Welcome to the Fair Work Commission's quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
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This section provides summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act). In this edition of the Quarterly practitioner update, we have featured 10 Commission decisions issued between 1 October 2017 and 31 December 2017.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The appellant in this matter was employed on a series of time-limited contracts. At the end of the term of the last contract the respondent did not offer the appellant a further contract. The appellant contended that this constituted a dismissal within the meaning of s.386(1)(a) of the Fair Work Act, and that his employment was terminated at the initiative of employer.
The respondent contended that there was no dismissal and that the employment terminated through the effluxion of time. At first instance the Commission considered itself bound by Lunn and held that there was no dismissal at the initiative of employer.
The appellant appealed on the basis that the Commission erred in relying on Lunn and erred in finding that the anti-avoidance provision in s.386(3) was not engaged.
The Full Bench majority considered whether the interpretation and application of s.386(1)(a) should continue to be guided by Lunn. The majority held that because Commission at first instance considered itself bound to follow Lunn despite reservations about its correctness, its consideration of whether the appellant was dismissed within the meaning of s.386(1)(a) was ‘artificially constrained’, constituting appealable error.
The majority held that the contract was not for a specified period and so the s.386(2)(a) exclusion did not apply. The appeal was upheld and the decision at first instance quashed. The matter was referred back to the Commission for re-determination.
The applicant in this matter was an Uber driver. The respondent submitted that the applicant was a contractor not an employee and that, based on a proper consideration of the contractual relationship between the parties, and the lack of a wages-work bargain, the Commission could not be satisfied that the applicant was an employee.
The Commission considered Jiang Shen Cai and was satisfied that the relevant indicators of an employment relationship were absent in this case and dismissed the application.
Jurisdictional issues were raised by the City of Burnside relating to whether the applicants were working in a ‘constitutionally covered business’ and whether the applicants were ‘workers’ within meaning of the Fair Work Act and the Work Health and Safety Act 2011 (Cth).
The Commission was satisfied that the City of Burnside was a ‘person’ within the meaning of s.789FD(3) of the Fair Work Act, and also found that the City of Burnside conducted a ‘business or undertaking’ within meaning of s.789FD(3). However the Commission was not satisfied that trading activities of the City of Burnside were substantial enough for the council to be characterised as trading corporation. The Commission found that the applicants were not working in ‘constitutionally-covered business’ and therefore had no jurisdiction to hear applications.
This matter concerned an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for a bargaining order against Oaky Creek Coal P/L (OCCPL) in relation to employees employed at Oaky North Underground Coal Mine (Mine). The CFMEU and OCCPL have been bargaining for a replacement enterprise agreement since May 2015.
CFMEU members commenced protected industrial action in May 2017. After a vote on the proposed agreement was rejected the CFMEU withdrew notices of protected industrial action for 15 and 16 July and employees reported for work. Upon their return their swipe cards did not operate and the employees were directed to remove CFMEU branded shirts previously permitted to be worn.
Employees resumed protected industrial action on 17 July and on 18 July OCCPL issued letters to 21 employees alleging breaches of policy relating to conduct engaged in on the picket line. Five employees were also issued letters alleging breaches of the social media policy. The CFMEU asserted that the issuing of allegation letters, the surveillance of CFMEU members, and rescinding permission to wear CFMEU clothing on site was capricious or unfair conduct as it undermined freedom of association and collective bargaining.
Since 20 July 2017, OCCPL had been implementing employer response action, and had locked employees who were CFMEU members out. The Mine continued to operate with staff and employees of contractors.
The Commission found it was objectively capricious or unfair for OCCPL to issue employees with allegation letters in relation to their conduct, and was satisfied that direction in relation to the wearing of Union clothing was also capricious. It also found the level of security operations and their scope was unfair on the basis that it was a disproportionate response to the conduct of CFMEU and its members. The Commission issued orders.
The application for approval of the Pennyco Pty Ltd T/A Zarraffas West Ipswich 2016 EBA was signed by Michael Corrigan of 'Platinum ER P/L' (Platinum), with the accompanying statutory declaration (F17) stating that the requirements of the Fair Work Act had been met. The agreement was approved by the Commission.
Lawyers for Pennyco Pty Ltd later advised the Commission that the F17 had contained incorrect information, and that the employer had no employees at the time of approval and that no vote on the agreement had taken place. The lawyers stated that Platinum had provided the F17 to the employer and that it was signed without being properly read.
The employer said they were told by Mr Corrigan to simply complete the address section of the F17 and sign it in the presence of a Justice of the Peace, before returning it to Mr Corrigan to lodge.
An appeal was lodged against the approval of the agreement on the grounds that the employer had no employees and the agreement did not pass the BOOT.
The appeal was upheld and the decision approving the agreement quashed. The Commission referred the matter to the Australian Federal Police for investigation as to whether any criminal offence had been committed.
The decision at first instance found that the Commission did not have the jurisdiction to deal with a dispute submitted under clause 10 of the MC Labour Services P/L and the CFMEU (Victorian Construction and General Division) Labour Hire Industry Enterprise Agreement 2016-2018.
The Full Bench was satisfied that a divergence of views existed in decisions of the Commission regarding its jurisdiction in dealing with a matter referred to it under a dispute settlement procedure in an enterprise agreement and granted permission to appeal.
The Full Bench found that the Commissioner's conclusion that she had no jurisdiction to deal with the dispute took into account, and was consistent with, the legislative framework, and found that s.186(6) of the Fair Work Act does not mandate an unconditional or universal role for the Commission or other independent person in the settlement of disputes arising under an agreement.
The Full Bench found that clause 10.4 of the agreement set pre-conditions for the capacity of the Commission to deal with a dispute and that those pre-conditions were not met.
The applicant in this matter sought an order that the respondent allow and not intentionally hinder or obstruct its permit holders from exercising its rights under the Fair Work Act to hold discussions during meal or other breaks in lunchrooms. The issue for consideration was whether the applicant could use both lunchrooms A and B for discussions, or only lunchroom A.
The Commission considered the meaning of s.492(3) of the Fair Work Act. The Commission found the word ‘any’ may be used to signify each and every room or area, no matter how many, and noted that relevant employees are able to use both lunchrooms for taking meal or other breaks. The Commission held that the relevant permit holder was entitled to use either or both lunchrooms where they have entered the site pursuant to s.484. The Commission determined that the respondent’s refusal to allow permit holders to use lunchroom B was inconsistent with the permit holders’ rights under s.492(3).
This matter related to an appeal by the Australian Municipal, Administrative, Clerical and Services Union (ASU) against the a decision made by a delegate of the Registered Organisations Commissioner (the Delegate). At first instance the Delegate declined to allow the late lodgment of prescribed information under s.189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) which rendered the ASU liable for a civil penalty. The grounds for the appeal included that the delegate's conclusion rendered the ASU liable for a civil penalty and that the delegate erred in refusing to grant an extension of time.
The Full Bench found that the Delegate's decision not to allow a later date for lodgment was an appealable error. Permission to appeal was granted and the appeal was upheld. The decision of the Delegate to refuse to allow a later date for the lodgment of prescribed information was quashed.
This matter was initially listed for hearing on the question of whether permission to appeal should be granted. After hearing from the parties the Full Bench determined that one contention of appealable error in the appeal was arguable and raised an issue of general importance such that it would be in the public interest to grant permission to appeal.
The grounds were that the appellant was misled by the Commission regarding the respondent's legal representation, and that there was misrepresentation and deceit relating to legal representation.
The Full Bench held that the concept of 'appearing' for a party in legal proceedings was not unambiguous. It was apparent under ss.596 and 609 of the Fair Work Act that 'representation' under s.596 is more than just advocacy at hearing. The Full Bench concluded that s.596 was not confined to permission for courtroom advocacy.
The applicant had lodged an unfair dismissal application. and had later requested that the Commission exercise discretion under s.586 of the Fair Work Act to amend the application to general protections application involving dismissal. The applicant submitted that he was only able to receive legal advice about submitting the wrong application after the prescribed time limit for lodgment had expired.
The Commission was satisfied that the applicant intended to make an application in relation to the allegation his employment was terminated because he inquired about his pay. The Commission was satisfied that his unfair dismissal application was a general protections application made using the wrong form. The Commission granted the application and amended the irregularity in the form filed.
This section provides summaries of High Court and Federal Court reviews of Commission decisions.
The ALDI Regency Park Agreement 2015 was approved by the Commission. The Transport Workers' Union (TWU) and the Shop, Distributive & Allied Employees Association (SDA) appealed to the Full Bench of the Fair Work Commission (Full Bench) on the grounds that the Agreement should have been made as a greenfields agreement, and that it did not satisfy the ‘better off overall test’ (BOOT). The Full Bench upheld the Commission’s decision.
The SDA appealed to the Full Court of the Federal Court (Full Court). The Full Bench decision was overturned on the grounds that the Commission erred in finding the agreement had been genuinely agreed to, as at the time the Agreement was made no employees were covered. The Full Court also found that the Commission had erred in finding that the Agreement passed the BOOT.
ALDI appealed to the High Court.
The High Court unanimously allowed, in part, the appeal from the Full Court by ALDI. The High Court quashed the decision of the Full Bench, and issued a writ of mandamus, returning the matter to the Full Bench to determine whether the Agreement passes the BOOT in accordance with the law.
The Federal Court of Australia declared the RECS (QLD) PTY LTD Enterprise Agreement 2015, approved by the Commission, ‘void and of no effect’ after an appeal was made by the Construction, Forestry, Mining and Energy Union (CFMEU).
The Federal Court found there was insufficient detail provided in explanations to employees regarding terms and effects of the Agreement to satisfy the statutory requirement of s.180(5) of the Fair Work Act. The Federal Court held that the Agreement, applying to only three employees, may have been an enforceable private agreement between the parties, but not an agreement susceptible to approval by the Commission under s.186. The employer’s submission that the Commission’s power to approve an Agreement depended merely on the existence of genuine agreement between the parties was rejected. While it didn’t matter that the Agreement was intended to cover, in the future, a large number of employees across 11 diverse modern awards, His Honour noted that an Agreement with this coverage could not be genuinely agreed to by three employees with limited employment experience.
The President of the Fair Work Commission issued a statement on 11 December 2017 regarding the requirement for the Commission to conduct a second 4 yearly review of modern awards. In light of the fact that the first review is on-going, the President expressed a provisional view that the second review should not commence until the current review has been completed and parties have been given an opportunity to consider how the recently reviewed modern awards are operating in practice. A range of interested parties responded to the provisional view agreeing with the President’s suggestion. On 2 January 2018 a subsequent statement was issued confirming the provisional view and noting that an indicative timetable for the completion of the current review would be forthcoming.
The Commission has published the following amended approved forms:
The statutory declaration forms for agreement applications have revised wording in relation to the 'Better Off Overall Test'. The application for entry permit form now requires proposed permit holders to disclose middle names.
The Commission's assistance to parties as part of the New Approaches: Cooperative and productive workplaces jurisdiction is the subject of an ongoing evaluation process by independent researchers.
A new case study arising from this research has now been published on our website: News Corp Australia and the AMWU Printing Division (PDF). To find out more about this work, or to view other case studies, please visit our New Approaches page.
Recordings and presentations from the Commission's 2017 International perspectives on dispute resolution conference are now available to download or view on our website.
The conference was facilitated by Dr Marian Baird AO, and brought together local and international heads of workplace relations and dispute resolution agencies to discuss developments and innovations in practice. The conference featured presentations and panel sessions on topics including dispute resolution, equal remuneration, user design and stakeholder engagement. They were joined by leading local academics and experts to reflect on Australia's progress in areas including online dispute resolution, user design and interested–based negotiation.
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 firstname.lastname@example.org.