Fair Work Commission

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 engagement@fwc.gov.au.

Key decisions

This section provides summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act). In this edition of the Quarterly practitioner update, we have featured 10 Commission decisions issued between 1 July 2017 and 30 September 2017.

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

Equal remuneration

Application by United Voice, the Australian Education Union and the Independent Education Union of Australia for an Equal Remuneration Order

United Voice and the Australian Education Union (the Unions) made an application for an equal remuneration order pursuant to s.302(3)(b) of the Fair Work Act in relation to the children’s services and early childhood education industry. A separate application was also made by the Independent Education Union of Australia (the IEU). The applications were heard concurrently.

The Unions sought an equal remuneration order for ‘… employees who perform work in a long day care centre or preschool(s)’ covered by the Children’s Services Award 2010 (the Children’s Services Award); the Educational Services (Teachers) Award 2010; or the Educational Services (Schools) General Staff Award 2010. The IEU sought an equal remuneration order for ‘early childhood teachers (including early childhood teachers appointed as directors) who perform work in a long day care centre or preschool covered by the Educational Services (Teachers) Awards 2010’, other than those employed by a state or territory government.

A previous decision issued by the Full Bench [[2015] FWCFB 8200] (the Preliminary Decision) addressed preliminary issues, including jurisdictional prerequisites to be met prior to an equal remuneration order being made. The Preliminary Decision found that the Commission must be satisfied that an employee or group of employees of a particular gender to whom an equal remuneration order would apply do not enjoy remuneration equal to that of another employee or group of employees of the opposite gender who perform work of equal or comparable value. The Preliminary Decision held that the finding that Part 2–7 requires a comparator group of the opposite gender did not exclude the capacity to advance a gender-based undervaluation case under s.156(3) or s.157(2) of the Fair Work Act.

The Unions sought a hearing to determine whether the comparator proposed in the amended application satisfied in the findings in the Preliminary Decision.

In the current proceedings, the Full Bench determined that a comparative exercise has three elements:

• The two groups must perform work of equal or comparable value
• The two groups must be of the opposite gender, and
• The two groups must be unequally remunerated.

Once this jurisdictional prerequisite is demonstrated, the Full Bench determined the Commission has discretion as to whether to make an equal remuneration order. However, the Full Bench found that the preliminary question proposed by the Unions only met the first of the three elements required, and proposed an alternative.

The Full Bench rejected the proposition of a separate hearing to determine the Union’s proposed preliminary question but was prepared to conduct such a hearing on the basis of Full Bench’s proposed question (subject to any parties’ agreed changes).

Read decision [2017] FWCFB 2690.

Unfair dismissal matters

Appeal by Metropolitan Fire and Emergency Services Board against decision [[2017] FWC 1197] Re: Duggan

This matter relates to an appeal against a decision dismissing the employer’s jurisdictional objection that the employee had not served the minimum employment period. On10 May 2016, the employer informed the employee by letter of its decision to terminate his employment, but would ‘not implement this decision until the dispute between the parties is resolved’. The employer subsequently sent a letter to the employee on 24 May 2016 terminating his employment with immediate effect.

At first instance the Commission found that there was a valid notice of dismissal, but that the letter dated 24 May 2016 did not meet the requirements under s.117(1) of the Fair Work Act because the date of dismissal lacked sufficient certainty. The Commission found that the employee had served the minimum employment period and was protected from unfair dismissal. The appellant submitted that the Commission erred in reaching these conclusions.

The Full Bench granted permission to appeal in this matter, finding  that the interrelationship between the notice of termination requirements under s.117, and giving of notice of dismissal in accordance with s.383(a)(i), were an issue of importance that had not been previously considered by a Full Bench of the Commission.

The Full Bench found that the Commission at first instance was wrong to conclude that a notice of dismissal for the purpose of s.383(a)(i) must also meet requirements of s.117. The Full Bench found that s.383(a)(i) does not make any reference to s.117 nor does it state that the notice has to be in writing or inform the recipient ‘of the day of termination’ as required by s.117. The Full Bench found that an employer is obligated to meet the notice requirements under s.117 or in a contract of employment in order to avoid unlawful dismissal. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Accordingly the Full Bench found that a notice of termination which did not comply with s.117 may be effective to bring about the termination of the employment relationship.

The Full Bench found that part of the purpose of s.383(a)(i) was to provide certainty to both the employer and the employee as to whether the employment relationship is to be ongoing, or if not, when that relationship will come to an end. The Full Bench agreed with the Commission at first instance that a ‘notice of dismissal’ must either specify a time when the termination is to take effect or that time must be ascertainable. The Full Bench held that the letter of 24 May 2016 did not specify a time when the termination was to take effect, or made that time ascertainable thus not constituting a ‘notice of dismissal’ under s.383(a)(i).The Full Bench dismissed the appeal and upheld the decision at first instance.

Read decision [2017] FWCFB 4878.

Enterprise bargaining matters

Appeal by Mornington Peninsula Shire Council against decision and orders [[2017] FWC 4184], [PR595300] and [PR595296] Re: Australian Municipal, Administrative, Clerical and Services Union; Cross appeal by Australian Municipal, Administrative, Clerical and Services Union

Mornington Peninsula Shire Council (the Council) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) have been bargaining for three proposed enterprise agreements. The ASU lodged three applications for protected action ballot orders in respect of its members employed by the Council covered by the proposed agreements. At first instance the Commission determined to make a protected action ballot order (PABO). There was controversy concerning the form of the ballot question in each matter, and specifically whether parts of the question sought authorisation from employees for action that was not industrial action within the meaning of s.19 of the Fair Work Act. Out of ten actions the Commission determined to include six actions, excluding those that it determined did not fall within ambit of industrial action.

The Council and ASU lodged notices of appeal against the decision and orders made by the Commission. The Council advanced there were multiple errors of law, particularly regarding issues of construction. The ASU contended that there was a requirement to consider whether or not the action described had potential to be industrial action, and whether a stoppage of work could be conditioned by doing a particular act. The ASU contended that certain actions were within the definition of industrial action.

The Full Bench granted the Council and the ASU permission to appeal. The Council’s appeal was upheld in part and the orders at first instance varied. The ASU’s appeal was dismissed.

Read decision [2017] FWCFB 4740.

Enterprise agreement matters

Appeal by National Union of Workers against decision [[2017] FWCA 2940] Re: Sigma Company Limited t/a Sigma Healthcare

At first instance the Commission approved the Sigma (Berrinba) Enterprise Agreement 2017. The appellant advanced five grounds of appeal, however it was only necessary for the Full Bench to deal with the first ground. The appellant contended that the Commission erred in approving the agreement because even though the appellant was involved in the agreement making process as a bargaining representative, it had not been informed that Sigma had applied to the Commission for approval of the agreement. The Full Bench found that permission to appeal should be granted in this matter, as the appeal raised important questions concerning the proper construction of Rule 24(3) of the Fair Work Commission Rules.

The Full Bench held that there was an error in the approval of the agreement. However, at first instance the Commission could not have had any knowledge that the appellant was or had been a bargaining representative. In contrast, the material filed in the appeal indicated that Sigma knew that the appellant had been appointed as a bargaining representative for one employee who would be covered by the agreement. The appeal was upheld and the decision at first instance quashed. The matter was referred to Asbury DP for rehearing.

Read decision [2017] FWCFB 3892.

Dispute resolution matters

Appeal by Construction, Forestry, Mining and Energy Union against decision [[2017] FWC 1763] Re: Endeavour Coal P/L t/a Appin Mine

This matter was an appeal against a decision concerning a dispute arising under the Appin Colliery & West Cliff CPP Enterprise Agreement 2015. At first instance the Commission determined that the agreement did not require payment of a shift loading in addition to public holiday penalties to employees working on a public holiday. The Full Bench was satisfied that the appeal raised important issues and granted permission to appeal.

The Full Bench considered whether the principles relevant to the construction of enterprise agreements were correctly applied at first instance, and whether the construction of the agreement was correct. There are well established principles regarding the construction of agreements in Golden Cockerel and, since the first instance decision was handed down, in Berri. The Full Bench found that the Commission at first instance did not have regard to the purpose of relevant provisions in the agreement in construing its wording as clear and unambiguous, and did not have regard for the text of the agreement viewed as a whole. The Full Bench found that the conclusion reached by the Commission was not correct. The appeal was upheld and the decision at first instance was quashed.

Read decision [2017] FWCFB 4487.

Right of entry matters

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union and Ors

On 24 December 2015, the Commission made findings (the First Decision) in relation to an application by the applicant under s.508 of the Fair Work Act that certain CFMEU officials had misused their rights of entry [[2015] FWC 6889]. On 7 March 2016, the Commission issued a Decision (the Second Decision) in relation to the s.508 application in which the Commission held that it was appropriate to suspend and, in some instances, revoke the entry permits of certain CFMEU officials [[2016] FWC 811]. Orders giving effect to the Second Decision were issued on 16 March 2016, prescribing time periods in which certain CFMEU officials were banned from being issued entry permits. The CFMEU lodged an appeal against the Second Decision and sought a stay of several of the Orders. On 18 March 2016, a stay of the Orders (excluding the Orders made in relation to two persons) was granted [[2016] FWC 1692]. The First Decision was not affected by the stay order and was not challenged on appeal. On 27 May 2016, a Full Bench heard the appeal and issued a Decision upholding the appeal, quashing the Second Decision  and quashing the Orders of 16 March 2016 [[2016] FWCFB 3241].

The matter and question of what Orders, if any, should be made arising from the First Decision, excluding the question of whether Orders should be made against the CFMEU, was referred to the Commission for a full rehearing. The Commission was not satisfied that the Orders now sought by the applicant achieved the object of Part 3–4 of s.480 of the Fair Work Act.

The Commission held that a finding of misuse of entry rights does not, as a matter of course, lead to the conclusion that there must be restrictions imposed on rights of entry. The Commission held that the proposed Order proffered by the CFMEU should be issued as a draft Order, with the parties to make further submissions. The Commission held that this draft Order recognised the findings of misuse and was appropriate having regard to the nature of those misuses, as noted in Fair Work Commission (decision) and as such, the Commission was satisfied this draft Order achieved the object of Part 3–4 pursuant to s.480.

Read decision [2017] FWC 3595.

Procedural matters

Appeal by Hambridge against decision [[2017] FWC 2148] Re: Spotless Facilities Services P/L

In this matter the appellant appealed a decision refusing an extension of time to lodge his application for unfair dismissal and to dismiss his application. The application filed with the Commission (the first application) was not on the correct prescribed form. The appellant became aware that the wrong application was filed at the telephone conciliation conference and discontinued the first application and lodged new unfair dismissal application using the correct form (the second application) 55 days outside the prescribed 21 day period.

The Full Bench found it was in the public interest to grant permission to appeal as three novel issues had potential wider application. The Full Bench found the Commission erred to not have accounted for critical matters identified as relevant considerations. The appeal was upheld and the first instance decision quashed. Full Bench re-determined the issue of whether the appellant should be allowed a further period of time to make the second application. The Full Bench found that the error amounted to an irregularity in the form the application was made. It was not unreasonable for the appellant to hold the belief that the correct application was lodged. The Full Bench found that the appellant acted promptly by discontinuing the first application and filing the second application, rectifying the error. The Full Bench found that the reasons for the delay were highly unusual and beyond the appellant’s control. The matters favoured that an extension of time be granted as exceptional circumstances existed. There was no prejudice to the respondent. The extension of time was granted.

Read decision [2017] FWCFB 2811.

Application by Mr O’Connor

This matter related to an application to revoke a decision dismissing an unfair dismissal application and the subsequent Full Bench decision refusing permission to appeal the first instance decision. Leave was also sought for a further appeal to a new Full Bench. The applicant’s father complained that the original decision was incorrect in stating he attended meetings as a support person and was advised to apply under s.603 of the Fair Work Act to vary the decision to remove the information he considered to be erroneous. The grounds provided in seeking relief were bias relating to support person reference; apprehended bias on the Commissioner’s part; and new evidence. The application was referred to the Commissioner who made original decision.

The Commission found the assertion of pre-judgment arising from a directions hearings was unsupported by evidence, and that a disagreement with a decision or deflated confidence after an adverse finding cannot on its own demonstrate bias. The Commission found that it was not established that the original decision was affected by actual or apprehended bias, or that there was any proper basis upon which the Commission should refuse to determine the application. The Commission held that the power in s.603(1) must be construed not to permit a single Member to vary or revoke an appeal decision by a Full Bench [Grabovsky]. Acceding to the request to allow new evidence, and leave to appeal to a new Full Bench would undermine the statutory appeal process and be inconsistent with the public interest that there be finality in litigation. The Commission determined that neither decision was to be revoked and no re-hearing would be ordered. The application was dismissed.

Read decision [2017] FWC 3398.

Appeal by Construction, Forestry, Mining and Energy Union against decision [2017] FWCA 1734] Re: Pyramid Constructions (WA) P/L and Ors t/a Pyramid

In this matter the CFMEU appealed the decision approving the Pyramid Group Enterprise Agreement 2017. After the agreement was lodged the CFMEU contacted the Commission expressing concerns over the agreement and sought access to the Form F16 and Form F17, and a copy of the notice of representational rights. The Agreement was approved without the CFMEU being heard. Following the Decision being issued, an email was sent by the Commission to the CFMEU which indicated that in dealing with the CFMEU’s correspondence there had been an administrative error, in that the correspondence had not been drawn to the Commission Member’s attention prior to the Decision being issued. The Full Bench in applying Ron Southon held that the public interest in the open administration of justice required that the CFMEU be given access to the forms. The Full Bench found that there had been a denial of procedural fairness. The appeal was upheld. The respondent indicated its intention to discontinue the agreement approval application.

Read decision [2017] FWCFB 3410.

Glen Cameron Nominees P/L t/a Glen Cameron Trucking v Transport Workers’ Union of Australia

This matter relates to an application to revoke a Decision [[2017] FWCFB 2907] where the Full Bench had refused the appellant permission to appeal. The Full Bench became aware that permission to appeal was not required following the decision as it was a right conferred on the parties pursuant to clause 21 of the Glen Cameron Nominees Pty Ltd NSW EBA 2015-2019.

The appellant opposed the application, submitting that any power to revoke was excluded by the terms of the dispute resolution procedure which rendered the Commission’s decision as final. The Full Bench disagreed with appellant’s approach. The Full Bench considered and applied DP World and held that the powers ordinarily possessed by the Commission in relation to proceedings before it were able to be exercised. The appellant also relied on Ross J in Grabovsky: ‘The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise’.

The appellant submitted that there had been no change in circumstances, nor that the Decision was based on incomplete or false information, so there was no apparent basis for the exercise of any revocation power which might exist. The Full Bench rejected the submission and held that the extract merely outlined the circumstances where the power to vary or revoke a decision had been generally exercised. The appellant then asserted a reasonable apprehension of bias. The Full Bench held that the three instances relied upon by the appellant did not satisfy the test for reasonable apprehension of bias, and therefore was not satisfied that the Commission was rendered unable to exercise its power to revoke the decision. The Full Bench held that as the Agreement conferred a right of appeal, and as the Full Bench Decision refused permission to appeal, the dispute was not resolved and a further decision must be issued to rectify the matter and to bring the dispute to finality. Decision [[2017] FWCFB 2907] was revoked. The appeal is to be determined to finality with the matter to be relisted before Johns C for further directions.

Read decision [2017] FWCFB 4636.

Key court reviews

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

Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123

Matter reviewed: [2017] FWCFB 584

A Full Federal Court has dismissed an application by the Construction, Forestry, Mining and Energy Union, The Association of Professional Engineers, Scientists and Managers, Australia and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union to quash the decision of the Commission made on 27 January 2017 regarding the Black Coal Mining Industry Award 2010 (the 2010 Award) made pursuant the four-yearly review of modern awards, and the subsequent variation to the 2010 Award made on 20 March 2017.

The relevant variation concerned the capping of retrenchment payments by reference to a maximum of two weeks’ pay for each year of employment to a maximum of 15 years (and so, 30 weeks). This variation replaced an earlier provision that had an age based limitation, where the age of retirement was assumed to be 60. This provision was removed from the 2010 Award by the Commission in April 2015 upon recognition that this age based discrimination did not comply with State anti-discrimination legislation or the modern awards objective.

The applicants raised a number of concerns with this decision, including that the 2015 decision by the Commission had taken into account considerations foreign to both the mandatory considerations in s.134(1) of the Fair Work Act, and the modern awards objective. The applicants also argued that the Commission failed to direct itself to the proper statutory task in that it did not consider whether a cap was necessary to achieve the modern awards objective. The Federal Court disagreed, stating that the Commission did not stray from its required statutory task. The Commission stated that the varied award would, in fact, meet the modern award objective of providing a fair and relevant minimum safety net of terms and conditions. The Federal Court upheld this statement, and also stated that the Commissions task was not, in fact, to address a jurisdictional fact about the need for change but rather review and evaluate the award to decide whether or not this variation met the objective.

Read the Federal Court decision [2017] FCAFC 123.

Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112

Matter reviewed: [2016] FWCFB 8120

A Full Federal Court has upheld the decision of a Full Bench of the Commission which found that the Commission exceeded jurisdiction by acting outside the scope of the dispute. The Full Bench held that general issues of fairness of the termination of employment were incapable of agitation under the dispute settlement procedure.

The applicant’s employment as a recruit firefighter was terminated by the Metropolitan Fire and Emergency Services Board (MFB), and the dispute arose about implications of conduct in a previous occupation on suitability for firefighting duties. A national police certificate provided by the applicant to the MFB as part of the recruitment process did not include information on proceedings at that time in the New South Wales Civil and Administrative Tribunal in which orders were made against the applicant including an order prohibiting him from providing any health services. The applicant failed to disclose these proceedings to the MFB during the recruitment process.

The applicant was employed under the Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2010 (the Agreement), on a probation period. At first instance, the Commission found that as the Commission had been notified of the dispute which remained unresolved, it would be inconsistent with the Agreement for the MFB to terminate the applicant’s employment. The Full Bench allowed the appeal and set aside the Commissioner’s orders with the MFB subsequently terminating the applicant’s employment.

The applicant applied to the Federal Court seeking declarations that the Full Bench erred in law on the face of the record by:

• deciding that the probation policy was not properly part of the dispute; and
• deciding that s 194(c) of the Fair Work Act 2009 (Fair Work Act) invalidated provisions of the Agreement … to the extent that those provisions may be relied on to resolve a dispute concerning a proposed termination of employment within six months of commencement of the employment.

He also sought an order quashing the Full Bench’s decision or the issuing of a writ of certiorari to quash the decision.

The Full Court held that the paragraphs of the Full Bench decision relied on by the applicant to form a reviewable error of law were not part of the award, and that legal error was not apparent in either of these paragraphs. The applicant also argued that the Full Bench erred in construing and applying various provisions of the Fair Work Act, regarding that that these provisions had no application to the resolution of the dispute which had been referred to the Commission. The Full Bench’s decision was supportable on the basis of the finding it made that the Commission went beyond the scope of the referred dispute. It was common ground that the orders of the Commission could not stand, because it had no power to make them. The Commission had power, as a private arbitrator, to make a determination; but could not make binding orders of the kind which the Commission was empowered to make under the Fair Work Act.

Read Federal Court decision [2017] FCAFC 112.

Award modernisation – 4 yearly review

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

Penalty rates

Following the penalty rates Decision on 23 February 2017 [[2017] FWCFB 1001] and the transitional arrangements Decision on 5 June 2017 [[2017] FWCFB 3001] a number of award specific issues remained outstanding. Interested parties were directed to file applications to vary the in relation to these issues by 28 July 2017. Applications to vary were received from four organisations:

• Clubs Australia Industrial in relation to the Registered and Licensed Clubs Award 2010
• Hair & Beauty Australia in relation to the Hair and Beauty Industry Award 2010
• Restaurant and Catering Australia in relation to the Restaurant Industry Award 2010, and
• Australian Retailers Association in relation to the General Retail Industry Award 2010.

Submissions were also received from the Pharmacy Guild of Australia in relation to the Pharmacy Industry Award 2010, an individual and the Tradies Group in relation to the Registered and Licensed Clubs Award 2010. Separate Full Benches have been constituted to deal with each of the 4 applications set out above. Each application has an award specific matter page on the Commission’s website. The Pharmacy Guild confirmed that it would not press any further variation to the Pharmacy Industry Award 2010.

The Shop, Distributive and Allied Employees Association (SDA) and United Voice sought a judicial review of the Commission’s penalty rates decisions [[2017] FWCFB 1001, [2017] FWCFB 3001, and [2017] FWCFB 1551] and the subsequent determinations varying five modern awards. The SDA and United Voice sought writs of certiorari quashing each of the determinations and mandamus requiring the Commission to conduct a review of the awards under s.156 according to law. A Full Court of the Federal Court heard the applications in September 2017 and handed down a decision on 11 October 2017 [[2017] FCAFC 161] dismissing the applications.

Casual and part-time employment

The Full Bench handed down its decision on 5 July 2017 [[2017] FWCFB 3541].

A summary of the decision [2017] FWCFB 3541 (PDF) was also published on the same day.

The Full Bench accepted the ACTU’s proposition that the unrestricted use of casual employment without the safeguard of a casual conversion clause may operate to undermine the fairness and relevance of the safety net. The Full Bench also drafted a standard conversion clause to be inserted in 85 modern awards which do not currently contain a provision of this nature and sought submissions. Following the decision a number of parties made further submissions and some sought the opportunity to make further oral submissions. The matter was listed for conference before Vice President Hatcher to consider a number of award specific issues on 14 and 15 November 2017.

Plain language

Tranche 2 decisions

The Full Bench issued a decision [[2017] FWCFB 4447] including further awards in the plain language re-drafting common issue. The Commission rejected the submission that the Fair Work Act requires making a finding that a ‘modern award is not simple, or not easy enough to understanding, and its failings in this regard are significant enough for it to be concluded that the award does not provide a fair and relevant safety net’ before the award can be varied to introduce plain language (para [16]). The ACTU sought to have plain language re-drafting proceed under s.160 of the Fair Work Act rather than as a part of the 4 yearly Review. The Full Bench noted that the considerations under s.134(1)(g) is expressed in quite different terms to the jurisdictional facts under s.160.

The Full Bench decided that the Cleaning Services Award 2010 and the Security Services Industry Award 2010 be included in the second tranche and be dealt with together. The Fast Food Industry Award 2010 and Hair and Beauty Industry Award 2010 will commence after the substantive claims in each award have been determined. The Full Bench will give further consideration to inclusion of the Building and Construction General On-site Award 2010, the Manufacturing and Associated Industries and Occupations Award 2010 and the Vehicle Manufacturing, Repair, Service and Retail Award 2010 after the substantive claims in this award have been determined. Further consideration will also be given to inclusion of the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010, and the Children’s Services Award 2010 after the technical and drafting and substantive issues have concluded.

Standard clauses

In a Statement of 20 July 2017 [[2017] FWCFB 3745] the Full Bench expressed a number of provisional views about standard clauses after a series of conferences held before Commissioner Hunt in late 2016 to early 2017. Further submissions were invited on the provisional views expressed.

A Hearing was held on 21 August 2017 during which an issue arose in relation to deductions where an employee fails to give the notice prescribed by the clause. A Statement [[2017] FWCFB 4355] was issued the same day inviting further submissions on this issue. In a Decision [[2017] FWCFB 4419] the Full Bench finalised the following clauses:

• Individual flexibility arrangements
• Major workplace change
• Consultation about changes to rosters or hours of work
• Dispute resolution, and
• Redundancy.

Further submissions were invited on the Termination of employments; Transfer to lower paid job on redundancy; and Employee leaving during redundancy notice period standard clauses. Interested parties filed submissions for consideration of the Full Bench.

National Training Wage

A Decision on 15 August 2017 [[2017] FWCFB 4174] finalised the plain language re-draft of the National Training Wage (NTW) Schedule to be inserted into the Miscellaneous Award 2010. The Miscellaneous Award was varied to insert the plain language NTW Schedule on 28 September 2017 [PR596349]. Award-specific schedules based on the parties’ draft schedules were published as an attachment to a Statement of 28 August 2017 [[2017] FWCFB 4457]. Interested parties were invited to make submissions on the award specific schedules.

Plain language exposure drafts

Plain language exposure drafts were published in the General Retail Industry Award 2010, the Security Services Industry Award 2010 and the Cleaning Services Award 2010. Interested parties have made submissions and participated in plain language drafting conferences to resolve issues arising from the plain language re-drafting of these awards. Further conferences were also held in relation to the Clerks’—Private Sector Award 2010, the Restaurant Industry Award 2010 and the Hospitality Industry (General) Award 2010 to progress issues arising out of plain language drafting. In a Statement of 5 July 2017 [[2017] FWCFB 3570] the Full Bench invited further writing submissions on outstanding issues in relation to the Pharmacy Industry Award 2010 and a conference was held on 27 July 2017 to address these issues.

Annual leave

The review of the shutdown provision to be included as part of the annual leave clause in the Black Coal Mining Industry Award 2010 is ongoing. The Full Bench issued a Decision on 27 March 2017 [[2017] FWCFB 959] setting out a provisional view that a revised shut down provision be inserted into the Black Coal Award. The Commission issued a Statement [[2017] FWC 5861] and a Determination [PR597595] on 9 November 2017 referring the matter to the plain language Full Bench to determine the final form of a shutdown clause to be inserted. 

Abandonment of employment

Following a Full Bench decision on 13 January 2017 in Iplex the Commission commenced a review of abandonment of employment terms in six modern awards. The matter was listed for hearing in Sydney on 14 August 2017. Following the hearing the Full Bench issued a further Statement [[2017] FWCFB 4250] giving parties 21 days to make additional submissions.

Payment of wages

In a Decision on 1 December 2016 [[2017] FWCFB 8463] the Full Bench set out provisional model terms relating to:

• the payment of wages and other amounts, and
• payment on termination of employment.

The Decision also considered the issue of accrual of wages. Following the Decision interested parties made a number of submissions. On 19 September 2017 the Full Bench issued a Statement and Directions [[2017] FWCFB 4817] seeking submissions from interested parties in relation to the provisional model terms and the issue of accrual. 

Family & domestic violence clause

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

On 15 September 2017 the Full Bench issued a Statement [[2017] FWCFB 4729], a Research Reference List (PDF) and a Background Paper (PDF). The Background paper set out three model terms giving effect to the preliminary views for the consideration of the parties. The matter was listed for conferences and further hearings in October 2017.

Blood donor leave application

A Full Bench was constituted to consider an application by the Shop, Distributive and Allied Employees’ Association to insert provisions for Blood donor leave and Bone marrow donor leave into five modern awards. In an amended application dated 5 April 2017, the SDA withdrew its claim to insert Bone marrow donor leave in the five awards. The Full Bench handed down a Decision on 5 September 2017 [[2017] FWCFB 4621] rejecting the claim on the basis that it is not necessary in order to achieve the modern awards objective.

Resources & initiatives

Outside sitting hours pilot

The Commission has launched an Outside Sitting Hours pilot for unfair dismissal matters in Melbourne.

The pilot aims to provide greater flexibility to parties attending the Commission by offering the opportunity to attend hearings and conferences outside standard business hours.

More information can be found in the media release (PDF).

Workplace Advice Clinic

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

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

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

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

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

Benchbooks

The Bechbooks are designef to help parties prepare materials for matters before the Commission. The Commission has recently published updated versions of all benchbooks, reflecting legislative changes, including changes to the high income threshold, and the amount payable for pecuniary penalties.

The Commission has also launched an interactive online version of our Industrial action benchbook.

Online versions of other Commission benchbooks will also be published as they become available.

General update

Annual report

The Commission’s 2016–17 annual report is now available for download following its tabling in the Australian Parliament.

Download the Fair Work Commission annual report 2016–17 (PDF).

Filing fees & high income threshold increased

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

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

Quarterly statistical reports

The Commission’s quarterly statistical reports for the 4th quarters of 2016–17 are now available.

The reports can be accessed from the Quarterly reports page on our website. They cover the period from 1 April 2017 to 30 June 2017.

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

Corporate plan

The Commission has published its Corporate Plan 2016–17. The plan covers the periods of 2017–18 to 2020–21 and has been prepared in accordance with the requirements of paragraph 35(1)(b) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Public Governance, Performance and Accountability Rule 2014.

Download the Corporate Plan 2017–18 (PDF).

Client experience surveys & research

Wallis Social & Market Research has been engaged to conduct a client service survey on behalf of the Commission. The survey was launched in October 2017 to invite feedback and ideas from unfair dismissal applicants, respondents and representatives. Survey data will be collected throughout October and November 2017, and monthly surveying is scheduled to begin in February 2018.

Findings from the survey will be used and reported in a range of ways throughout 2018 to benchmark and monitor service performance and inform new and improved practices and resources.

More information about the survey is available on our website.

More updates

You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website. 

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au.