreement. The respondent said that a binding settlement agreement was reached between the parties in conciliation, and that it remained ready to meet its obligations under that agreement. The respondent further submitted that however, in drafting the deed, the applicant’s representative had widened its scope beyond the terms of agreement made at conciliation to include a release from all of the applicant’s post-termination contractual obligations, when the agreement in conciliation was limited to a release in relation to the unfair dismissal matter only. The applicant submitted that no binding settlement agreement was reached because the parties reached an in-principle agreement that was subject to a deed of mutual release, the precise terms of which were yet to be agreed by the parties.
The Commission considered Singh v Sydney Trains. The Commission found that it was apparent from the notes taken during the staff conciliation, and not disputed by the respondent in this respect, that discussion of the terms of settlement included that there would be a ‘mutual release’. The Commission found that a mutual release only has meaning if there is a two-way exchange in that release. Objectively viewed and given the actions of the parties immediately following the conciliation, the Commission accepted that there was no meeting of the minds as to the basis on which the agreement was reached, specifically in relation to the ‘mutual release’ terms.
The Commission accepted that at the staff conciliation there was no agreement on the terms of the mutual release. The Commission was satisfied that no final agreement was reached at conciliation. For this reason the case falls into the third class as set out in Masters v Cameron such that a concluded bargain was not reached.
The Commission found the unfair dismissal application was therefore not settled. The Commission noted that this case highlighted the need for caution in the use of terms such as ‘mutual release’ or that a settlement document will contain the ‘usual terms’, regardless of the sophistication or otherwise of the parties involved. It is important that parties participate in settlement discussions and that they leave those discussions with a fullunderstanding of the terms of the agreement reached such that what is put in writing later is of no surprise. The application for unfair dismissal was referred for programming for arbitration.
In this unfair dismissal matter the application stated that the applicant began working for the respondent on 6 January 2020, and the date of his dismissal was 16 July 2020. The respondent raised a jurisdictional objection that the applicant’s employment did not meet the minimum employment period.
The respondent contended that the applicant’s period of employment spanned ‘… a total of 6 months and 10 days’ but asserted ‘…that by combination of the terms of the engagement letter, and the manner in which the applicant was engaged, it would not have been possible to have a reasonable expectation of continuing employment for the entire duration of his employment, especially so in regard to the first few weeks of the employment’. The respondent submitted that the applicant’s period of employment as a casual did not satisfy the legislative requirements that it was regular and systematic in nature, and that there was a reasonable expectation of continuing employment during a period of at least 6 months.
In the period between 6 January and 10 January 2020 the applicant attended paid training prior to his first engagement as an Airport Screening Officer (ASO) on 17 January 2020. The respondent submitted that the period prior to the applicant’s first engagement as an ASO on 17 January 2020 should not be counted as a period of service for the purposes of the minimum employment period.
The Commission found no basis as to why the applicant’s period of employment should not be held to have commenced on 6 January 2020, when he undertook paid training that was a necessary precursor to working in the role of an ASO. The Commission also found no proper basis to exclude a period of paid training undertaken by an employee from a period of employment. The Commission found that in circumstances where the period of paid training may not be contiguous with the subsequent engagement in regular and systematic employment, it was likely that any disconnected prior paid training should be aggregated with the subsequent period of regular and systematic employment for the purposes of determination of a period of continuous service as contemplated by s.384 of the Fair Work Act.
The Commission found the applicant was an employee who had completed at least the minimum employment period. The respondent’s jurisdictional objection was dismissed. The matter was listed for further proceedings.
In this application for unfair dismissal the applicant had been employed by the respondent since May 2017. The applicant was dismissed on 2 September 2020 after the respondent formed the view that the applicant had sworn at, threatened and behaved aggressively towards other employees at incidents that occurred earlier that day.
The Commission considered the Briginshaw standard as allegations of serious misconduct had been made. The Commission found the respondent had 4 reasons for the applicant’s dismissal, 3 which related to incidents between the applicant and other employees and one related to repeated conduct about which the applicant had previously received a verbal warning. The Commission was not satisfied that one of the incidents was a valid reason for dismissal however the other interactions were valid reasons.
The respondent had conducted an investigation and interviewed other employees who were involved in, or witnessed, the alleged incidents. The applicant was notified of the reasons for his dismissal in the same communication that terminated his employment, giving no opportunity for response. The Commission found no acceptable reason for failing to provide the applicant with an opportunity to respond to serious allegations.
The Commission found that it was sensible for the respondent to have acted promptly when dealing with serious allegations, but it was not appropriate for the respondent to have accepted other employees’ evidence without notifying the applicant.
The Commission found that the applicant was not provided the opportunity to consider the allegations and respond to them . The Commission was satisfied that the deficiencies in the process followed by the respondent would not have made any difference to the ultimate outcome of dismissal. The Commission found the applicant’s dismissal was not harsh, unjust or unreasonable. The applicant was well aware from a previous warning that his conduct on 2 September 2020 was unacceptable. The application was dismissed.
At first instance the Commission found the appellant had been unfairly dismissed and that the dismissal was harsh, unjust and unreasonable. The Commission determined reinstatement was not appropriate and considered criteria set out in the Fair Work Act to calculate compensation, including considering JobSeeker payments as remuneration, received since termination. The Commission considered Hanson and awarded compensation of $10,000.
The appellant lodged her appeal of the original decision asserting 5 errors. The appellant submitted:
The Full Bench found the appeal raised an issue of importance and general application surrounding the appropriate deduction for social security payments in calculating compensation. The Full Bench found that the Commission at first instance had not clearly articulated its reasoning for its conclusion as to the appropriate quantum of compensation. The Full Bench found that the decision manifested an injustice and that it was in the public interest for permission to appeal to be granted.
The Full Bench considered the 5 grounds of appeal. It found the Commission did not follow established authority for the treatment of social security payments when determining compensation. The Full Bench also found error in the Commission making a deduction and taking into account any JobSeeker payments. The Full Bench found the Commission had set out each matter taken into account when considering compensation but did not indicate the effect each matter had when calculating compensation. The Full Bench also found that the Commission did not appear to apply Hanson to the calculation of compensation and there was also no indication on how the figure of $10,000 was arrived at.
The Full Bench was satisfied that the Commission decision was attended by sufficient doubt to warrant reconsideration. Permission to appeal was granted and the appeal, insofar as it related to the determination of compensation, was granted. The decision, in relation to compensation, was quashed and referred back to the Commission for redetermination.
In this unfair dismissal matter the applicant’s lawyer advised the respondent that if they failed to ‘negotiate in good faith towards the resolution’ of the matter, and the Commission found that the dismissal was unfair, that the applicant would seek costs against them.
The respondent repeatedly refused to respond to numerous settlement offers from the applicant and so the applicant did not consent to participate in a Member-assisted conciliation. At hearing the Commission found the dismissal was harsh, unjust or unreasonable and ordered compensation of $7,978.10 against the respondent [ FWC 5332].
The applicant sought costs on the basis that the respondent:
The Commission found that the respondent’s failure to respond to 3 settlement offers unreasonably incurred costs to the applicant. The Commission also found that not all costs for the hearing and preparation could be fully attributable to respondent’s unreasonable conduct. Costs were awarded but discounted by 50% on that basis. Costs of $3,947.05 were ordered.
At first instance in this matter the Commission found that the employee’s dismissal was harsh, unjust and unreasonable and ordered, inter alia, for Chelgrave Contracting Australia Pty Ltd (Chelgrave) to reinstate the employee at the Carlton & United Breweries site at Abbotsford, Victoria (the appellant’s site). The Commission also ordered that Chelgrave maintain the employee’s continuity of employment, his period of service and restore all lost remuneration.
The appellant applied for and was granted stay orders [PR724668] and [PR724837]. In Ground 2A of the appeal, the appellant contended that by not considering the employee’s incapacity to work at the appellant’s site, the Commission failed to take into account a material consideration and made an error of principle in ordering reinstatement of the employee directly to the appellant’s work site. The appropriateness of reinstatement involves an assessment of a broad range of factors [Nguyen v Vietnamese Community in Australia]. Incapacity of an employee can also arise in cases where they have been prohibited from entering their work site by a third party [Conlon v Sandlewood Aboriginal Projects Limited]. In this matter the lack of capacity to work at the appellant’s site arose from the appellant’s right under its contract with Chelgrave to have the employee excluded from its work site (the Contract).
The Full Bench found that at first instance, the Commission knew of the existence of the Contract, and knew that its content was critical to an assessment of whether reinstatement of the employee to the appellant’s site was an appropriate remedy. The Full Bench noted that the fact that Chelgrave did not place the Contract in evidence before the Commission was cause for criticism. The Full Bench also noted that the Commission is empowered to conduct inquiries and compel production of documents.
With the Full Bench having had the benefit of seeing the Contract, it was clear that the employee was incapacitated from working at the appellant’s site. This was because Chelgrave had no contractual power to force the appellant to allow the employee access to their site after his removal. The order to reinstate the employee to the appellant’s site was inappropriate in all the circumstances.
As an error of principle had occurred, in that the Commission made an order with which Chelgrave was unable to comply, the Full Bench upheld Ground 2A of the appeal. Given this finding the Full Bench held it was unnecessary to deal with the procedural fairness and other appeal grounds. Permission to appeal was granted and the appeal was upheld. The order of the Commission of 4 November 2020 was quashed insofar as it ordered reinstatement of the employee to the appellant’s site.
The applicant in this unfair dismissal matter was employed in 2011 to work at the Tarrawonga Open Cut Coal Mine. He was dismissed for serious misconduct. The respondent claimed the serious misconduct involved the failure to follow processes, specifically Safehaven Rule 5, which was a general obligation for health and safety.
The applicant claimed there was no valid reason for his dismissal. The applicant contended that although it may appear that he breached the respondent’s rules, the circumstances were such that he could not have complied with them. The applicant submitted that as the reason for dismissal was serious misconduct, the respondent bore the onus of proving that the applicant engaged in the conduct that he was accused of.
The Commission found an incident did occur. The applicant did admit to breaching Safehaven Rule 5, which the respondent’s policy stated would be treated as serious misconduct, therefore the respondent had a valid reason for termination. However, the Commission found this incident was not a ‘near miss’, as the respondent had categorised it.
The Commission found the respondent did not give the applicant an opportunity to respond to the show cause letter and as a result the applicant was denied basic procedural fairness in the termination process. The Commission found this lack of procedural fairness made the termination unjust. The Commission also found that the termination was unreasonable, as the applicant was not treated in the same way as his colleagues who had previously broken Safehaven Rule 5. The Commission then found the termination to be harsh, having regard to the personal circumstances of the applicant.
The Commission noted that the applicant had apologised for his conduct and believed that he was truly remorseful. The Commission found it was undoubtedly very embarrassing for the applicant, who had been elected by his peers to sit on the Workplace Health and Safety Committee, to be dismissed for breaching one of the Safehaven Rules. The Commission accepted that the applicant had learnt his lesson from this misconduct and found that his dismissal was unfair.
The applicant sought reinstatement. The Commission found no basis to conclude that the respondent had lost trust and confidence in the applicant, and if trust and confidence had been lost, then it could be restored. The Commission found that in this case reinstatement was appropriate. It was also considered appropriate to make an order to maintain the applicant’s continuity of employment and period of continuous service with the respondent.
The Commission may also make any order it considers appropriate to cause a respondent to pay to an applicant an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal. At the time of the hearing, the applicant had been unemployed for a period of around 26 weeks. The Commission considered any order made for lost remuneration should be discounted by 3 days to equate to discipline for the applicant, in the same manner as his colleagues who had previously broken Safehaven Rule 5. The Commission also considered that it would be appropriate for the applicant to be issued with a final warning in acknowledgement of his misconduct. The Commission ordered the respondent to pay the applicant 25 weeks’ pay at the applicant’s normal rate.
In this unfair dismissal matter the applicant was employed by the respondent as its Director of Client Relations. On 31 July 2020 the applicant sent, via her lawyers, a letter to the respondent outlining allegations of sexual harassment, workplace bullying and unpaid entitlements, and requested the respondent undertake an independent investigation. The respondent appointed a law firm to conduct the investigation. The investigation found some inconsistencies with the applicant’s version of events. Through the applicant’s lawyers, the investigator requested the applicant take part in an interview and stated the applicant was entitled to have a support person or lawyer in the interview. The investigator also stated that the applicant and support person must treat the investigation as confidential and should not disclose the content of the interview to anyone other than themselves or their lawyers, who also must commit the same obligation of confidentiality.
Prior to the interview the applicant’s lawyers advised the investigator that the applicant was on sick leave due to the significant impact the entire experience was having on her mental wellbeing. The applicant and her lawyer attended an interview over Teams. At the beginning of the interview the importance of confidentiality was highlighted to the applicant. During the interview the applicant was made aware of information provided to the investigation by a former colleague. Soon after the interview the respondent became aware that the applicant had shared information from the interview with her partner. The applicant’s partner sent several aggressive text messages to the applicant’s former colleague who was also known to the partner. In response to this, the respondent terminated the applicant’s employment for serious misconduct through the disclosure of confidential information. The respondent argued that the direction of confidentiality was reasonable and lawful. The applicant argued there was no valid reason for dismissal given the circumstances and that the direction was unlawful and unreasonable.
The Commission found the direction was lawful but not reasonable. The Commission considered it neither reasonable nor realistic for the respondent to require the applicant to elect to confide in either one support person or her lawyers acting in the capacity of support person(s), but not both. Moreover, the Commission found it unreasonable and unrealistic for the respondent to seek to insist that a person only consult with their lawyers but not a spouse, de facto partner or other individual upon whom they rely for advice and emotional support. The Commission further emphasised that individuals do not operate within a ‘solitary vacuum’ and it was unreasonable for the respondent to expect so. The Commission agreed that an individual brought into a ‘circle of confidentiality’ must respect that privilege and behave appropriately, and that the applicant ‘was spectacularly failed by the stupidity of her boorish partner’.
The Commission was not persuaded the applicant’s disclosure of confidential information to her partner in all the circumstances of this case, including her mental health and the prevailing conditions of Victoria’s stage 4 lockdown brought about by COVID-19, constituted a valid reason for the termination of her employment. The Commission found the dismissal was unfair. Directions were issued for the filing and service of further material to address the question of what remedy (if any) should be ordered.
This matter refers to a general protections application to deal with alleged contraventions involving dismissal. The applicant was employed as a Document Controller between 4 September 2017 and 1 November 2020.
In Milford a Full Court of the Federal Court determined that in a s.365 matter, the Commission must (where the respondent employer has made a jurisdictional objection that the employee was not dismissed) decide whether the Commission has jurisdiction to conduct a conference and issue a certificate as contemplated by s.368 of the Fair Work Act. Adani contended that it did not dismiss the applicant within the meaning of s.386(1). Adani also relied upon the ‘exclusion’ in s.386(2)(a); namely that the applicant was employed under a contract of employment for a specified period of time (a fixed-term contract) and the employment concluded on 1 November 2020 (at the end of the specified period).
The Commission considered Navitas. A time-limited contract of employment that provides for an unqualified right for either party to terminate the contract on notice is not a contract for a specified period and s.386(2)(a) does not apply. The Commission found that this was the form of contract entered into by the parties in this matter. This meant the ‘exclusion’ in s.386(2)(a) was not available to Adani.
The Commission then considered whether the conclusion of the applicant’s employment was, in all of the circumstances, a dismissal within the meaning of s.386(1). The Commission found that the employment contract was a genuine outer-limits (or time limited) contract. The contract was extended for a specific purpose, to enable the provision of paid parental leave to the applicant and to provide her with additional time to make other arrangements. The Commission found that this extension did not change or undermine the fixed-term nature of the employment commitments.
The Commission found that the employment relationship ended by reason of the agreement between the parties. The Commission held that this was not a termination at the initiative of the respondent employer. As a result, there was no jurisdiction for the Commission to compel Adani to attend a conference or to issue a certificate as contemplated by s.368(3). The absence of a s.368(3) certificate meant that the application could not proceed to the Commission for consent arbitration or to the Court. The application could not proceed at all. The application was dismissed.
APESMA has been attempting to negotiate an enterprise agreement with Mt Arthur (a subsidiary of BHP Group Limited) covering Supervisors at its open cut coal mine in the Hunter Valley of New South Wales since about May 2018. Mt Arthur has not previously had an enterprise agreement covering the Supervisors. Operators employed by Mt Arthur to work at its mine in the Hunter Valley are covered by a separate enterprise agreement.
In January 2020 APESMA made an application to the Commission for bargaining orders. Terms of settlement were reached on 30 March 2020, but they did not resolve all issues in the proceedings. On 11 September 2020 APESMA asked for its application for bargaining orders to be listed for hearing. APESMA contended that Mt Arthur had failed to meet the following 3 good faith bargaining requirements:
After consideration the Commission found that Mt Arthur had not met its good faith bargaining requirements. The Commission was satisfied it was reasonable in all of the circumstances to make bargaining orders. The orders will direct things to be done (or not done) to ensure, or enhance the prospect of, compliance by Mt Arthur with its good faith bargaining requirements. There were some minor amendments between the orders sought by APESMA and the orders the Commission decided to make.
The President of the Commission has issued a statement setting out new timeliness benchmarks for the Commission to determine applications for approval of enterprise agreements.
The statement also provides information about:
This matter relates to an appeal by Advantaged Care Pty Ltd against a decision by the Commission not to correct an alleged obvious error in the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023 pursuant to s.602 of the Fair Work Act. The respondent was the Health Services Union.
The appellant contended that this alleged error could be corrected pursuant to s.602. The Commission determined s.602 did not confer a power to correct an obvious error in an enterprise agreement because an enterprise agreement was not made by a decision of the Commission. Rather, an enterprise agreement was made by the parties and the Commission’s decision simply made the agreement made by the parties effective.
The appeal raised the question of whether s.602 permits a Member of the Commission to correct an obvious error, defect or irregularity in the text of an enterprise agreement. The appellant relied on its submissions at first instance and submitted that s.602 conferred power on the Commission to correct or amend any obvious error, defect or irregularity in relation to a decision made by the Commission. It contended that if as a result of a decision an enterprise agreement is made, the power to amend or correct extends to the instrument, that is the enterprise agreement.
The HSU submitted that the Commission took the correct approach at first instance by considering the power contained in s.602 by reference to the text of the provision and by reference to the context provided elsewhere in the legislation, including relevant notes, and the explanatory memorandum.
The Full Bench considered s.602 and used statutory interpretation principles to ascertain its legal meaning. The Full Bench noted that s.602(1) provides that the Commission may ‘correct or amend any obvious error, defect or irregularity … in relation to a decision of the FWC’. Further, that s.598(2) provides that a decision ‘to make or vary an instrument’ is a ‘decision of the FWC’ for the purpose of s.602(1).
The Full Bench found the Commission’s finding at first instance that an enterprise agreement was an ‘instrument’ for the purpose of s.598(2) was uncontentious. Further, the fact that an enterprise agreement was an instrument was not sufficient to enliven the power in s.602.
The Full Bench then found that the Fair Work Act did not confer a power on the Commission to make an enterprise agreement. Rather an enterprise agreement was made by the parties specified and in the manner described in ss.172 and 182.
The Full Bench found that the Commission at first instance correctly determined that an enterprise agreement was not an instrument made by the Commission and that consequently there was no power to correct or amend an obvious error, defect or irregularity in an enterprise agreement pursuant to s.602.
The Full Bench further stated that it was improbable that s.602 was intended to allow the Commission to exercise arbitral power to vary an enterprise agreement to ‘correct or amend any obvious error, defect or irregularity.’ This was because in other provisions of the Fair Work Act the legislature had taken particular care to constrain the Commission’s capacity to exercise arbitral power in respect of enterprise agreements. Further, ss.210 and 217 provided mechanisms for parties to vary enterprise agreements.
The Full Bench considered it was in the public interest to grant permission to appeal but for the reasons given, dismissed the appeal.
This matter relates to an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) against the decision in the first instance to approve the Adams Jones Pty Ltd Enterprise Agreement 2020 (the 2020 Agreement). The 2020 Agreement was approved on 19 January 2021 so that it was operative from 26 January 2021. The respondent, Adams Jones Pty Ltd (Adams Jones) is a company in the building, metal and civil construction industry.
The factual background to the matter was that the previous agreement to the 2020 Agreement, the Adams Jones Pty Ltd Enterprise Agreement 2018 (the 2018 Agreement) commenced on 28 June 2019 and had a nominal expiry date of 31 July 2021. The 2018 Agreement contained rates of pay operative from 1 August 2018, and then increased rates of pay on 1 August 2019 and 1 August 2020.
The 2020 Agreement was made on 25 September 2020, which is before the nominal expiry date of the 2018 Agreement on 31 July 2021. The 2020 Agreement had pay rates operative on and from the date of operation of the agreement and then increased rates of pay on and from 1 August 2021. Importantly, the rates payable under the 2020 Agreement from the date of its operation were less than the rates payable under the 2018 Agreement on and from 1 August 2020. The rates payable under the 2020 Agreement on and from 1 August 2021 were approximately 1% more than the rates payable under the 2018 Agreement on and from 1 August 2020.
The effect of s.58 of the Fair Work Act meant that upon operation of the 2020 Agreement, the 2020 Agreement would not apply to employees until after the nominal expiry date of the 2018 Agreement on 31 July 2021. This meant that employees would be entitled to be paid the rates prescribed by the 2018 Agreement as payable on and from 1 August 2020 up to 31 July 2021 and the rates prescribed by the 2020 Agreement as payable on and from 1 August 2021.
The explanatory material provided by Adams Jones to its employees included a ‘cover letter’ and ‘information document’ that did not contain any information on the interaction between the two agreements or correct information on the pay rates and effective pay increases in the 2020 Agreement.
The appeal was advanced by the CFMMEU on the basis that not all reasonable steps were taken by Adams Jones to explain the terms and the effects of the terms of the 2020 Agreement as required by s.180(5), and that the 2020 Agreement was not genuinely agreed to as required by s.186(2)(a). Therefore, the CFMMEU contended that the Commission erred in approving the agreement.
In its appeal submissions the CFMMEU provided evidence supporting its argument that the agreement was approved in error. The CFMMEU submitted that Adams Jones, when explaining the proposed 2020 Agreement to employees, had been working off an incorrect copy of the 2018 Agreement which did not include the increased pay rates from 1 August 2020 and therefore there was a misrepresentation as to the wage increases for which the 2020 Agreement provided. The CFMMEU also submitted that Adams Jones did not adequately explain that the 2020 Agreement would come into effect from the date of operation determined by the Commission or that the effect of s.58 was that the 2020 Agreement would not apply to employees until 1 August 2021.
Adams Jones accepted that they had made erroneous representations concerning the pay increases in the 2020 Agreement.
The Full Bench considered that permission to appeal should be granted, that the appeal be upheld and the first instance decision quashed. The Full Bench accepted that misrepresentations were made by Adams Jones, although not intentionally, about the quantum of the wage increase to which employees under the 2020 Agreement were entitled to given the rates that were operating under the 2018 Agreement until 31 July 2021. The Full Bench considered that this had the effect of Adams Jones not taking all reasonable steps under s.180(5) to explain the terms of the 2020 Agreement and their effects to the relevant employees, and therefore the agreement was not genuinely agreed to.
This matter looks at an application to deal with a dispute under the McCain Foods (Aust) P/L Ballarat Production Enterprise Agreement 2019. The dispute arises from a decision by McCain Foods (Aust) Pty Ltd (McCain) to refuse a request for conversion of a casual employee, Mr Stephenson, to full-time employment. Clause 31 of the Agreement says ‘Casual employees other than irregular casual employees, who have been engaged by the Company for a sequence of periods of employment under this Agreement during a period of six (6) months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time (depending upon the pattern of engagement) if the employment is to continue beyond the conversion process, in accordance with the provisions of Clause 13.4 of the Award’. The Award referred to is the Food, Beverage and Tobacco Manufacturing Award 2020. Clause 10.8 of the Award deals with casual conversion.
The question to be answered by the Commission was ‘Given the circumstances, was it unreasonable (in accordance with the terms of Clause 10.8(d) of the Food, Beverage, Tobacco Manufacturing Award 2020) for the Respondent to refuse to convert Mr Stephenson from casual to full time?’
Mr Stephenson worked on the night shift pizza crust line since about early 2018. He has worked variously on temporary contracts or as a casual employee. It was not disputed that for the period Mr Stephenson worked on a temporary contract, that period did not count as casual employment for the purposes of casual conversion. The night shift pizza crust line consists of 3 full-time permanent employees (operators) and one reliever. The reliever works so as to allow each of the operators to take their breaks without having to shut down the line. Since September 2019, an operator (employee X) on the night shift pizza crust line has been on an extended welfare plan. This has involved employee X working on day shift and receiving appropriate support from McCain until such time as he can return to his position on the night shift.
Mr Stephenson backfilled this position on a temporary contract for the period 14 October 2019 to 20 December 2019. Due to an administrative oversight by McCain, Mr Stephenson was not issued with a contract variation to extend his temporary contract for the period after 20 December 2019. Mr Stephenson however continued to work on the night shift pizza crust line from 6 January 2020 to August 2020 and was paid as a casual employee for this period. In July 2020 McCain realised that Mr Stephenson had not been issued with a contract extension from the end of 2019. On 17 July 2020 Mr Stephenson was given a letter in which he was offered an ‘Extension to Temporary Employment Contract’ which read in part ‘I refer to the temporary contract you are currently employed under, replacing an employee currently working in another role’.
Mr Stephenson put in a formal request to convert from casual to permanent employment on 25 August 2020. Relevantly Mr Stephenson said that he had worked on an uncontracted (casual) basis on the night shift pizza crust line from 6 January 2020 until the date of the request. Mr Svilicic, the Pizza Production Manager, said that he considered Mr Stephenson had been on a temporary contract backfilling a night shift pizza crust role from 14 October 2019 to 21 December 2019 and from January 2020 to August 2020. Mr Svilicic said Mr Stephenson was backfilling for employee X on a fixed term contract which was not a period of casual employment and hence, did not count for the purposes of casual conversion. Further, Mr Svilicic said the position that Mr Stephenson ‘was seeking conversion into was not a role that was available because it belongs to an employee who is on a welfare plan’. The request to convert from casual to permanent employment was refused.
The Commission was satisfied that from August 2019 to December 2019 Mr Stephenson was working on a temporary employment contract (the backfill contract), back filling for an employee who was on a welfare plan. The Commission was further satisfied that the temporary contract was not extended when Mr Stephenson returned from the Christmas close down on 6 January 2020. From this date, Mr Stephenson was paid as a casual employee although he remained on the night shift pizza crust line. The Commission was also satisfied that the failure to issue the contract extension was an administrative oversight, it was not a deliberate act on the part of anyone at McCain, however this did not alter Mr Stephenson’s status as a casual employee.
The Commission was satisfied that Mr Stephenson had completed at least 6 months employment as a regular and systematic casual employee at the time he lodged his conversion request with Mr Svilicic. In this respect the Commission was satisfied that Mr Stephenson was qualified to make the conversion request in accordance with clause 10.8 of the Award. Under clause 10.8 a decision to consent to a request does not have to be reasonable, justifiable or have any other consideration attached to it. The limitation is that a refusal decision, when made, must not be unreasonable. The Commission found if the employer’s refusal is unreasonable the clause strongly suggests that consent to the conversion request must then prevail, there is no other option.
The position of McCain in refusing the conversion request of Mr Stephenson was predicated on Mr Stephenson ‘backfilling’ the position occupied by employee X. It was planned that employee X would return to that position, with a welfare plan in place directed to that objective, and that it was reasonably foreseeable that this would occur within 12 months of the decision to refuse Mr Stephenson’s request. McCain said that therefore there was no vacant position in which Mr Stephenson could convert from casual to permanent employment.
The Commission found that McCain confused the conversion from casual to permanent employment with the existence of a vacant position. The Commission held that no such limitation on conversion is established in the Award clause. The Commission also found the fact that employee X may return to his position at some stage was not a reasonable basis on which to refuse the conversion request of Mr Stephenson. The Commission found that in the circumstances, where the only stated reason for refusal of the conversion request was that Mr Stephenson was backfilling for employee X, that the refusal for the conversion was not reasonable.
The Commission is extensively varying existing awards as a result of the 4 yearly review of modern awards.
The modern awards will be varied in 3 tranches. In a decision published on 27 April 2020 ( FWCFB 2124), the awards in tranche 3 were divided into smaller groups.
The technical and drafting matters for the Textile, Clothing, Footwear and Associated Industries Award 2010 have been completed. The varied award was published in advance and commenced operation on 1 February 2021.
To see the decision relating to this award, go to  FWCFB 6520.
The technical and drafting matters have also been completed for the:
The varied awards were published in advance and commenced operation on 1 March 2021.
Any outstanding substantive or common issues claims that have not yet been determined will be incorporated into the varied awards by way of a subsequent variation determination.
To access these awards, go to the Modern awards list on the Commission’s website.
To see the decision relating to these awards, go to  FWCFB 6040.
The President of the Commission has issued a statement relating to changes arising from the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.
The changes relate to:
A major case website has been established to publish material relating to the Casual terms award review 2021. A statement relating to the review has also been issued. You can subscribe to receive email updates when new documents relating to the review are published.
The Commission has issued the Equal Remuneration and Work Value Case decision.
A summary of the decision is available on the Summaries of significant decisions page on the Commission’s website.
On 13 January 2021 the Full Bench issued a Decision concerning an application made by the Australian Industry Group (AI Group) to vary the Nurses Award 2010 (the Nurses Award). AI Group sought clarity over certain rates payable to casual employees, which they submitted were ambiguous and uncertain. Submissions opposing this application were filed by the Australian Nursing and Midwifery Federation.
AI Group submitted that the Nurses Award ought be varied to make clear that overtime, weekend and public holiday rates payable to casual employees are calculated on a base hourly rate exclusive of the casual loading (Cumulative Basis) and not on an hourly rate that includes the casual loading (Compounding Basis).
In support of this claim, AI Group submitted that clause 10.4(b) of the Nurses Award creates an obligation to pay casual employees an hourly rate and a casual loading and that the clause creates two distinct entitlements, separate in nature. AI Group submitted that a casual employee’s ‘ordinary rate of pay’ was therefore 1/38th of the applicable weekly rate and did not include the casual loading.
The Full Bench considered the approach to ambiguity and uncertainty under s.160 of the Fair Work Act and previous decisions relevant to the clause including Domain Aged Care and previous award modernisation decisions.
The Full Bench did not accept the views that there was ambiguity in the relevant clause which results in uncertainty for the purposes of s.160.
AI Group also submitted that the Award contained an error in relation to the rate payable to casual employees for the performance of overtime. They contended that the relevant clause did not reflect the intention of the Australian Industrial Relations Commission which expressed that the Cumulative Basis of calculation was to apply in respect of overtime and the casual loading.
This view was rejected by the Full Bench who concluded that the evidence did not establish that the Award did not reflect the intention of the Award Modernisation Full Bench.
The Full Bench rejected AI Group’s application to vary the Nurses Award, finding insufficient evidence was provided to establish the relevant clauses were ambiguous or uncertain. As such the Full Bench were not satisfied that the proposed variations were necessary to achieve the modern awards objective.
This section provides summaries of the Full Court of the Federal Court of Australia and Federal Court of Australia reviews of Commission decisions.
The applicant made a general protections application to deal with alleged contraventions involving dismissal. The applicant was injured at work in 2014 and was unable to work after 1 October 2014.
The applicant alleged that his dismissal took effect in 2018. Coles Supply Chain Pty Ltd (Coles) raised a jurisdictional objection to the application; namely that the applicant’s dismissal took effect from the completion of his last shift on 1 October 2014. Coles later advanced an additional and alternative position that the applicant had not been dismissed at all because his casual employment had ended by the operation of an enterprise agreement. Coles contended that the Commission did not have the power to deal with the matter under s.368 of the Fair Work Act.
The Commission in the first instance found that the applicant’s employment came to an end on 1 October 2014 and that the application was out of time by 1,404 days. In a subsequent decision, an application for an extension of time was refused. On appeal, the Full Bench quashed those decisions and determined that the 21-day time limit in s.366(1) for making an application operated by reference to the date of dismissal alleged by the applicant in their application to the Commission.
Coles then applied for judicial review. The Full Court of the Federal Court quashed the Full Bench decision and held that the Commission did have the power to determine when a dismissal occurred and also whether a dismissal had occurred.
The applicant then applied for special leave to appeal the Full Federal Court decision in the High Court of Australia. The application was dismissed on 9 March 2021.
The applicant was dismissed after 32 years for breaching a Critical Safety Procedure (CSP) and applied to the Commission for relief from an unfair dismissal. The Commission in the first instance found that the applicant had operated within his own interpretation of the relevant CSP, and that he did not cause a safety incident because there was no person ‘in the line of fire’. The Commission found that there was no valid reason for dismissal, and that in the event there was a valid reason, the dismissal was nevertheless harsh and unfair. Reinstatement and remuneration for lost wages were ordered.
The respondent appealed submitting several grounds, including that the Commission had erred in finding that the incident leading to dismissal was not a CSP breach. The Full Bench found that the first instance decision was founded on a wrong principle in assessing the safety risks of the incident and overlooked the requirement for strict compliance with the CSP. The Full Bench found the first instance decision to be attended by appealable error, quashed the decision, and on redetermination dismissed the application for an unfair dismissal remedy.
The applicant sought to have the Full Bench decision reviewed by the Federal Court. The majority of the Full Court held that the Full Bench had conformed to statutory requirements and dismissed the application. Justice Kerr dissented, finding that the dismissal was harsh and unreasonable as the breach was of such minor consequence that it did not justify the termination of a long-serving employee.
The Commission has published the outcomes of its latest behavioural insights project.
The outcomes demonstrate how low-cost behavioural interventions can reduce complexity for parties and improve their compliance with legal processes.
Behavioural insights is a key part of the Commission’s ongoing strategy to reduce regulatory burden and increase access to justice for the Australian community.
For any questions, please email firstname.lastname@example.org.
The Commission has published an updated version of the Unfair dismissals benchbook.
The updated version reflects recent case law and rules changes, including information on:
The benchbook contains plain English summaries of the key principles of unfair dismissal case law and how these have been applied in Commission decisions. It is designed to provide information to parties to assist in the preparation of material for matters before the Commission.
The Unfair dismissals benchbook is designed to be read online and can be accessed on the Commission’s website. A printable version of the benchbook is also available for download.
The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) received Royal Assent on 26 March 2021 and commenced operation on 27 March 2021.
In summary the amendments:
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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