Fair Work Commission

Welcome

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.

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 October 2018 and 31 December 2018.

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

Dismissal matters

Unfair dismissal matters

Appeal by Spinifex Australia P/L t/a Spinifex Recruiting against decisions [[2018] FWC 1363] and 21 June 2018 [[2018] FWC 3686] Re: Tait

Background

At first instance in this case the Commission found that the employee had been unfairly dismissed. The appellant sought permission to appeal against both a jurisdictional decision of March 2018 as well as the merits and compensation decision of June 2018. The jurisdictional appeal was lodged 86 days outside of 21 day time limit. The Full Bench rejected the appellant’s submission that the jurisdictional decision was in the nature of a preliminary or interlocutory decision. The application to extend time for filing the appeal against the jurisdictional decision was rejected.

The Full Bench agreed that the appeal of the merits and compensation decision raised important matters in relation to employees engaged by labour hire companies. Permission to appeal was granted. The appellant submitted that the Commission failed to pay sufficient regard to the Temporary Employment Agreement (TEA) and that the employee’s assignment could be terminated at any time at the discretion of the host employer. The appellant further submitted that the host employer’s discretion that the employee was no longer to perform work for it amounted to a valid reason for termination, as the employee was unable to perform the inherent functions of their role. The appellant also submitted that it intended to find the employee an alternative assignment but could not, and that the employee had in fact walked away from her employment.

Outcome

The Full Bench found that the decision at first instance was consistent with the approach adopted in Adecco, Pettifer and Tasports. The Full Bench found that the TEA contained no assignment or conclusion date, and that employee’s assignment was extended twice without any indication when it may end. The Full Bench was satisfied that the Commission correctly described the employee’s work with the host employer as ‘an indefinite duration’. The Full Bench rejected the appellant’s submission that the employee ended her employment, and found no substance to the appellant’s claim of an alleged failure by the Commission to provide adequate reasons for decision at first instance. The appellant submitted that the amount of $15,000 in compensation was too high in relation to the temporary nature of the appellant’s employment. The Full Bench was satisfied with the Commission’s application of Sprigg given its findings of there being no valid reason for dismissal and that the work performed was for an indefinite period. The Full Bench held that the grounds of appeal were not made out. The appeal was dismissed and the corresponding stay order set aside.

Read decision [2018] FWCFB 6267.

Whitfield v Master Tree Ninja t/a Tree Ninja/Adelaide Palm Tree Removal

Background

In relation to this application for an unfair dismissal remedy the respondent raised a jurisdictional objection that the applicant was not dismissed. The applicant argued that the respondent materially altered his contract of employment by announcing its decision to demote him. The applicant was promoted to the position of leading hand in March 2018. The respondent removed the applicant from his leading hand position due to alleged poor performance. The applicant argued that his employment was terminated on the respondent’s initiative due to the demotion and the absence of the respondent to offer him shifts in his former job. The respondent argued that it had made no decision to dismiss the applicant and that it did not intend to end the employment relationship.

Outcome

The Commission found that by removing the contractual right to be employed as a leading hand, and the absence of any action by the respondent to offer shifts was the removal of a fundamental right in the contract of employment. The applicant’s contract of employment was therefore repudiated by the respondent. The Commission found that the dismissal was at the respondent’s initiative when the applicant was advised that he would be removed from his position as leading hand. Even though concerns were held by the respondent regarding the performance issues of the applicant, the Commission found that these performance issues warranted counselling or a warning, but they did not amount to a valid reason for dismissal. The Commission found that the dismissal was harsh, unjust or unreasonable. The Commission considered that reinstatement was not appropriate in the circumstances and ordered compensation of $2,230.76 taxed according to law, and an amount of $211.92 to be paid into the applicant’s superannuation fund.

Read decision [2018] FWC 6666.

Appeal by Galbraith against decision [[2017] FWC 4410] Re: Wilmar Sugar P/L t/a Wilmar Sugar

Background

At first instance in this matter, the Commission found that the appellant was not dismissed as they were a seasonal employee and had finished work when the particular season ended. The appellant appealed the decision on the grounds that the Commission did not distinguish between an employee contracted for a specified season and an employee engaged for multiple seasons. The appellant also argued that the Commission incorrectly applied s.382(2)(a) of the Fair Work Act, failed to consider the continuity of service provisions in the enterprise agreement, and that she was denied procedural fairness.

Outcome

The Full Bench held that the Commission took all relevant matters into account and that there was no denial of procedural fairness. The Full Bench was not satisfied that any of the ‘appellant’s grounds of appeal were made out. The Full Bench granted permission to appeal however the appeal was dismissed, with each party to bear their own costs.

Before publication of the decision, the Full Bench received an application from the ‘appellant’s Counsel for the admission of fresh evidence. This application was refused as the evidence added nothing to the evidence in the case or the appeal.

Read decision [2018] FWCFB 6713.

Klooger v Foodora Australia P/L

Background

The applicant in this unfair dismissal matter performed work as a delivery rider. The signed contract stipulated that the applicant had been engaged as an independent contractor and not an employee. The applicant was dismissed for a purported breach of the respondent’s intellectual property rights. The applicant asserted that he was an employee of the respondent rather than an independent contractor.

Outcome

The Full Bench considered that a determination of whether a person has been engaged as an employee or a contractor involves issues of both fact and law. The particular factual circumstances of the relationship under examination need to be subjected to the legal principles that have been established as relevant to the proper characterisation to be provided to that relationship. The multifactorial test applied involves the consideration of various factors, including a number of identified indicia with no single factor being decisive, and an overriding requirement for examination of the totality of the relationship between the parties so as to ultimately provide a sound basis upon which to determine whether the relationship was one of employment or independent contractor. The Full Bench considered a large body of case law including Brodribb, Vabu, Abdalla, and French Accent.

The Full Bench found that the applicant was working in the respondent’s business, as part of that business, and not in an independent operation. Therefore, the correct characterisation of the relationship between the applicant and the respondent was that of employee and employer. It was found that the dismissal of the applicant involved a complete absence of opportunity for the applicant to be heard before the decision to dismiss was made, and therefore the dismissal was harsh, unjust and unreasonable. The Full Bench found that reinstatement was not appropriate in the circumstances due to the respondent having been placed into voluntary administration. The Full Bench ordered compensation in the amount of $15,559.00.

Read decision [2018] FWC 6836.

Miller v Urbanite Bikes P/L t/a Urban Pedaler

Background

The Commission found that the applicant in this matter had been unfairly dismissed [[2018] FWC 6280] and ordered that the respondent pay the applicant compensation within 21 days. The respondent requested a variation of the Order so that they could pay the compensation in instalments, as their financial circumstances were such that it could not make the payment as ordered by the Commission in one lump sum.

Outcome

The Commission sought submissions and evidence, needing to be satisfied that the respondent’s financial circumstances did not allow for a lump sum payment, and that only a 12 month instalment plan could be managed. The respondent provided limited information about its finances and included a request for confidentiality. The applicant opposed the payment plan, he did not believe that the respondent would abide by the instalment plan, based on based on past experience he said he had with the respondent on payment of a separate debt. The Commission was not satisfied that any evidence supported a variation of the Order. The Order was reissued and the respondent was ordered to pay applicant lump sum of $3,025.20 taxed according to law plus 9.5% superannuation within 21 days of the date of this decision.

Read decision [2018] FWC 7035.

Emery v City of Stirling

Background

In this unfair dismissal application the Commission’s original decision was overturned on appeal by the Full Bench [[2018] FWCFB 2279]. The matter was remitted to the Commission to rehear and determine.

The applicant had modified the air conditioning units in company vehicles without authorisation. The applicant was dismissed for endangering his own and the safety of others, the misuse of property/assets and for breaching the Fleet Management Practice and the Code of Conduct. The actions of the applicant caused damage to the vehicle and resulting in the respondent incurring costs to repair it.

Outcome

The Commission found that the investigation by the respondent was not sound and proper. The disciplinary meeting denied the applicant fair opportunity to respond. The Commission held that any person said to have engaged in misconduct is entitled to have their case investigated on its merits and not on the basis on what other employees may or may not have done or perceptions of what is ‘common’. The applicant had made a claim against his manager, saying he had given permission for the modification to be made. The manager had denied this however the respondent did not consider it necessary for the manager to be removed from the investigation. The Commission found this was a conflict of interest and a denied the applicant procedural fairness.

The Commission found that there was a valid reason for dismissal, however the applicant was not notified of the totality of the reason for his dismissal. Because the respondent did not adhere to its own policies and procedures the Commission found that the dismissal was unreasonable. There were substantial deficiencies in the investigation process and a conflict of interest. The Commission held that the procedural issues outweighed the finding of a valid reason. The Commission found that the applicant was unfairly dismissed. The matter will be listed to deal with remedy.

Read decision [2018] FWC 6853.

Dunn v Artha Property Group P/L t/a Artha Property Group

Background

The issue raised in this application for unfair dismissal remedy was in relation to whether the applicant satisfied the minimum employment period. The applicant was engaged as a real estate agent on a commission only basis. The respondent, a small business employer, considered that the applicant was engaged as a casual employee but not on a regular or systematic basis, and that she had no reasonable expectation of continuing employment. It was argued that the applicant had not completed the minimum period of service required to be protected from unfair dismissal under s.382(a) of the Fair Work Act.

Outcome

The Commission was satisfied that the applicant was not as a casual employee, finding her employment was as a commission only pieceworker under the Real Estate Industry Award 2010, and was continuous until her employment came to an end. The Commission found that the applicant performed work for the respondent at various times spanning a period well in excess of one year and therefore satisfied the minimum employment period. The jurisdictional objection as to whether the applicant satisfied the minimum employment period was dismissed. The matter was listed for a Directions Hearing to settle a program for the remaining jurisdictional matter and substantive matter.

Read decision [2018] FWC 4179.

Macklin v BHP Coal P/L

Background

In this application for unfair dismissal the applicant had been employed by the respondent for a period of 38 years’ in various roles. The applicant had most recently been employed as a Grader. The applicant was dismissed after he refused directions from his supervisor to train and assess contract staff. The applicant believed that this was not part of his role, and that the contract staff would ‘take his job’.

The respondent submitted that two separate directions had been given to the applicant to assess and train the contract staff. The applicant submitted that he did not receive a second direction, and that he had an honestly held belief that he was not required to assess and train contract staff as a part of his role. The applicant further submitted that he was not clearly told that there would be consequences if he continued to refuse this duty. The applicant had previously received several unrelated warnings for his conduct and attitude.

Outcome

The Commission found that the reasons given to the applicant for the dismissal did not constitute all of the reasons for the dismissal. The respondent’s evidence revealed that there were more reasons than those included in the show cause letter and termination letter that formed part of the decision to dismiss. The Commission found that there was no valid reason for the dismissal. Because the applicant was not informed of all of the reasons for his dismissal, and because he was not afforded an opportunity to respond, the Commission found that his dismissal was harsh, unjust and unreasonable. The Commission considered that reinstatement was the appropriate remedy in the circumstances. The Commission also ordered that the applicant’s continuity of service be maintained, and ordered remuneration for lost wages totalling $44,961.49 plus superannuation, to be paid and taxed according to law.

Read decision [2018] FWC 7429.

General protections matters

Greenslade v Totally Aussie Security (QLD) P/L and Associated Entities t/a TAS Security

Background

In this matter the applicant lodged her application on 23 May 2018, alleging that her employment was terminated in contravention of the general protections provisions of the Fair Work Act. On 24 May the applicant lodged a claim in the Magistrates Court of Queensland (Court) against 10 defendants (including the respondent). The applicant sought that the Magistrates Court deal with the matter as an ‘Employment Claim’ and claimed the amount of approximately $150,000. The respondent raised a jurisdictional objection on the basis that s.725 of the Fair Work Act barred the applicant from pursuing the s.365 general protections application as a result of lodging the claim in the Magistrates Court.  

Outcome

The Commission considered that the purpose of s.725 is to prevent a party from ‘double dipping’ in circumstances where they may make multiple applications seeking a variety of remedies. Further, s.732 applies to an ‘application or complaint under another law’ (which includes the law of a State) in relation to the dismissal. Section 733 provides that a reference to an application of a complaint in relation to a dismissal ‘does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled to as a result of the dismissal’.

The Commission accepted the applicant’s submission that the claim within the Magistrates Court was a claim seeking payment of entitlements due under the contract of employment, and thus fell within the scope of s.733. The Commission found the Magistrates Court claim cannot be properly described as an application or complaint which s.732 would preclude. The Commission dismissed the jurisdictional objection.

Read decision [2018] FWC 6151.

Hawkins v Vet Supersavers t/a Vet Supersavers

Background

This matter involved a general protections application to deal with contraventions involving dismissal lodged on 24 July 2018. The applicant claimed that she was overseas on a period of approved leave when the employer sent a termination letter to her house. The applicant contended that she was not aware of the dismissal until she returned from her leave on 16 July 2018. 

Outcome

The Commission considered Australian Tax Office v Wilson with regard to a dismissal not taking effect prior to being communicated. The Commission also considered Ayub v NSW Trains with regard to the mere delivery of a letter not constituting communication of that dismissal, the relevant date of dismissal could only be when the applicant has had a reasonable opportunity to read the letter. The Commission found that the earliest the applicant could have known about her dismissal was upon her return to Australia on 16 July 2018, the first reasonable opportunity that she had to open her mail and read the letter of dismissal. The Commission held that application was made within time and the respondent’s jurisdictional objection was dismissed.

Read decision [2018] FWC 6027.

Bargaining & agreement making matters

Enterprise agreement matters

Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decisions [[2018] FWC 4638] and [[2018] FWCA 5740] Re: Noorton P/L t/a Manly Fast Ferry

Background

At first instance the Commission approved the Manly Fast Ferry – Sydney Harbour Services – On-Board Crew – GPHs and Hosts – Enterprise Agreement 2017 with undertakings. Of the 44 employees who cast a valid vote, 23 employees voted to approve the Agreement.

The appellant advanced three grounds of appeal:

1. whether the relevant employees genuinely agreed to the Agreement
2. whether the employees who were requested to approve the Agreement by voting for it were employed at the time, and
3. whether the Agreement passed the better off overall test (BOOT).

Outcome

The Full Bench considered the second ground of the appeal first, that is whether the employees who were requested to approve the Agreement by voting for it were employed at the time. An employer should only make a request under s.181(1) of the Fair Work Act to employees who are employed ‘at the time’, as opposed to those who are not employed at the time but who might otherwise be regarded as ‘usually employed’ [Swinburne]. All of the employees asked to vote to approve the Agreement were casual employees. The Full Bench held that a person who is a casual employee, but who is not working on a particular day or during a particular period, is unlikely to be employed on that day or during that period. There was no evidence before the Commission of the terms of engagement of the casual employees, or the positions into which the employees were, at the time they were asked to vote, engaged. The Full Bench held that at least some of the employees who were asked to vote to approve the Agreement did not work on the day of the vote or during the access period. The Full Bench considered that the Commission erred in concluding that the relevant employees who were casual employees, and who were asked to vote to approve the Agreement, were all ‘employees employed at the time’. The Full Bench held that due to the paucity of evidence before the Commission about the nature of, and the terms under which employees were engaged as casual employees, it could not have been satisfied that the Agreement was made in accordance with s.182(1).

With regard to whether the Agreement passed the BOOT, the Commission decided at first instance that both the Ports, Harbours and Enclosed Water Vessels Award 2010 (the Ports Award) and the Marine Tourism and Charter Vessels Award 2010 (the Marine Tourism Award) were relevant. An employer may be covered by more than one modern award. Clause 4.9 of the Ports Award provides that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee, and to the environment in which the employee normally performs the work. It was common ground that the majority of the work to be covered by the Agreement would fall within ‘ferry’ work, and be otherwise covered by the Ports Award. It was not clear to the Full Bench how it was that, on the state of the evidence, the appellant’s proposition as to the exclusivity of coverage of the Ports Award could be said to be wrong. No evidence about the extent of the activities which would be primarily covered by the Marine Tourism Award was proffered. The Full Bench found that employees cannot be said to be better off overall under the Agreement when it is compared to the Ports Award. The Full Bench considered that the Commission erred in its assessment that the Agreement passed the BOOT, even when the undertakings were taken into account.

In considering whether the relevant employees genuinely agreed to the Agreement the Full Bench held that there was a notification time, and on the evidence, notices of employee representational rights were given within the timeframe prescribed in s.173(3). The Full Bench determined that this ground of appeal failed.

The Full Bench was satisfied that the appeal raised important questions about the operation of s.182(1) and about the application of the BOOT. Permission to appeal was granted. The appeal was upheld on grounds 2 and 3 of the notice of appeal. The decisions at first instance were quashed and the application for the approval of the Agreement remitted to Sams DP to determine having regard to the Full Bench decision.

Read decision [2018] FWCFB 7224.

Appeal by The Australian Workers’ Union against decision [[2018] FWCA 6202] Re: Oji Foodservice Packaging Solutions (Aus) P/L

Background

At first instance the Commission approved the Oji Foodservice Packaging Solutions (Aus) P/L Employee Enterprise Agreement 2018 and decided to redact the wage rates from the published version. Oji had requested the redaction of the wage information of the Agreement on the basis of the ‘highly competitive nature’ of the industry.

The grounds of appeal advanced were that the Commission erred in redacting the wage rates in the published version of the agreement where there was no power to do so, or alternatively, if the Commission did have a discretion to redact the wage rates, the Commission erred in the exercise of that discretion.

Outcome

The Full Bench first considered the AWU’s standing to bring the appeal, giving consideration to the decision in Main People. Although none of the employees who voted to approve the Agreement were members of the AWU, and the AWU was not a bargaining representative for the Agreement, the Full Bench considered that for the reasons it advanced, the AWU had the requisite interest in the Decision. The Full Bench was satisfied that the AWU is a person aggrieved by the decision to redact the wage rates from the Agreement.

This matter is the first occasion on which this issue, the proper construction of ss.594(1)(c) and 601(4)(b) of the Fair Work Act, has been the subject of consideration by a Full Bench. The Full Bench found it was in the public interest to grant permission to appeal.

The AWU submitted that there was nothing in s.601, or any other provision of the Fair Work Act, to suggest that the requirement to publish an enterprise agreement means anything other than that the agreement must be published in full. Oji submitted that ‘publish’ is sufficiently wide to encompass the publication of an enterprise agreement with wage rates redacted. The Full Bench disagreed. Section 601(4)(b) uses language in a mandatory form, and on an ordinary grammatical reading the words ‘must publish’ and ‘an enterprise agreement that has been approved by the FWC under Part 2-4’ means publishing the whole ‘enterprise agreement’. The Commission does not approve a redacted agreement. The Full Bench found that the Commission lacked the requisite power to make the redaction decision. The appeal was upheld and the redaction decision was quashed. The Agreement without the redaction of the wage rates was published on the Commission’s website.

Read decision [2018] FWCFB 7501.

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth)

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) (the Amending Act) was passed in December 2018. The Amending Act amends s.188 of the Fair Work Act to enable the Commission to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that those errors were not likely to have disadvantaged employees, with effect from 12 December 2018.

The Revised Explanatory Memorandum provided the following examples of the types of errors contemplated:

• employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3))
• employees being requested to approve a proposed enterprise agreement on the 21st day after the last notice of employee representational rights (Notice) was given, rather than at least 21 days after the day on which the last Notice was given (subsection 181(2))
• the inclusion of the employer’s company logo or letterhead on a Notice
• the inclusion of additional materials that are stapled with a Notice, or
• minor changes to the text of the Notice that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than ‘contact your employer’).

Commission staff undertook a review of s.185 applications for approval of enterprise agreements that were before the Commission and identified a number of examples of apparent failures to satisfy s.188(1) of the Fair Work Act, to which s.188(2) may apply. These matters reflect procedural or technical issues that are commonly identified in relation to s.185 applications. The President referred these matters to a Full Bench for hearing. The resulting decision deals with this aspect of these s.185 applications only; it does not determine whether the agreements concerned are otherwise capable of approval.

Read decision [2019] FWCFB 318.

Disputes & industrial action matters

Dispute resolution matters

Grabovsky v United Protestant Association of NSW Ltd t/a UPA

Background

This application relates to an alleged dispute under The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017. The applicant was assisted by her husband, Mr Grabovsky. The United Protestant Association of NSW (UPA) is a not for profit operator of residential aged care facilities. Between 30 March 2004 and 20 December 2017 the applicant was a part-time care service employee at a UPA facility in NSW. The applicant was classified as Grade II with a Certificate III in Care Support Services.

For the last four years of her employment, since 27 August 2013, the applicant had been absent from work. On 20 December 2017 (the same date that the present application was filed) the applicant received a letter of termination, dated 14 December 2017, advising that her employment had been terminated. The applicant contended this dispute was about the ‘severe workload’ UPA ‘recklessly imposed’ upon the applicant, ‘disregarding the applicant’s health and wellbeing in favour of profit’. It was also contended that the applicant ‘was grossly underpaid’ and that as a result of the ‘severe workload’ the applicant was injured in her employment, resulting in disability.

The Commission had regard to all of the material put before it. The present dispute is one of a number of proceedings that the applicant has commenced against or involving UPA. There have been 16 other applications lodged between 5 March 2014 and 24 September 2018. In the present matter UPA objected to the Commission exercising its power on the ground that the Agreement does not provide the Commission with the power to arbitrate with respect to workloads, other than by agreement between the parties; and that UPA did not agree to the arbitration in respect of workload management.

The applicant asked that the Grievance and Dispute Resolution Procedures clause and the Workload Management clause be declared unlawful. The applicant’s husband, Mr Grabovsky, contended that the legal aspects of the current matter (C2017/7037) were ‘different to previous matters’. This claim was rejected by the Commission, finding that the claim for underpayment was based on a classification dispute, and was different to the matter that was previously before Lawler VP (C2014/3313). The respondent made an application to dismiss the present proceedings, submitting that ‘the Proceedings should be dismissed in accordance with the principles of res judicata or issue estoppel and otherwise represents an abuse of process’. UPA also made an application for an order for costs on the basis that the application (C2017/7037) had been commenced and maintained vexatiously, or without reasonable cause.

Outcome

The principle of res judicata arises where a matter has already been decided and is no longer subject to an appeal. The principle is intended to provide finality to proceedings, so that the same issues are not continually re-litigated. It denies a reconsideration of a matter already decided and prevents the making of contradictory judgments, or multiple judgments, about the same subject matter or legal issues. Having regard to the principles of res judicata the Commission held it was not at large to make decisions that were inconsistent with, or repugnant to decisions and orders made in the same, or substantially the same, matter.

The Commission held that the question before it was the same as that decided by Booth DP [[2014] FWC 5634]. In that matter, the Deputy President found that the answer to the question ‘Does the Commission have the power to arbitrate the workload issue in the absence of the agreement by UPA?’ was ‘no’. The Commission held that the answer remains the same today. There cannot be a consideration of the ‘factual and legal dispute of the workload management application’ without the consent of UPA. As UPA has not provided its consent, that is the end of the matter. Permission to appeal the Booth DP decision was refused [[2014] FWCFB 7533]. The Commission was satisfied that the principles akin to res judicata ought to be applied, and consequently the application in C2017/7037, in so far as it is based on a dispute about Workload Management, must be dismissed. The application had no reasonable prospects of success.

Turning to the underpayment claim, Lawler VP (in C2014/3313) found that the applicant’s duties could properly be characterised as involving the assistance and support of residents with medication utilising medication compliance aids, and therefore fell within the prescribed duties for the CSE Grade 2 classification [[2015] FWC 2504]. Permission to appeal the Lawler VP decision was refused [[2015] FWCFB 3926]. The Commission was satisfied that the principles akin to res judicata ought to be applied and, consequently, the application in C2017/7037, in so far as it is based on a dispute about the applicant’s classification, must be dismissed. The application had no reasonable prospects of success.

As the Commission had decided that the application should be dismissed because it had no reasonable prospects of success, it was not necessary to decide the application for interim orders made by Mr Grabovsky. For completeness, the Commission observed that had it been required to decide the application for interim orders, the application would have been dismissed.

All that remained outstanding to determine was the UPA’s application for costs against the applicant. The Commission decided to defer doing so, with the expectation that the applicant would appeal this decision. The Commission held it was prudent to await the outcome of any appeal before dealing with the question of costs.

Read decision [2018] FWC 7227.

Note: An appeal pursuant to s.604 (C2018/7219) was lodged against this decision and the order arising from this decision.

Industrial action matters

Appeal by Construction, Forestry, Maritime, Mining and Energy Union against decisions of 31 August 2018 [[2018] FWC 5101], and 6 September 2018 [[2018] FWC 5634] Re: Boom Logistics Limited; WGC Crane Group P/L

Background

In this matter the appellant was a bargaining representative for certain employees of WGC Crane Group Pty Ltd (WGC) and Boom Logistics Pty Ltd (Boom). The appellant had been advancing claims for proposed enterprise agreements with both WGC and Boom. WGC and Boom made applications for orders under s.418 of the Fair Work Act in respect of notices given by the appellant of purported protected industrial action, which the respondents contended was not, or would not be protected action.

The respondents maintained that the appellant was engaging in a course of conduct that was pattern bargaining within the meaning of s.412. At first instance the Commission determined that the appellant was, for the purposes of s.412(1)(b), engaged in a course of conduct that involves seeking common terms to be included in proposed enterprise agreements with WGC and Boom. The Commission therefore concluded the appellant was not genuinely trying to reach agreement with either Boom or WGC and made final orders that industrial action must stop, not occur and not be organised.

The principal challenge to the decisions and orders in each appeal concerned the Commission’s conclusion that the appellant’s course of conduct engaged with s.412(1) of the Fair Work Act.

The appellant advanced 10 grounds of appeal. Grounds 9 and 10 concerned the orders made and the appellant contended that because the Commission did not identify the industrial action found to be threatened, or the industrial action to be stopped by the orders, and because the period of operation of the orders was three months which in the circumstances was unreasonable, irrational and plainly unjust, the orders were beyond jurisdiction and were invalid.

Outcome

The Full Bench was satisfied that grounds 1–5, grounds 7–8 to the extent that they relate to the first five grounds, and grounds 9 and 10 enliven the public interest, with the consequence that permission to appeal must be granted. This decision only dealt with grounds 9 and 10 as the other grounds, particularly grounds 1 and 2, were complex required some lengthy consideration before the Full Bench would be able to announce its decision.

The Full Bench proceeded to examine grounds 9 and 10 on the basis that the Commission was correct (without deciding that issue) in concluding that the appellant and engaged in a course of conduct that is pattern bargaining within the meaning of s.412 with the consequence that the industrial action in relation to which orders were sought by WGC and Boom was not or would not be protected industrial action.

The appellant contended that the orders did not identify, and were not directed to the industrial action contained in the notices. The Full Bench considered Esso Australia P/L v The Australian Workers’ Union. The Full Bench held that the power to make an order under s.418 is exercisable if the Commission concludes that the existing or potential industrial action is not, or will not be protected, and then to order that the particular existing or potential industrial action stop, not occur or not be organised as the case requires. The orders made by the Commission plainly distinguished action which was a ‘strike’ from action that was an ‘other stoppage of work’. Industrial action of which notice was given was ‘an indefinite strike’.

The Full Bench held that the evidence and material before the Commission did not support a conclusion that beyond an ‘indefinite strike’ there was any other stoppage of work that was happening, or threatened, impending or probable, or being organised. In the view of the Full Bench the Commission erred in making an order extending to any ‘other stoppage work’ beyond the indefinite strike.

The Full Bench considered it self-evident, given the basis for concluding that the industrial action was not or would not be protected action, that the circumstances which led to that conclusion might change over a relatively short period. It would be unsurprising in the face of the findings made by the Commission that the appellant might take steps to alter the terms it is seeking to include in a proposed agreement and/or alter the approach that it takes in bargaining with WGC and with Boom in order that its conduct is no longer caught by s.412. The Full Bench held that in the circumstances of this case, s.418(1) only required orders to operate for a period sufficient to ensure that the strike not be organised and that the threatened strike not occur. A period of operation of three months was clearly excessive. The Full Bench considered that the Commission was in error in fixing a period of operation of three months in respect of each order and held the view that a period of operation of two weeks in the circumstances would be more than sufficient to ensure the strike not be organised and that the threatened strike not occur.

The appeal was upheld on grounds 9 and 10 with the Full Bench proposing to vary the decision and orders made by the Commission to the extent necessary to give effect to its decision. The Full Bench will separately and at a later date issue its decision on the remaining grounds of appeal.

Read decision [2018] FWCFB 6200.

Hitachi Construction Machinery (Australia) P/L v Construction, Forestry, Maritime, Mining and Energy Union

Background

This matter relates to an application pursuant to s.418(1) of the Fair Work Act for an order that industrial action not occur and not be organised. The order was directed to the CFMMEU, certain representatives of the CFMMEU and service employees who have the CFMMEU as bargaining representative (employees). In this matter the Commission considered whether periods of travel before and after the notified stoppage (the impugned conduct) was ‘industrial action’ within the meaning of s.19 of the Fair Work Act.

The issue which arose was that the employees ceased work on-site at customer’ sites and travelled back to the Muswellbrook branch before the notified commencement time of the two hour stoppage. Having participated in the two hour stoppage at the Muswellbrook branch (or elsewhere), the employees then travelled back to the customer’ sites after the notified cessation time of the two hour stoppage to resume work.

The effect of this conduct was that for the period of travel time before and after the notified commencement and cessation time of a two hour stoppage, (ranging mostly from 15-90 minutes each way), numerous employees were not on-site performing work but were travelling in a vehicle. The employees were paid for such travel time pursuant to clause 11.1 of the Hitachi Construction Machinery (Australia) Pty Ltd Service Enterprise Agreement 2014 because they are required to undertake the ‘travel for purposes relating to HCA business’.

Outcome

The Commission found that the impugned conduct not work customarily performed by employees. It was accepted that employees had, and continue to have, a concern about a risk to their health or safety, however the Commission found that the employees’ concerns were not reasonable upon the evidence, as there was no imminent risk to health or safety. The impugned conduct was found to not be based on this concern. The Commission found that the health and safety exception was not established on the evidence and found that the impugned conduct was industrial action. The Commission was satisfied on the evidence that industrial action was impending or probable. The Commission issued an order that the ‘industrial action’ stop, not occur or not be organised (as the case may be) for the period specified in the order.

Read decision [2018] FWC 6835 and read order PR702085.

Hillsbus Co. P/L v Bajwa and others

Background

This matter involved an application made by Hillsbus Co. P/L under s.418 of the  Fair Work Act, seeking an order that unprotected industrial action by employees stop. It was alleged that 128 employees engaged in unprotected industrial action as part of bargaining for a new enterprise agreement by participating in a collective personal leave campaign. The extraordinary number of employees absent on personal leave on 7 November 2018 resulted in the employer being unable to operate approximately 300 specific bus services.

Outcome

Evidence provided by the employees broadly indicated the reasons for their personal leave. The Commission found that this material would likely satisfy the basis upon which the relevant provisions of the ComfortDelGro Cabcharge Pty Ltd and the Transport Workers’ Union of Australia Fair Work Agreement 2015 would oblige the employer to make payment in respect of the personal leave absence of that particular individual. However the Commission found the collective personal leave campaign, when properly examined, represented covert industrial action involving a large number of individuals making claims for personal leave such that there could be no proper basis to establish this event was nothing more than an unusual coincidence.

The Commission was satisfied that a campaign of covert industrial action was undertaken and that there was proper basis upon which to find that this concerted activity satisfies the meaning of industrial action as contained in s.19 of the Fair Work Act. The Commission was satisfied that the industrial action was not protected, and although normally the individual applications for personal leave would require the employer to make payment for absence, no payment to be made by employer to any individual employee for the period they participated in the unprotected industrial action.

Read decision [2018] FWC 6861.

Procedural matters

Appeal by Shorey against decision [[2018] FWCA 4749] Re: FES Coal P/L; Construction, Forestry, Maritime, Mining and Energy Union

Background

This matter relates to an appeal against a decision to approve the FES Coal P/L Greenfields Agreement 2018 (the approval decision). FES Coal applied to have the notice of appeal dismissed, this was supported by the CFMMEU. The Full Bench considered whether the appellant was a ‘person aggrieved’ by the approval decision. The Full Bench noted that ‘person aggrieved’ was capable of extending beyond persons whose legal interests are affected by a decision in question, however mere intellectual or emotional concern were not enough.

Outcome

The time for determining standing is not fixed but depends on the circumstances. In this matter the appellant was not, and had never been, an employee of FES or covered by the relevant agreement. The appellant was not involved in negotiations for the agreement and was not a representative of other persons affected. There was also no suggestion that the agreement operated to restrain the appellant’s legal rights. Therefore, there was no basis for concluding that the appellant had a legitimate interest in ensuring that the Commission acts within its jurisdiction, as distinct from that of those directly affected by the approval decision. The Full Bench held that the appellant had no relevant interest beyond that of an ordinary member of the public and therefore did not have standing. The Full Bench found the appeal to be incompetent. The appeal was dismissed.

Read decision [2018] FWCFB 6100.

Award modernisation – 4 yearly review

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth)

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) (the Amending Act) was passed in December 2018. The Amending Act repealed the provision for 4 yearly reviews in the Fair Work Act with effect from 1 January 2018. The current 4 yearly review commenced in 2014 and, while many aspects of the review are finalised, it is not yet completed. The current review will be concluded under transitional provisions included in the Amending Act. Further amendments leave the residual framework in Division 5 of Part 2-3 of the Fair Work Act as the primary mechanism for the Commission to make, vary and revoke modern awards if necessary to achieve the modern awards objective.

Proposed 2019 calendar – substantive Full Benches

The President of the Commission issued a Statement [[2018] FWC 7869] which outlines the progress of substantive claims made as part of the 4 yearly review.

In total 62 Full Benches have been constituted to hear and determine substantive issues, out of which 32 have been heard and determined. There are 23 Full Benches which are part heard or have not yet commenced, and seven Full Benches have reserved their decision. The awards that are subject of these Full Benches are set out in the Statement.

In relation to the claims that are part heard or have not yet commenced, a provisional 2019 timetable (PDF) is provided at Attachment A of the Statement. This provisional timetable includes listings for other major cases, such as the Annual Wage Review and the Equal Remuneration Case but does not capture every matter that will be listed in 2019.

Family Friendly Working Arrangements

[AM2015/2]

In September 2018 the Full Bench expressed a provisional view that all modern awards should be varied to include a model term to facilitate requests for flexible working arrangements for certain employees. This view would be displaced for any particular award if it could be demonstrated that there were matters or circumstances which meant the achievement of the modern awards objective did not require the inclusion of the model term for that award.

Draft determinations giving effect to the Full Bench’s provisional view were issued on 25 October 2018. Parties were provided 14 days to comment on the determinations. Submissions were received from the Pharmacy Guild of Australia and the CFMMEU – Maritime Union of Australia Division. These submissions did not oppose the inclusion of the draft determinations in awards relevant to their interests.

The Full Bench confirmed their provisional view from September 2018, stating the clause would come into effect on 1 December 2018. Determinations varying 122 modern awards were issued on 21 November 2018.

Read decision [2018] FWCFB 6863.

Pharmacy Industry Award – Work Value decision

[AM2016/28]

Background

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) applied to vary the Pharmacy Award Industry Award 2010 (the Pharmacy Award) pursuant to s.156(3) of the Fair Work Act, which permits the Commission to vary the minimum wages in an award where the Commission is satisfied that it is justified for work value reasons.

APESMA sought to increase minimum wages in the Pharmacy Award to restore relativity with the C10 classification rate now found in the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award). This claim was based on the Pharmacy Award rates prior to the 3.5% increase post the 2018 Annual Wage Review. In the alternative, the APESMA sought a 25% increase to all wage rates in the award.

As part of their claims APESMA proposed to introduce an ‘Accredited Pharmacist’ classification defined as a ‘pharmacist who is the holder of an Accredited Pharmacist qualification who undertakes professional services requiring pharmacist accreditation or credentialing.’

In support of its claims APESMA contended there has been an increase in pharmacists’ educational, training and registration requirements, indicative of the increase in the skills, knowledge and responsibility required of the profession. With the introduction of new types of work requiring additional skills, knowledge and training, the level of responsibility and accountability for pharmacists had increased. They further claimed that there had been an overall increase in the pharmacists’ workload, pressure and performance since the last consideration of the work value decision issued in 1998 by the Australian Industrial Relations Commission. APESMA submitted that these changes resulted from Federal Government policies, in particular the introduction of the Quality Use of Medicines into the National Medicines Policy.

Outcome

The Full Bench rejected APESMA’s proposal to introduce a new Accredited Pharmacist classification, stating that registered pharmacists at any classification level can become Accredited Pharmacists and increased remuneration should correspond to the pharmacist’s classification rate.

The Full Bench was not satisfied that there has been a fundamental change in the nature of pharmacists’ work since 1998 or in their skills or level of responsibility which would justify the wage increase claimed by APESMA. The Full Bench, however, found that there has been an increase in work value associated with the introduction of Home Medicine Reviews and Residential Medication Management Reviews which justifies the introduction of an allowance to achieve the minimum wages objective in s.284(1). The Full Bench invited further submissions about the form and quantum of this allowance.

The Full Bench was satisfied that there has been some increase in pharmacists’ work value in relation to administering inoculations, provision of emergency contraception, downscaling of medicines and a general increase in their level of responsibility and accountability. Parties were invited to make further submissions as to how these findings should be reflected in increased remuneration.

The Full Bench rejected APESMA’s proposal to restore relativities between pharmacists and the C10 rate in the Manufacturing Award, finding that the relativities have become compressed as a result of flat dollar increases in Safety Net Reviews and Annual Wage Reviews. The Full Bench found that this did not justify an increase in minimum wages in the award as the intended effect of flat dollar increases was to improve the relative position of lower-paid to high-paid award-wage workers. Further, the Full Bench identified that this has occurred across the entire award wages system and therefore, if APESMA’s proposal were adopted, the implications could flow out to every other modern award.

The Full Bench gave further consideration to pharmacists’ relativities with the C10 rate and other rates in the Manufacturing Award. The Full Bench found that APESMA’s proposal demonstrated outcomes inconsistent with the award modernisation and minimum wage objectives and the approach taken in the ACT Child Care Decision to the fixation of award minimum rates (although this decision was made under a different statutory regime).

The Full Bench determined that this matter may constitute a work value consideration relevant to the 4 yearly review of the Pharmacy Award and invited further submissions from interested parties. The Full Bench identified that this aspect may have implications for other awards requiring a referral to the President for procedural consideration pursuant to s.582.

Read decision [2018] FWCFB 7621.

Key court reviews

This section provides summaries of the Full Court of the Federal Court of Australia reviews of Commission decisions.

Australian Mines and Metals Association v Construction Forestry Maritime Mining and Energy Union & another

Matter reviewed: [2018] FWCFB 3710

Federal Court of Australia

Originating Application [QUD500/2018] filed 20 July 2018 seeking relief under s.562 of the Fair Work Act, s.338 of the Fair Work (Registered Organisations) Act 2009 (Cth) and s.23 of the Federal Court of Australia Act 1976 (Cth).

Status

This matter was heard before Chief Justice Allsop and Justices Griffiths and O’Callaghan on 21 November 2018. On 14 December 2018 the Court handed down an order dismissing the appeal.

Read the Full Court of the Federal Court decision [2018] FCAFC 223.

Belan v National Union of Workers & another

Matter reviewed: [2018] FWCFB 94

Federal Court of Australia

Application [NSD173/2018] filed 8 February 2018 seeking relief under s.39B Judiciary Act 1903 (Cth), ss.21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) and ss.562 and 563 of the Fair Work Act.

Status

This matter was listed for a Full Court hearing on 22 August 2018 before Justice Rares, Justice Perry and Justice Charlesworth. On 22 August 2018 the Court ordered that the parties were to prepare written submissions in the matter. The matter was adjourned pending receipt of final submissions. On 21 December 2018, the Court ordered that the application be dismissed.

Read the Full Court of the Federal Court decision [2018] FCAFC 239.

Resources & initiatives

New Approaches video case study published

The New Approaches program is the framework through which the Commission performs its legislated function of promoting cooperative and productive workplace relations and preventing disputes.

New Approaches complements the Commission’s dispute resolution and bargaining functions by providing a formal process to help parties to work together effectively and prevent disputes from occurring.

A new video case study arising from the New Approaches program has now been published on our YouTube channel: Macquarie University and the National Tertiary Education Union.

Macquarie University and the National Tertiary Education Union have adopted interest-based bargaining in negotiating their latest enterprise agreement. This is the first time New Approaches has been adopted in the tertiary education sector.

To find out more about this work, or to view other case studies, please visit the New Approaches page on our website.

Workplace Advice Service

The Commission has launched a Workplace Advice Service (WAS) to provide access to free legal assistance to eligible persons including small business employers seeking employment law advice.

The Commission launched the WAS as free legal advice can improve access to justice, reduce participants’ anxiety and confusion, and avoid unnecessary costs. 

• In Victoria, New South Wales and Western Australia we are partnering with a range of law firms, community legal centres and legal aid commissions to provide assistance.
• In Queensland we are partnering with Legal Aid Queensland to provide vulnerable persons with access to free legal advice.

Other states will be added to the WAS throughout 2019.

The WAS offers free legal advice (approximately one hour) to parties in matters at three key stages:

• Assistance level 1—Pre-lodgment or pre-conciliation advice to provide early assistance in unfair dismissal, general protections and anti-bullying matters.
• Assistance level 2—Advice focusing on unfair dismissal jurisdictional/threshold issues.
• Assistance level 3—Representation in proceedings that may be of public interest.

In addition to the WAS the Commission operates a pilot program with Justice Connect to provide free legal advice to people who are considering or have lodged a general protections application in the ACT and NSW.

Outside Sitting Hours pilot

The Commission’s Outside Sitting Hours pilot was established to trial the viability of offering parties in unfair dismissal matters the opportunity to attend Commission proceedings outside of standard business hours – on either a Thursday night or a Saturday to give effect to the Commission’s aim to provide greater flexibility, improve access and increase efficiency to parties in unfair dismissal matters.

The Pilot has continued following an interim review. It will be reviewed once again as part of the greater Workplace Advice Service program review which has a concentrated focus on the Commission’s access to justice programs.

General update

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth)

On 11 December 2018, the Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Act 2018 (Cth) (the Amending Act) received Royal Assent.

The Amending Act:

• removes the requirement for the Commission to conduct 4 yearly reviews of modern awards, with effect from 1 January 2018, and
• amends s.188 of the Fair Work Act to enable the Commission to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that those errors were not likely to have disadvantaged employees, with effect from 12 December 2018, and
• adds a new section (s.641A) which modifies the application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) to allow a Commission to be established by the Houses of Parliament to investigate and report on alleged misbehaviour or incapacity of an FWC Member, with effect from 12 December 2018, and
• adds a new item (6A) to Schedule 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) with regard to Dealing with a complaint about an FWC Member, also with effect from 12 December 2018.

Go to the Amending Act at the Federal Register of Legislation.

Changes to agreement application forms

Following public consultation, the Commission published a number of amended approved forms:

• F16 – Application for approval of enterprise agreement (other than a greenfields agreement)
• F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement), and
• F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement).

In summary, the amendments seek to:

• address findings of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union in relation to s.188 of the Fair Work Act
• improve questions relating to whether the agreement meets the Better Off Overall Test
• include a question asking whether the person completing the form consents to being contacted for research purposes
• make sure questions about statutory requirements under Fair Work Act reflect the language of the Act, and
• improve consistency across forms.

Go to to the Forms page of our website.

General Manager’s reports tabled

In December three General Manager’s reports were tabled in the House of Representatives. The reports relate to the General Manager’s three yearly reporting requirements under s.653 of the Fair Work Act.

The reports are into:

• developments in making enterprise agreements in Australia under the Fair Work Act: 2015–18
• individual flexibility arrangements under s.653 of the Fair Work Act: 2015–18, and
• the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave: 2015–18.

The reports have been published on our website and can be downloaded from the General Manager’s reports page.

Subscriptions & feedback

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.