Welcome to the Fair Work Commission’s Quarterly practitioner update.
This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.
If you have any feedback about this newsletter, including suggestions for future editions, please contact firstname.lastname@example.org.
The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 April 2020 and 30 June 2020.
Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.
The Workplace Advice Service assists eligible employees and employers by providing free legal advice on the issues of alleged unfair dismissal, bullying and the protection of workplace rights. Due to the impact of COVID-19, the scope of assistance was extended in May to include the new and temporary JobKeeper jurisdiction with a number of our partners volunteering to participate. The advice provided in JobKeeper disputes is available only prior to a Commission hearing by referral from a Commission Member.
Since the beginning of the pandemic in March, the Workplace Advice Service has been able to assist significant numbers of employees and employers. We extend our sincere thanks and appreciation to our partners who have provided ongoing support to the community in this time of need.
If your organisation is interested in partnering with the Commission in the Workplace Advice Service, please email email@example.com to find out more.
The Fair Work Act requires the Commission, constituted by an Expert Panel for annual wage reviews (the Panel), to conduct and complete a review of the national minimum wage (NMW) and modern award minimum wages in each financial year (the Review). The Panel must make a NMW order and may set, vary or revoke modern award minimum wages. The NMW order applies to award/agreement free employees, and modern award minimum wages are the minimum wages contained in modern awards. This year the Review was undertaken during a global pandemic. The outbreak of the coronavirus, COVID-19, and the measures put in place to contain the spread of the virus have led to significant shifts in the way work and society is conducted, with substantial economic consequences.
Variations were made to the Review timetable to allow parties to provide submissions regarding the impacts of the pandemic as they unfolded, and to comment on the most recent available data. The Panel received submissions from the Australian Government, several state governments, bodies that represent the interests of employees and employers, other entities and individuals. The Australian Government urged the Panel to take a cautious approach in light of the continuously emerging and wide-ranging potential impacts of the COVID-19 pandemic and to prioritise keeping Australians in jobs and maintaining the viability of businesses.
Justice Ross; Vice President Catanzariti; Deputy President Asbury; Commissioner Hampton, Mr Ferguson and Ms Labine-Romain (the Panel Majority), observed that the COVID-19 pandemic ‘casts a large shadow over the current economic environment’. While predominantly a public health issue, federal and state government-imposed restrictions to contain the spread of the virus have had a profound economic impact. The social and economic consequences of these measures have been unprecedented and have led to business closures and job losses. All but ‘essential workers’ were forced to stop work or modify their work arrangements.
The Panel considered the current economic situation. Gross domestic product (GDP) growth is lower and GDP is expected to fall significantly over 2019-20 before a forecasted strong rebound. The unemployment rate is higher, and headline inflation increased significantly, particularly due to effects from the drought and bushfires, as well as COVID-19. The Panel Majority noted that underlying inflation also increased. Wages growth has declined slightly. The Australian economy is going through a significant downturn and is almost certain to enter a technical recession. The impact of the COVID-19 pandemic has been felt across the economy, but the extent of its impact has not been consistent across all sectors of the economy. ACCI, Ai Group and other employer organisations submitted that there should be no increase.
The Panel Majority observed that the various economic considerations were not the only matters the Panel is required to take into account. Other matters include the ‘relative living standards and the needs of the low paid’. The Panel Majority considered that a decision to grant no increase in this Review would mean that the living standards of low-paid award-reliant employees would fall, and that the requirement to take into account relative living standards and the needs of the low paid supports an increase. The Panel Majority also observed that gender pay equity favoured an increase in minimum wages.
The Panel Majority decided that it was appropriate to increase the NMW and to adjust modern award minimum wages. The Panel Majority awarded an increase of 1.75%. The NMW will be $753.80 per week or $19.84 per hour, the hourly rate has been calculated by dividing the weekly rate by 38, on the basis of the 38-hour week for a full-time employee. This constitutes an increase of $13.00 per week to the weekly rate or 35 cents per hour to the hourly rate. The proposed NMW and the relevant statutory considerations led the Panel Majority to also increase modern award minimum wages by 1.75%.
The Panel Majority was not satisfied that there were ‘exceptional circumstances’ to justify the adjustments set by a NMW order taking effect on a day later than 1 July 2020. The NMW order will come into operation on 1 July 2020.
Regarding the date of operation of the determinations varying modern award minimum wages, the Panel Majority decided to determine different operative dates for different groups of modern awards. The operative dates are as follows:
The modern awards in Group 1 cover industries and sectors less affected by the pandemic and, in addition, includes modern awards applying to frontline health care and social assistance workers, teachers and childcare workers and employees engaged in other essential services. The modern awards in Group 2 cover industry sectors adversely impacted by the pandemic, but not to the same extent as the sectors covered by the Group 3 awards. The modern awards in Group 3 cover the industry sectors which have been most adversely affected by the pandemic, that is:
The Panel Majority was satisfied that there were exceptional circumstances justifying the variation determinations in respect of these awards coming into operation on 1 February 2021.
The opinion of Professor Wooden was that given the current economic circumstances, the requirement to provide an adequate safety net of fair minimum wages should lead the Commission to prioritize growth in jobs and hours over a wage increase. For this reason, he recommended that award minimum wage rates remain unchanged.
Draft variation determinations giving effect to the Panel Majority decision were published on 19 June 2020. Interested parties were required to submit any corrections of amendments by no later than 5pm on Thursday, 25 June 2020.
The Fair Work Commission has registered the Fair Work Commission (Miscellaneous Measures) Rules 2020 (Rules Amendment).
The Rules Amendment amends the Fair Work Commission Rules 2013 (Rules) with effect from 1 May 2020.
The changes alter:
A copy of the Rules Amendment and the Explanatory Statement to the Rules Amendment are available on the Federal Register of Legislation website. A compilation of the amended Rules will be available there shortly.
Updated forms incorporating the amendments have been published on the Forms page of our website.
The Ai Group made an application to vary the Fast Food Industry Award 2010 (MA000003) (the Fast Food Award). Ai Group, the Shop, Distributive and Allied Employees’ Association (the SDA) and the Australian Council of Trade Unions (the ACTU) had been in discussions directed at reaching a consent position on changes to the Fast Food Award to mitigate the impact of COVID-19 on employees and employers covered by the award.
The application sought to insert a new Schedule, Schedule H—Award flexibility during the COVID-19 Pandemic into the Fast Food Award. The new Schedule H is expressed to operate for a period of three months. The three key components of the proposed Schedule were:
The proposed Schedule only applies to an employer and their employees where they do not qualify for the JobKeeper scheme.
The Commission may make a determination varying a modern award if satisfied that the determination is necessary to achieve the modern awards objective to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’.
The Full Bench held the provisional view that the variation of the Fast Food Award as proposed was necessary to achieve the modern awards objective and invited submissions from interested parties.
The application was opposed by the Retail and Fast Food Workers Union (RAFFWU) and as a result the matter was the subject of a hearing. At the end of the hearing the Full Bench indicated that on the material before it at that time it was not persuaded to grant a variation sought by Ai Group. The Full Bench also said it was prepared to provide Ai Group the opportunity to file evidentiary material directed at two matters:
Further submissions were received from interested parties. Award reliant Fast Food employees are ‘low paid’ within the meaning of s.134(1)(a) of the Fair Work Act. The Full Bench accepted that the proposed variation may result in low paid employees receiving less pay than they would for the same hours under the current terms of the award. The Full Bench also accepted that a reduction in pay will mean that they are less able to meet their needs, however the retention of as many employees as possible in employment, albeit receiving less pay for the hours they work than they would under the current terms of the award, was also an important consideration. The Full Bench held that it was also important to note that the flexibilities in the proposed variation were subject to a number of safeguards.
The Full Bench was satisfied that the variation proposed was necessary to achieve the modern awards objective. The Fast Food Award was varied. The determination came into operation on 19 May 2020.
This application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (MA000100) (the SCHADS Award) was jointly filed by the Australian Services Union (the ASU), the Health Services Union (the HSU), the United Workers Union (the UWU) and National Disability Services (NDS) (collectively, the Applicants). The Applicants have been in discussions directed at reaching a consent position on changes to the SCHADS Award to mitigate the impact of COVID-19 on employees and employers covered by the SCHADS Award. The consent of NDS is conditional upon funding support.
The application seeks to insert a new clause, X.3 COVID-19 Care Allowance, into Schedule X of the SCHADS Award. The application seeks to introduce an hourly allowance of 0.5% percent of the Standard Rate for instances where an employer requires an employee to work with a client who:
The proposed new allowance will operate until 28 September 2020. The current ‘Standard Rate’ is $988.80 per week. The allowance in proposed clause X.3 is an hourly allowance of 0.5% of the standard rate which equates to an amount of $4.94 per hour. The Applicants contended that the value of the allowance ‘has been set to compensate for both the additional responsibilities and the additional disability associated with working with clients who have or might have contracted COVID-19’.
The Full Bench posed a number of questions and expressed some provisional views, including the view that the payment of additional compensation in the form of an allowance would assist the low paid workers in this sector to better meet their need. The Full Bench invited parties to make further submissions.
Application filed by the Victorian Automobile Chamber of Commerce (VACC), the Motor Trade Association of South Australia Inc, the Motor Traders Association of New South Wales, the Motor Trades Association of Queensland Industrial Organisation of Employers and Ai Group to vary the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (MA000089) (the Vehicle Award). The application was supported by ACCI, the Australian Automotive Dealer Association and the Motor Trade Association of Western Australia and was also consented to by the Australian Manufacturing Workers Union, the Shop Distributive and Allied Employees Association and the ACTU
The application was said to be necessary to mitigate the impact COVID-19 is having on employees and employers covered by the Vehicle Award and seeks to insert a new Schedule, Schedule J, into the Vehicle Award. The proposed Schedule J:
The provisions of Schedule J are ‘aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic and not to set any precedent in relation to award entitlements after its expiry date’. The proposed schedule had a limited period of operation, until 30 June 2020. It was also proposed that Schedule J will only operate with respect to those employees who were not participating in the new JobKeeper wage subsidy scheme.
The Full Bench accepted that the proposed variation may result in low paid employees working less hours and consequently receiving less pay. The Full Bench held that employers and employees face an invidious choice and the retention of as many employees as possible in employment, albeit on reduced hours, is plainly a priority.
The Full Bench was satisfied that the proposed variation was necessary to achieve the modern awards objective and made the variation determination sought. The determination came into operation on 11 May 2020.
The Full Bench noted that the Vehicle Repair, Services and Retail Award 2020 (the 2020 Award) came into effect on Friday 29 May 2020, and that the 2020 Award would be amended to include the new Schedule J.
On 27 July 2020, the Health Sector Awards Full Bench issued a decision granting an entitlement to paid pandemic leave for employees working in the aged care industry who are covered by the following awards:
The paid leave entitlement is for workers who are required by their employer or a government medical authority or on the advice of a medical practitioner to self-isolate because they display COVID-19 symptoms or have come into contact with a person suspected of having contracted COVID-19. The leave entitlement is limited to up to 2 weeks’ paid leave on each occasion of self-isolation.
The variations take effect from Wednesday, 29 July 2020 and will operate for an initial period of 3 months (until 29 October 2020).
The Full Bench said that this decision does not conclude the proceedings and noted that the paid pandemic leave entitlement awarded in the current urgent circumstances may require adjustment, in light of continuing developments. They also noted that it is possible that future events may require the consideration of the extension of the entitlement to other awards.
On 8 April 2020 a Full Bench issued a Decision on its own initiative varying 99 modern awards to insert a new schedule: Schedule X – Additional measures during the COVID-19 pandemic. Schedule X provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay. Schedule X was to operate until 30 June 2020. In a Statement issued on 23 June 2020 the Full Bench indicated that the Commission did not propose to vary Schedule X to extend its operation past 30 June 2020 on its own motion, parties wishing to extend the operation of the schedule were invited to make an application. A number of applications were filed to extend the operation of Schedule X in respect of 64 awards. The Full Bench determined that the operative date of Schedule X in each of these awards would be extended to 30 September 2020.
Restaurant and Catering Industrial applied to replace Schedule I – Award flexibility during the COVID-19 Pandemic, in the Restaurant Industry Award 2020. The modified Schedule I maintains some of the flexibilities available under the existing schedule and includes greater protections for employees. The Full Bench was satisfied that the proposed variation was necessary to achieve the modern awards objective. The Full Bench made the variation determination sought. The determination came into operation on 1 July 2020 and will operate until 27 September 2020.
The Australian Hotels Association applied to replace Schedule J – Award flexibility during the COVID-19 Pandemic, into the Hospitality Industry (General) Award 2010. The modified Schedule J maintains some of the flexibilities available under the existing schedule and includes greater protections for employees. The Full Bench was satisfied that the proposed variation was necessary to achieve the modern awards objective. The Full Bench made the variation determination sought. The determination came into operation on 1 July 2020 and will operate until 27 September 2020.
Schedule J – Award flexibility during the COVID-19 Pandemic was inserted into the Vehicle Repair, Services and Retail Award 2020. Schedule J has since been renumbered and is now Schedule I. The Victorian Automobile Chamber of Commerce, the Motor Trade Association of South Australia Incorporated, the Motor Traders Association of New South Wales and the Motor Trades Association of Queensland Industrial Organisation of Employers applied to extend the operation of some of the clauses contained in Schedule I for a limited period, until 31 July 2020. The Full Bench was satisfied that the proposed variation was necessary to achieve the modern awards objective. The Full Bench made the variation determination sought. The determination came into operation on 1 July 2020 and will operate until 31 July 2020.
Joint application filed by the Australian Industry Group and the Australian Chamber of Commerce and Industry to vary Schedule I – Award flexibility during the COVID-19 pandemic, in the Clerks – Private Sector Award 2020. The variation to Schedule I restricts the flexibilities available and expands the range of safeguards. The Full Bench was satisfied that the proposed variation was necessary to achieve the modern awards objective. The Full Bench made the variation determination sought. The determination came into operation on 1 July 2020 and will operate until 30 September 2020.
This matter relates to an alleged dispute under the Auscript Australasia Enterprise Agreement 2010 filed in respect of clause 3.6-Shared Responsibilities. The Australian Municipal, Administrative, Clerical and Services Union (the ASU) alleged Auscript failed to consult in respect to employee redundancies and probable closure of sites.
Auscript had previously downsized its Sydney office and closed offices in Hobart and Adelaide in early 2020. Prima facie, it appeared that Auscript had failed to comply with the consultation obligations prior to these closures and its decision in making 25 employees redundant. The ASU and Auscript agreed to develop a joint Consultation and Communication Protocol (the Protocol) to avoid further potential failure in Auscript complying with their obligations.
Auscript determined to make further redundancies in direct response to the impact of COVID-19 on their business.
The Commission was satisfied that jurisdiction exists to arbitrate the matter. The Commission considered Consultation Clause in Modern Awards and found that Auscript had an obligation to comply with the consultation clause in the Agreement but failed to do so. The Commission was not satisfied that Auscript genuinely considered options other than redundancy and described Auscript’s actions as mere formality. Additional announcements by the Federal Government to assist employers and employees, while noted by Auscript, were rejected. The verbal assurances to the ASU and Commission concerning compliance with obligations and agreed actions were subsequently ignored.
The Commission found that the process adopted in implementing decision to close the Melbourne office, and to also make many employees redundant in the face of assurances, was evidence of Auscript’s failure to comply with their legal obligation and engage in genuine consultation. The Commission acknowledged that the future of Auscript is unviable however an obligation remains to treat staff with dignity in this time of crisis. The Commission determined that Auscript did not consult its employees or the ASU as required by its Agreement.
In this application for an unfair dismissal remedy the applicant was employed as the coordinator of student exchange tours between Australia and Japan. The applicant was notified on 13 February 2020 that her position had become redundant, due to downturn in business as a result of COVID-19. The applicant submitted that at the time of her dismissal her role was expected to continue when business resumed. The respondent anticipated that there would be further impact on the business as a result of COVID-19.
The Commission considered that there was no requirement for the respondent to wait until a possible financial crisis manifested before taking action to protect its business interests. The Commission found that changes in operational requirements meant that the applicant’s job was no longer required to be performed by anyone. The Commission found that the dismissal was a genuine redundancy and as a result the dismissal was not unfair.
This application was made by Print Logistics (Aust) P/L to vary the redundancy pay otherwise due to one of its former employees, Ms Karwa. The application was made on the basis that Print Logistics did not have the financial capacity to make the redundancy payment in full because of the impact of the COVID-19 pandemic. Print Logistics sought to have the payment reduced, originally from eight weeks to four weeks, however they requested a further reduction of 80% of the total amount of redundancy following the Mention Hearing on 17 April 2020. The amended request represented a reduction of $5,593.60 to $1,398.40. It was not disputed that the former employee was entitled to a redundancy payment of eight weeks pay totalling $6,992.00. The former employee opposed the application and claimed Print Logistics was able to pay the eight weeks’ redundancy payment and should do so.
The Commission was satisfied that the former employee had worked for Print Logistics for a period of at least four years but less than five years and was therefore entitled to a redundancy payment of eight weeks. The Commission considered Company P regarding capacity to pay. The Commission was satisfied that the financial position of Print Logistics had declined rapidly as a result of the significant impact of COVID-19 and the associated lockdown and deterioration in economic activity. However, the Commission was not satisfied that Print Logistics could not pay the amount. It was not sufficient to demonstrate that it was merely beneficial to Print Logistics to reduce the amount. The materials filed indicated Print Logistics had sufficient cash to pay the full amount of redundancy.
The Commission noted that the former employee was not a highly paid worker, making $874.00 per week, and that this was a relevant consideration and weighed against any decision to reduce the amount. The Commission found there was no basis for the exercise of discretion to reduce the redundancy entitlements. The Commission was not persuaded that Print Logistics could not pay the full amount to which the former employee was entitled. The application was dismissed.
This matter deals with an application to deal with a dispute involving stand down. The respondent conducts a tourism-centric operation, and as a result of government regulations to combat the spread of the COVID-19 virus the respondent is no longer able to conduct its business. The applicant is employed as a Marine Superintendent within the Marine Division of the respondent’s business, and on 26 March 2020 was notified that he had been stood down. A Marine Superintendent performs a variety of roles, but primarily is responsible for the overall performance of the of the Marine Division. The duties include vessel maintenance, crewing and compliance to company and legislative requirements pertinent to the operation of the vessels.
The Commission considered whether there was any useful work for the applicant to perform. The Commission also considered whether a genuine stoppage of work occurs when an employer’s business is not trading, but there still exists some limited functions that can be performed. A mere reduction in available work can not constitute a stoppage. The Commission found that there was a genuine stoppage of work, owing to the inability of the respondent to engage in its primary function. The Commission also found no intervening cause between the government restrictions on travel and the decision to stand down the applicant.
The Commission considered AMWU v McCain and Re Carpenters. The respondent had stood down 107 employees equalling 50% of its workforce. The respondent submitted that due to the ships no longer being operational, the technical team retained within the Marine Department were sufficient to support the caretaker requirements of the business. The applicant contended that there was work which could be done, work that he could do, and some of which he has traditionally done. The Commission held that due to the pandemic the respondent was not trading and therefore the amount of work which exists was limited. It was not persuaded that there was sufficient useful work for the applicant to perform. The Commission found that the applicant was not capable of useful employment and dismissed the application.
Temporary JobKeeper provisions have been added to the Fair Work Act. An employer who is entitled to receive JobKeeper payments for an eligible employee can temporarily change some of the employee’s job conditions to help them deal with the economic impact of COVID-19 by:
The JobKeeper changes to the Fair Work Act started on 9 April 2020 and end on 28 September 2020.
Some working conditions can be changed by the employer without the employee’s agreement. By giving a JobKeeper direction, an employer can:
The JobKeeper direction can’t be unreasonable and it must be in writing.
An eligible employee that has been given a JobKeeper enabling stand down can also request to engage in secondary employment or training.
Some changes to an employee’s working conditions can only be by agreement between an employer and an employee. JobKeeper agreements can include:
An employee must consider the request and cannot unreasonably refuse it.
The Commission has published a new JobKeeper disputes benchbook.
On 9 April 2020, the Fair Work Act was temporarily amended to introduce a new Part 6-4C to help with the implementation of the JobKeeper payment scheme. Under the new Part 6-4C, the Commission has a role in helping parties resolve some disputes relating to the JobKeeper payment scheme.
The benchbook has been prepared by staff of the Commission to provide information about the Commission’s role in dealing with JobKeeper disputes.
The Commission recognises that dealing with disputes quickly can help minimise disruptions at workplaces and help parties to move on sooner. The Commission also recognises that it is important to prioritise JobKeeper disputes given that the JobKeeper jurisdiction will end on 28 September 2020.
Deputy President Gostencnik was appointed the National Practice Leader for JobKeeper dispute applications.
Within hours of the JobKeeper provisions being introduced, the Commission:
A JobKeeper Case Management Team was also established provide administrative support to the National Practice Leader by ensuring that JobKeeper dispute applications are processed quickly, between the hours of 8am to 8pm AEST on weekdays, and 9am to 5pm AEST on weekends and public holidays.
In a statement of 8 May 2020 (PDF) Justice Ross announced timeliness benchmarks for JobKeeper disputes. A key timeliness benchmark for JobKeeper dispute applications is that 90% of cases should be finalised within 4 days, and 100% within 14 days. The statement also includes other statistics about JobKeeper dispute applications lodged.
Since the benchmarks were announced, Commission Members and staff have prioritised JobKeeper dispute applications and dealt with JobKeeper disputes in an expedited way.
The Commission has the power to deal with disputes about the JobKeeper provisions of the Fair Work Act.
The Commission can deal with a JobKeeper dispute by:
If a JobKeeper dispute appears to be within the Commission’s jurisdiction, the application will be allocated to a Member of the Commission, generally for a conference.
This application to deal with a dispute in relation to JobKeeper concerned what the applicant considered to be an incorrect application of the JobKeeper payment rules, and how they applied to monthly paid but stood down employees. The respondent in this matter, Qantas Airways Limited (Qantas), opposed the application and raised jurisdictional issues. An attempt by the Commission to resolve the matter in conference was unsuccessful. Qantas sought a determination of the jurisdictional issues before further conciliation or a hearing on the merits.
The applicant is employed as a Planning and Engagement Manager and paid on a monthly pay cycle. The applicant is an eligible employee for JobKeeper. Due to the impact of COVID-19 on its business, in March 2020 Qantas stood down thousands of employees, including the applicant, who worked until 6 April 2020. On 15 April 2020 Qantas made two payments to the applicant:
The applicant believes that the JobKeeper ‘top up’ paid to him by Qantas on 15 April 2020 should have been in the sum of $1,500 (gross) being an amount payable for the second JobKeeper fortnight for the month of April 2020. The applicant further submitted that he had been underpaid $852.30. The applicant believed that Qantas incorrectly applied the JobKeeper legislation and payment rules. He believed that because he is paid monthly he is disadvantaged compared to those Qantas employees who are paid fortnightly, and who he says received the full $1,500 for the second payment fortnight in April 2020.
Qantas contended it had correctly applied the JobKeeper legislation and payment rules. Qantas claimed that the rules, as administered by the Australian Tax Office, require and permit an employer to apply payments to monthly paid employees across two fortnights, and to apply wages earned (if any) across those fortnights in a reasonable manner. Qantas said that the applicant received $3,000 (gross) in total across the two fortnights in April 2020, including payment for work done plus a JobKeeper top up to this amount.
Qantas submitted three grounds on which it believed the Commission did not have jurisdiction to deal with or determine the dispute, being:
At first instance the Commission found the dispute was a dispute about the operation of Part 6-4C and thereby within the Commission’s jurisdiction. It did not accept the proposition that dealing with the dispute as notified by the applicant, and as properly characterised (being a dispute about the wage condition and the minimum payment obligation under Part 6-4C), required the Commission to exercise judicial power. The Commission held that its JobKeeper benchbook correctly identified that the Commission ‘cannot generally assist with claims for underpayment of wages and entitlements, including payments under the JobKeeper scheme’. The Commission noted that this is simply a statement of the legal position that underpayment claims are not within the Commission’s jurisdiction. The JobKeeper benchbook is a guide and its language does not substitute for the law. The Commission rejected the respondent’s jurisdictional challenges. The Commission determined that it had jurisdiction to deal with the dispute as notified and listed the matter for conciliation.
Qantas sought permission to appeal the Commission’s decision at first instance and argued three errors. Qantas claimed that the Commission erred in its characterisation of the subject matter of the dispute; that the Commission did not assess the nature of the power it would exercise were it to arbitrate the dispute; and that in so doing the Commission had denied Qantas procedural fairness.
The Full Bench refused permission to appeal for five reasons. Firstly, the Full Bench found that in the decision under appeal the Commission need only have satisfied itself that the application concerned a dispute about the operation of Part 6-4C; the Commission found that it did, and Qantas did not challenge this finding. Qantas’ objection at first instance was an application for the summary termination of proceedings. The Full Bench found Qantas had not demonstrated at first instance or in its appeal submissions that the application should be summarily terminated as under the relevant criteria set out in Bibawi. The Full Bench found that while the Commission cannot determine whether Qantas complied with s.789GA or s.789GDA in relation to its payments to the respondent by arbitration, the Commission may still exercise its arbitral power under s.789GV(4) to deal with the dispute in another way.
Secondly, the Full Bench found that whilst the Commission is prohibited from the exercise of judicial power, there was no basis to conclude that in arbitrating the dispute the Commission need exercise such power. Thirdly, the Full Bench found Qantas’ characterisation of the dispute somewhat artificial, in that the employee’s application was not a formal pleading but seemed to seek the opinion of the Commission as to certain aspects of Part 6-4C of the Fair Work Act. Fourthly, as the Commission had not yet made any order in the proceedings adverse to Qantas in its position in the dispute, there was no lack of procedural fairness. And fifthly, the appeal concerned an interlocutory decision. The Full Bench held there were strong policy reasons against granting permission to appeal against an interlocutory decision, including that it is crucial disputes arising under Part 6-4C of the Fair Work Act are dealt with by the Commission in an expeditious and efficient manner. For these reasons the Full Bench was not satisfied that granting permission would be in the public interest. Permission to appeal was refused.
The application was returned to the Commission for hearing. The applicant requested the Commission express an opinion on whether the Fair Work Act and JobKeeper Payment Rules were applied correctly. Qantas submitted that it correctly applied the wage condition and minimum payment guarantee in s.789GD and s.789GDA of the Fair Work Act and rule 10 of the JobKeeper Payment Rules. Qantas further submitted that there was no unfairness between monthly and fortnightly paid employees.
The Commission considered that the wage condition in s.789GD provides that the employer must ensure that the wage condition has been satisfied in respect of the employee by end of the fortnight. The Commission did not consider that it was reasonable for Qantas to have used a calculation method that resulted in the applicant being paid a combined total of $3,000.00 during JobKeeper fortnights 1 and 2, where the respondent had secured that amount from the Commonwealth as well as the value of applicant’s labour for those working days in fortnight 1 before he was stood down.
The Commission was of the opinion that the payments made by Qantas were not allocated to JobKeeper fortnight 1 and JobKeeper fortnight 2 in a reasonable manner, and thereby Qantas did not meet the wage condition in s.789GD. The Commission recommended that Qantas reverse its decision to allocate monies earned by the applicant in JobKeeper fortnight 1 to JobKeeper fortnight 2. The Commission also recommended that in future Qantas assesses whether it accrued a benefit from the provision of labour that gave rise to earnings in particular JobKeeper fortnight. The Commission ordered that the applicant and Qantas confer in light of its opinion and recommendations, with a view to resolving the dispute. The Commission made no determination as to whether Qantas complied with s.789GD or s.789GDA of the Fair Work Act, or rule 10(3) of the JobKeeper Payment Rules.
This application to deal with a dispute in relation to JobKeeper considered whether any JobKeeper enabling direction was provided to an employee. The applicant has worked for the respondent Village Roadshow Theme Parks (VRTP) for 22 years. She is currently employed in the Staff Services Department and works 30 hours per fortnight part-time. The applicant is an employee eligible for JobKeeper.
Due to the impact of COVID-19 on its business VRTP stood down a large number of its employees. The applicant was stood down on 23 March 2020. The applicant was issued a JobKeeper enabling direction from VRTP to not attend work. On 29 April 2020, VRTP subsequently issued a letter to the applicant requesting that she take annual leave during the JobKeeper period. VRTP asked the applicant to take one day of annual leave each week until either 27 September 2020, when the coronavirus provisions cease to take effect, or the time when her leave balance was reduced to four days (whichever happened first).
The applicant did not agree with VRTP’s request to reduce her annual leave and considered that she was not being unreasonable in her refusal to agree to the request. The applicant submitted that VRTP’s request impacted long-serving employees with large leave balances more than others. She further submitted that it would be fairer if all employees were required to take the same amount of annual leave, so as not to disadvantage employees with larger leave accruals like herself. The applicant submitted that the JobKeeper legislation should only be available to smaller employers, and not large employers like VRTP. The applicant sent VRTP an ‘annual leave justification’ in relation to her refusal to reduce annual leave as requested. VRTP’s annual leave policy provides all leave must be approved before it is guaranteed. VRTP wrote to the applicant on 1 May 2020 in response to her ‘annual leave justification’ and stated its view that her refusal to take annual leave was unreasonable.
The Commission held that the dispute was a dispute about the operation of Part 6-4C and within the Commission’s jurisdiction. The Commission found that the dispute was not in relation to a JobKeeper enabling direction, but was a dispute about the request made by VRTP that the applicant take annual leave at the rate of one day per week (given her part-time hours of work) without reducing her minimum annual leave balance below four days.
The Commission did not accept the applicant’s submission that VRTP’s annual leave request was unreasonable, or that the JobKeeper legislation should only be available to smaller employers. The Commission found that the applicant’s refusal of VRTP’s request to take annual leave was unreasonable. The Commission issued an order pursuant to s.789GV(4)(d) of the Fair Work Act that the applicant not continue to refuse the request made by VRTP. The order to take effect from 13 May 2020 and end at 11:59:59pm on 27 September 2020.
At first instance in this matter the Commission found a JobKeeper enabling stand down direction issued by Prosegur pursuant to s.789GDC(1) of the Fair Work Act was not unreasonable. The TWU lodged an appeal against the decision, contending that the decision was in error due to the misconstruction of s.789GK concerning reasonableness, and also involved an error of fact. The TWU submitted that the Commission had:
The Full Bench found the Commission had proceeded upon an incorrect construction of the meaning of expression ‘unreasonable in all of the circumstances’. At first instance the Commission used an interpretation of unreasonableness in his review of the JobKeeper enabling direction that resembled a standard of legal unreasonableness or irrationality used in the context of judicial review of administrative action, and excluded notions of unfairness and inequity between employer and employee. The Full Bench considered this approach was in error when regard was had to the statutory context of s.789GK, including the object of Part 6-4C of the Fair Work Act which refers to balancing employer and employee interests, and the purpose of s.789GK to direct attention to the interests of the employee in the context of an employer’s extraordinary power to make JobKeeper enabling directions.
The Full Bench also found that the Commission did not direct himself to the substance of the direction itself but assessed reasonableness by reference to the hours of work schedule. The Full Bench found that this was erroneous because the hours of work schedule was concerned with a period before the direction was issued and was not illustrative of the effect of the direction.
The Full Bench granted permission to appeal and upheld the appeal. The first instance decision was quashed. The parties were directed to confer as a matter of urgency, having regard to the propositions made in the decision. Should the dispute not be resolved it will be re-determined by arbitration by the Full Bench.
The parties in this application for unfair dismissal were de-identified by the Commission. The applicant worked as a part-time laboratory assistant at a Melbourne private school. She was dismissed for misconduct for a number of grounds including her failure to disclose relevant previous employment disciplinary and medical history; that she was not competently performing the duties of her role; and her misconduct associated with the events on and after an incident on 9 May 2019 where she attempted to ‘remove school property without permission’.
The Commission was satisfied that the respondent had a valid reason for the applicant’s dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The Commission took into consideration the applicant’s mental illness however formal evidence before the Commission was scant. The available evidence said the applicant was suffering from ‘depression and anxiety’; that those matters affected her attention/concentration, her memory (short and/or long term) and her judgement (ability to make decisions); and that those matters combined manifested themselves with ‘lowered mood, increased distress’.
The Commission held that all but the matter of depression was likely constantly conspicuous to all concerned at The School and was most definitely evident to the Commission throughout the pre-hearing and hearing phases of dealing with her application. The Commission noted that people afflicted with mental illness deserve reasonable accommodations to be made by their employer for them to deal with the consequences of the illness. However, what is required is no more than would be required of the employer of someone suffering from any number of other illnesses, what is not required for anyone is for a wall to be built around the employee so that employing them means doing things their way and not otherwise. The Commission noted that the applicant’s mental illness and conduct affected not only herself but those around her. The Commission was satisfied that there was a valid reason for dismissal, and that the dismissal was not unfair. The application was dismissed.
At first instance in this unfair dismissal matter the Commission found that the appellant was not an employee but was ‘acting as an agent’ of Portier Pacific Pty Ltd and Uber Australia Pty Ltd, and therefore was not a person protected from unfair dismissal.
The Full Bench majority found ‘the question for whom did Ms Gupta perform delivery work, and by whom was she paid for it, must be answered by reference to the substantive rights and obligations under the Service Agreement, the Guidelines, the Restaurants Agreement and the commercial or working reality of the overall arrangement by which Ms Gupta delivered restaurant meals to customers’. The Full Bench majority found that Portier Pacific engaged the appellant to perform delivery services for it, and paid her for them, as part of a business by which it delivered restaurant meals to the general public. The Full Bench majority held this meant that the minimum reciprocal obligations of work and payment existed.
It was then necessary to determine whether the appellant performed her delivery work as an employee or independent contractor. The Full Bench majority considered French Accent and found the role of the respondent was analogous to any normal labour hire scenario. The Full Bench majority found that the appellant’s relationship with the respondent did not have many of the ‘usual and essential hallmarks’ of an employment relationship. The Full Bench majority found that the appellant did work for, but was not employee of, the respondent. Permission to appeal was granted and the appeal was dismissed.
The Full Bench minority agreed that permission to appeal should be granted and the appeal should be dismissed, however held a different view about the nature of the relationship between the appellant and Portier Pacific. The Full Bench minority found that the appellant did not work for Portier Pacific and was ‘simply working for herself’.
In this application for unfair dismissal remedy the applicant was employed as General Manager/Marketing Manager by the respondent, who is the applicant’s mother. The respondent is a small business and contended that the dismissal of the applicant was a genuine redundancy and as a result the application should be dismissed.
The respondent gave evidence that following the applicant’s extended time away in 2018/2019 she was able to consider the structure of the business and re-assigned the applicant’s work functions to other employees and contractors. The respondent submitted that the reason for making the applicant redundant was changed operational requirements.
The Commission was not convinced that changed operational requirements motivated the redundancy of the applicant, but rather the respondent did not want her daughter to return to the workplace given the breakdown in both personal and working relationship. The Commission considered Ulan Coal Mines, Kekeris and Nettlefold. The Commission was not satisfied on the evidence that the dismissal was a genuine redundancy, finding the mother-daughter relationship had clearly infected the employer-employee relationship.
The Commission found the respondent’s evidence was based on emotional responses to her personal relationship with her daughter, as opposed to an objective view of the circumstances by which the employment relationship had come to an end. Likewise, the applicant in her evidence recognised the almost toxic relationship with her mother and conceded they could not work together.
The Commission dismissed the respondent’s jurisdictional objection of genuine redundancy. The applicant in this case was not summarily dismissed so therefore the summary dismissal provisions of the Small Business Fair Dismissal Code did not apply. Further, there was no evidence of breach of health and safety and the reason for dismissal was not the capacity or conduct of the applicant. The Commission was satisfied the breakdown in the personal relationship between the applicant and the respondent was a major contributing factor to the reason for dismissal. The Commission held that it was evident that clear boundaries as to work and the succession of the business within the family did not exist. The Commission considered Byrne and was satisfied that the dismissal was harsh in that it was punitive and unreasonable.
The Commission determined that in this case reinstatement was not appropriate. After considering further evidence and submissions in relation to compensation the Commission ordered compensation in the amount of $1,635.29 plus statutory superannuation paid into the applicant’s superannuation account in lieu of reinstatement.
The applicant in this application for unfair dismissal remedy was a long serving radiator repairer at small family owned business in a regional location. The applicant was dismissed in July 2019 for serious misconduct including conducting a business in direct opposition to the respondent. The employment separation certificate cited breaches of Company policies and procedures, and disrespectful behaviour towards the employer. The applicant was dismissed with five weeks’ pay in lieu of notice.
The respondent submitted that the applicant’s dismissal was based on its belief the applicant was guilty of serious misconduct and other matters, including performing work on vehicles down the side of the building where work was not permitted. Viewed in this way the respondent submitted that the applicant’s dismissal fell under the summary dismissal limb of the Small Business Fair Dismissal Code (the Code).
The Commission was satisfied that the respondent had a reasonable belief that the applicant had engaged in conduct which warranted summary dismissal, particularly as a result of CCTV footage which was first viewed after the dismissal had occurred. Accordingly, the Commission found that the Code had been complied with. The Commission was satisfied that the applicant had been dismissed, and the dismissal was not a case of genuine redundancy. As the applicant was not ‘a person protected from unfair dismissal’ he therefore could not have been unfairly dismissed. The Commission had no jurisdiction to determine the merits of the application. The application for unfair dismissal remedy was dismissed.
This matter relates to an application by the employer from an unfair dismissal case seeking costs. At first instance the employee’s unfair dismissal application was dismissed by the Commission [ FWC 8552]. The Commission concluded that there were valid reasons for the employee’s dismissal based on serious breaches of duty and in particular the employee’s alteration of a tenderer’s quote, failure to disclose conflicts and potential conflicts of interest and his conduct in providing copies of competitor quotes or details of prices quoted by competitors to his preferred suppliers.
The Commission noted that the dismissed employee was denied, in part, procedural fairness. The misconduct which triggered the employer’s decision to dismiss was not put to the employee for response. In this sense the dismissal was pre-meditated as the decision to dismiss had been made before meeting with the employee. Ultimately the Commission did not conclude that the procedural failings by the employer were of such a fundamental nature so as to render the dismissal harsh, unjust or unreasonable having regard to the serious misconduct and performance failures.
The employer sought orders under s.611(2) of the Fair Work Act against the former employee and under s.401(1A) against Unfair Dismissals Australia, the applicant’s paid agent.
The Commission found that the application by the dismissed employee was not made without reasonable cause or without reasonable prospect of success. The Commission made no costs order against the dismissed employee.
However, the Commission found that the paid agent had engaged in unreasonable conduct. Whilst the unreasonable conduct was not a product of bad faith it was reckless. The Commission found that the unreasonable conduct arose from an organisational failure, not just an advocate’s inexperience or misjudgement. This was highly prejudicial to the efficiency of proceedings and the employer’s right to procedural fairness. The Commission held that orders against representatives should be made only where there is a clear case, and that the discretion should be exercised with care. The employer’s application for costs granted in part against the dismissed employee’s paid agent. The Commission ordered costs to be payable on indemnity basis, with the parties directed to confer on the quantum of costs.
In this application for an unfair dismissal remedy the applicant, employed as a clerical assistant, was dismissed without notice for accessing company documents for her own benefit, creating a falsified letter of reference on company letterhead and removing or destroying company records.
The respondent contended that the application should be struck out on the basis that it had been deregistered by the Australian Securities and Investments Commission.
The Commission was satisfied that it could determine the applicant’s claim despite the respondent’s deregistration. Section 601AD of the Corporations Act 2001 (Cth) does not preclude the application being determined by the Commission.
The Commission found that the Small Business Fair Dismissal Code (the Code) was relevant and considered the findings in Grandbridge. The Commission considered that the respondent had a reasonable basis for considering the creation of the falsified letter of reference warranted immediate dismissal. The Commission further considered that the respondent had a reasonable basis for considering that the destruction or removal of records also warranted immediate dismissal. The Commission found that the dismissal was consistent with the Code and dismissed the application.
The Commission noted that the respondent’s Form F3 referred to ‘undoubtedly questionable practices/arrangements having been adopted and/or agreed by the parties’ in this case in an effort to assist the applicant secure permanent residence in Australia. The Commission held that those ‘questionable practices/arrangements’ may potentially involve contraventions of either the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth), and/or the Income Tax Assessment Act 1936 (Cth) by either the respondent and/or the applicant. Against that background the Commission asked the Commission’s General Manager to bring the circumstances in this case to the attention of both the Department of Home Affairs and the Australian Tax Office.
The applicant in this unfair dismissal matter was employed as a local driver of a heavy rigid vehicle from 1 March 2016 until his dismissal on 8 January 2020. The applicant was summarily dismissed for refusing to submit a urine sample for a drug and alcohol test. The applicant contended that the respondent did not have a good reason to request him to produce a urine sample, and that he did not refuse but was unable to provide one and would provide one the following day. The respondent contended it had a legitimate concern based on the applicant’s erratic behaviour while driving a truck. The respondent further contended that refusing to produce a urine sample over a period of many hours was contrary to company policy. The policy was submitted to the Commission which states it is a condition of employment that employees register a zero level of alcohol and drugs, and that if an employee is found breaching the company’s zero tolerance policy they will be subject to disciplinary action, which may include dismissal.
The Commission was satisfied that the respondent had a reasonable basis to have concerns that the applicant was under the influence of drugs or alcohol and therefore not fit to be driving a truck. The Commission found that the respondent acted in accordance with its policy, and that the applicant was aware of the policy and unreasonably failed to provide a urine sample for the purpose of the test. The Commission was further satisfied on the balance of probabilities that the respondent had a valid reason to dismiss the applicant. The Commission found that the summary dismissal was not disproportionate to the conduct in question. The Commission found that the dismissal was not harsh, unjust or unreasonable and accordingly applicant’s dismissal was not unfair. The application was dismissed.
In this application for an unfair dismissal remedy the applicant was employed as a Recruitment Consultant since March 2019 and was dismissed for refusing to follow a lawful and reasonable direction. The respondent directed all employees on 6 March 2019 to complete a survey providing their travel history outside Australia, and any travel plans within the next six months, including locations and dates. The purpose of the survey was to enable the respondent to ascertain any potential exposure for all employees to COVID-19 in the workplace. The applicant submitted that the survey breached privacy principles. The respondent submitted that the request for travel information was reasonable and also to meet its obligations in relation to occupational health and safety.
The Commission considered that the questions asked on the survey did not request sensitive health information. The Commission found that the purpose of the survey request was to enable the respondent to protect itself and employees against any risk of COVID-19. The Commission considered that the survey request was lawful and reasonable. The applicant’s failure to return the completed survey was a valid reason for his dismissal. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.
This application to deal with a general protections dismissal was determined by arbitration. The applicant was employed on a full-time basis in the position of Receptionist/Accounts by the respondent, a family run business. The applicant commenced employment in September 2008 and alleged that adverse action was taken against her when she was dismissed on 30 November 2018. The applicant alleged that the respondent took adverse action against her by dismissing her from her employment. The applicant was pregnant and suffering from gestational diabetes at the time her employment ended. In the alternative the applicant claimed the respondent took adverse action against her by threatening to alter her position to her prejudice, by dismissing her from a full-time position and offering her casual employment instead.
The applicant submitted that prior to her employment ending she raised issues in relation to her entitlement to take sick leave to attend pre-arranged medical appointments relating to her pregnancy and associated medical condition. Further submitted that her leave and award entitlements were also previously raised.
The applicant received a termination of employment letter, citing the reason of redundancy, on 30 November 2019. The letter referred to the possibility of a casual position being offered to the applicant. The applicant did not take up the offer of casual employment and contended that she was dismissed. The applicant further asserted that the respondent’s Directors and Managers were aware of her pregnancy and related medical condition, as well as her intention to take maternity leave. This point was disputed between the parties. The respondent maintained that the decision to reduce the applicant’s working hours was due to a downturn in its business and had offered to ‘transfer’ her to a casual position or part-time position.
The applicant sought compensation in respect of statutory entitlements, loss of past and future earnings, hurt, humiliation and distress. The amount of compensation sought included an amount for the underpayment of wages based on the assertion the respondent incorrectly paid the applicant under the Business Equipment Industry Award 2010, thereby resulting in an underpayment of accrued annual and long service leave entitlements. Further, the respondent had debited the applicant’s accrued annual leave and did not pay four weeks’ wages in lieu of notice on termination of her employment. The applicant also submitted that the dismissal resulted in a loss of entitlement to Paid Parental Leave because she did not meet the work test required by Centrelink to receive such a payment.
Based on the evidence, the Commission was satisfied that at the time the applicant’s employment ended, she had workplace rights which she had exercised or proposed to exercise. The Commission stated that the applicant had a right to paid personal leave and had sought to exercise that right for the purposes of attending pre-arranged medical appointments with respect to treatment for pregnancy related gestational diabetes. The Commission explained it was irrelevant whether the applicant was actually entitled to access personal leave for the purposes of attending a pre-arranged medical appointment but what was relevant was that the leave is a workplace right which the applicant sought to exercise. Further, the fact that the applicant may not have finalised the precise time at which she intended to commence maternity leave, or that she had not formally advised the respondent of the fact that she was pregnant, does not alter the fact that she had a right to take maternity leave and intended to exercise it.
The Commission was also satisfied that the applicant had previously raised issues with her employer regarding her leave entitlements, including her entitlement to be paid annual leave loading. Each of these matters was a workplace right as defined in s.341 of the Fair Work Act, being a benefit of a workplace law and/or a workplace instrument regardless of the specific modern award that applied to the applicant’s employment.
The Commission was further satisfied that the applicant was dismissed on 30 November 2018 and that the conduct of the respondent in terminating the applicant’s full-time employment brought the employment relationship to an end. The respondent seeking to terminate the applicant’s full-time employment and offer her casual employment on an uncertain and unspecified basis altered the applicant’s position to her prejudice. The Commission found from the evidence it was clear that the respondent contravened ss.340 and 351 of the Fair Work Act by taking adverse action against the applicant because the applicant was pregnant and had sought personal leave to deal with her gestational diabetes. Though accepting the economic situation of the respondent was also a reason for the termination of the applicant’s full-time employment, the Commission concluded that the prohibited reasons were substantial or operative factors influencing the adverse action.
The Commission considered Heraud v Roy Morgan Research Ltd (No 2). The Commission determined the applicant’s compensation for future economic loss was $15,934.10. The Commission also determined it was appropriate to order an amount of $15,000.00 for non-economic loss; compensation of $5,768.00 for past economic loss; $13,330.80 for loss of entitlement to the Commonwealth Government paid maternity leave scheme; and $2,061.70 for superannuation contributions. The compensation for past and future economic loss to be taxed according to law.
At first instance Commission approved the Hungry Jack’s National Enterprise Agreement 2019. The Retail and Fast Food Workers Union Incorporated (RFFWUI) lodged a notice of appeal which contended that the Commission erred in approving the Agreement as ss.186, 188 and 190 of the Fair Work Act were not met; erred in reaching a state of satisfaction the Agreement passed the BOOT and had been genuinely agreed to by the employees covered by it. The RFFWUI further contended that the Commission denied procedural fairness to employees who would be covered by the Agreement and the bargaining representatives by failing to provide further reasons for its decision.
The Full Bench was satisfied that granting permission to appeal was in the public interest. The Full Bench also noted that the circumstances of the appeal were unusual. Hungry Jack’s Pty Ltd (Hungry Jack’s) is the employer of approximately 16,000 persons working in a chain of well-known fast food restaurants in Australia. Hungry Jack’s is a subsidiary of Hungry Jack’s Australia Pty Ltd (HJA). Prior to the Agreement taking effect employees of Hungry Jack’s were covered on a state-by-state basis by a number of collective agreements preserved by the Fair Work Act. A notice of employee representational rights was circulated to all Hungry Jack’s employees in August 2016. The Full Bench was satisfied there was no doubt the Agreement was to cover Hungry Jack’s and its employees in its fast food restaurants. HJA was not the employer of anybody employed in Hungry Jack’s restaurants and therefore not a bargaining representative nor competent under s.185 to make the application for approval of the Agreement.
The initial application was subject to a preliminary assessment by Commission staff which identified a number of potential approval difficulties including the dispute resolution term; flexibility term; consistency with the NES and the BOOT as well as Clause 4 of the Agreement in so far as it related to coverage. The Full Bench identified that the Commission had sufficient evidentiary material in June 2019 to resolve any of these potential difficulties and determine the application but did not do so. The Agreement was subsequently approved but reasons for the decision were never published.
The Full Bench considered that it was inappropriate to remit the application for approval to a single member of the Commission for re-determination so as a result the Full Bench determined the application based on the evidence, submissions and other material that was before the Commission, and the additional evidence and submissions received in appeal. The Full Bench found application was not capable of approval as the application in the form in which it was filed, incorrectly noted HJA as the applicant. This raised concerns with the Full Bench that the Agreement was not genuinely agreed to by the employees and the Agreement did not pass the BOOT. The decision at first instance was quashed.
Hungry Jack’s provided undertakings in response to the BOOT concern; coverage clause; individual flexibility arrangements clause; dispute resolution clause, classifications clause, minimum weekly wages clause; uniforms and special clothing clause; delivery drivers clause and Schedule A. The Agreement approved with undertakings with a nominal expiry date of 9 April 2024.
The CFMMEU lodged appeals relating to decisions made by the Commission in relation to the approval of the MSS Latrobe Valley Enterprise Agreement 2018. The CFMMEU initially sought to be heard in relation to the application. At first instance the Commission concluded that the CFMMEU did not have a right to be heard as it was not a bargaining representative for the Agreement but nevertheless exercised discretion and allowed the CFMMEU to make submissions in relation to whether the Agreement passed the better off overall test and the requirement that the Agreement include a dispute settlement term.
The CFMMEU was covered by an existing Greenfields Agreement and asserted that its rights under that agreement would be affected. The Commission held that such effects were indirect or inconsequential on any decision to approve the new enterprise agreement.
The grounds for appeal included the decision of the Commission to not to hear from, or to further hear from, the CFMMEU in opposition to the application to approve the Agreement, beyond the requirement for the Agreement to include a dispute resolution clause and in relation to the better off overall test. The Full Bench found that the CFMMEU was, at the time the Commission considered its application to be heard, covered by the Greenfields Agreement on the basis that a decision to approve an enterprise agreement which, when it commences operation has the effect of removing the right of a registered organisation to enforce the terms of an antecedent enterprise agreement covering it, directly affects that organisation.
However, that conclusion alone did not result in the grant of permission to appeal that Decision; the Full Bench noted that it would need to be satisfied that the Commission was in error in the approval Decision, otherwise there would be little utility in granting permission and upholding the appeal. The Full Bench nonetheless agreed that there were grounds to believe that there was not sufficient evidence to reach a conclusion that the application was capable of supporting the approval of the Agreement. Since appealable error was established, the Decisions at first instance were quashed and the Full Bench determined that the CFMMEU was entitled to be heard.
The application for the approval of the Agreement was remitted to the Commission for redetermination. The Commission concluded that the other elements of the genuinely agreed requirement in s.188 of the Fair Work Act were satisfied. The Commission also noted that there was no contention that the Agreement did not pass the BOOT, emphasising that the employees would be better off overall by a significant margin. The Commission was satisfied that the other approval requirements in s.187 were met, and then made directions to facilitate the provision of undertakings by MMS to address the deficiencies identified. The Agreement was approved with undertakings and the CFMMEU appealed.
The CFMMEU case on appeal focused on four contentions of error said to have been made by the Commission. Firstly, that the Commission erred in finding that the deficiency in meeting the signature requirements for the Agreement could be remedied by the exercise of power under s.586. Secondly, that the CFMMEU identified a range of terms of employment in relation to the Applicant’s evidence that may have explained how the Agreement would operate but gave no evidence as to how those terms would operate differently and what was actually to be lost as compared to the existing provisions in the two preceding greenfields agreements. The CFMMEU contended that by virtue of this fact the acceptance of undertakings to remedy the failure to comply with s.180(5) was an appellable error. Thirdly, that the Commission erred in its consideration pursuant to s.188(1)(c) as to whether there were other reasonable grounds for believing that the Agreement had not been genuinely agreed. This was argued by the CFMMEU on the basis that the Agreement applied to multiple Awards (rather than just the Manufacturing Award), that the employees had the requisite authority to vote on the number of classifications in the Agreement, that the Commission failed to consider that there was little or no actual bargaining and the manner in which bargaining occurred had the hallmarks of individual rather than collective bargaining and finally that the Commission’s conclusion that undertakings could be accepted pursuant to s.190 to rectify non-compliance with the pre-approval steps set out in s.180 was in error. It was the CFMMEU’s view that the respective provisions in the Fair Work Act pertain to the text of actual enterprise agreements themselves (rather than pre-approval procedures) and a failure to undertake pre-approval steps could not be remedied retrospectively by the use of undertakings.
The Full Bench decided that an employee did not need to have been a formally appointed bargaining representative within the meaning of s.176(1) who was covered by the Agreement in order to have the authority to sign the Agreement on behalf of the employees, but rather, merely needed to be an employee as pursuant to Regulation 2.06A of the Fair Work Regulations.
The Full Bench also found that there was no requirement that the requisite explanation of the terms and the effects of the Agreement had to be in writing, and because the cohort of employees who voted was small oral explanations that were sufficiently detailed were compliant with s.180(5). The other modern awards said to be imported into the agreements were not articulated by the CFMMEU and the classifications dispute wasn’t relevant as it was distinguished from precedents such as KCL Industries Pty Ltd. The present case was also distinguished from CFMMEU v Karijini Rail Pty Ltd. The Full Bench emphasised that Karijini is not authority for the proposition that any instance of non-compliance with s.180(5) is curable by undertakings and that this case did not fall within Karijini, defeating the fourth contention made by the CFMMEU. This was because the undertakings provided addressed the Commission’s initial concerns (that a small number of more beneficial terms in the pre-existing instruments had been excluded by the Agreement) by restoring the more beneficial terms for the purpose of the Agreement. Permission to appeal was refused.
This matter relates to an appeal against the decision approving the C&H Gencon Enterprise Agreement 2020. Prior to the approval the respondent provided an undertaking that the coverage of the agreement would not exclude employees who exceeded the high income threshold (the coverage undertaking), as well as an undertaking providing reconciliation of pay (the reconciliation undertaking). The appellant submitted that the coverage undertaking constituted a substantial change to the Agreement. The respondent submitted that no employees were affected by the coverage undertaking.
The Full Bench considered that substantial change for the purposes of s.190 of the Fair Work Act referred to a degree of change that altered the nature of the agreement. The Full Bench held the word ‘substantial’ in s.190(3)(b) signifies a degree or quality of change that is substantial in the sense that it would alter the essence or nature of the agreement, it is concerned with change that is transformative of the agreement so as to raise concerns that the change may have affected the way in which employees chose to vote in approving the agreement. The Full Bench found that acceptance of the coverage undertaking would be unlikely to impact any employees. The Full Bench further found that the coverage undertaking would not result in substantial change to the Agreement.
The appellant submitted that the reconciliation undertaking was not sufficient to ensure that employees would be better off overall. The Full Bench did not consider that the Commission initially erred in accepting the reconciliation undertaking.
Permission was granted to appeal on the grounds relating to the coverage undertaking. Permission to appeal on grounds relating to the reconciliation undertaking was refused. The appeal was dismissed.
This matter relates to an alleged dispute under the Endeavour Energy Enterprise Agreement 2017. The dispute was filed by Endeavour Energy concerning proposed changes to its Alcohol and Other Drugs Procedure (AODP). The respondents identified in the dispute were three unions, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, United Services Union, and Professionals Australia (together, the Unions).
The present dispute was the subject of an arbitrated decision in 2012 [ FWA 1809] and was unsuccessfully appealed in [ FWAFB 4998]. The central focus in the present case was on two main matters, a 0.0mg/100ml blood alcohol concentration (BAC) for all employees, and the introduction of random urine testing for drug detection on a 50/50 selection basis with oral swab testing.
The Unions contended that the proposed change was inconsistent with the prior arbitration; that it included unreasonable directions in the course of work; and that Endeavour Energy did not engage in an interest based approach to consultation and did not give genuine consideration to alternatives proposals put to it by the Consultative Committee.
The Commission noted that expert evidence differed in emphasis about a preference for urine testing over oral fluid testing, but experts agreed the two methods of testing have different benefits and disadvantages. The Commission was not satisfied that Endeavour Energy established any reasonable basis for changing its current BAC cut-off levels to 0.00% for its entire workforce. The Commission found no justification for altering the BAC levels from 0.02% for high-risk employee testing and 0.05% for all other employee testing. However, the Commission was satisfied that there was merit in adopting a 50/50 ‘blended’ random urine and oral fluid testing program for the presence of drugs. Using both methods would have significant advantages in achieving and extending the common objectives of a contemporary, relevant, appropriate and fair AODP to deal with drug use in the workplace. The Commission was further satisfied that urine testing would detect long term or chronic drug use, detect a wider range of drugs and would reduce incidence of false non-negative results. The Commission directed that the omissions from the existing AODP be included in a revised procedure, and the parties were directed to prepare a draft procedure in accordance with the Commission’s conclusions.
In this application for an order to stop bullying the applicant was employed by Ultrarad Pty Ltd trading as Queensland X-Ray (the employer or Queensland X-Ray). All of the participants in this matter are employees of Queensland X-Ray, and all, except the human resources (HR) staff are registered health practitioners: nurses, medical doctors and a medical radiographer.
The applicant is a nurse who has been employed since October 2017, principally at the employer’s Greenslopes practice. A more senior nurse is the person named in the application as having engaged in the bullying behaviour. The applicant alleged that the bullying conduct by the person named included:
The applicant also alleged that HR staff failed to respond adequately to her complaints, including her complaints about bullying.
The Commission was satisfied that the applicant genuinely believed that she had been bullied at work, however those beliefs must be reasonable in the sense that they are able to be supported or justified on an objective basis by evidence. The applicant needed to be able to show that there had been repeated unreasonable conduct by the person named towards her, and that that behaviour created a risk to her health and safety. The Commission held that the evidence did not support the conclusions on an objective basis, and therefore the application must fail.
Even if the evidence had supported a conclusion of bullying, this is a case where the Commission would not exercise discretion to make an order as requested. This is because once the application was filed, the employer undertook an investigation, and while the investigation itself was of limited value it did find some practices that required improvement. Further, before the hearing, the employer made an offer for the applicant to return to employment at a newly acquired practice. This would remove any need for the applicant to have contact with the person named, and the Commission held that it was clear from this offer that the applicant remains a valued member of Queensland X-Ray staff. The Commission made several recommendations, including that the person named receive further training in communicating respectfully and maintaining appropriate boundaries.
On 27 April 2020 the Full Bench issued a decision dealing with the finalisation of exposure drafts and variation determinations in Tranche 3. The exposure drafts and draft variation determinations were published for each of the Tranche 3 modern awards on 29 January 2020. In an accompanying decision [ FWCFB 421] the Full Bench expressed the provisional view that the variation of the modern awards in Tranche 3 in accordance with the draft variation determinations was, in respect of each award, necessary to achieve the modern awards objective. Interested parties were invited to comment. On 2 March 2020 the Full Bench decided to re-publish the exposure drafts and draft variation determinations for the ‘Construction awards’ in Tranche 3 after the Full Bench in AM2016/23 has issued final variation determinations. On 23 March 2020 the Full Bench published a Statement and a Background Paper summarising the submissions regarding the remaining 34 modern awards in Tranche 3, addressing minor drafting issues in the exposure drafts and draft variation determinations, setting out some provisional views about submissions and inviting interested parties to comment on submissions.
In this decision the Full Bench divided the Tranche 3 awards into five categories. Category 1 included 17 uncontentious awards. The Full Bench confirmed its provisional views of 29 January 2020 and decided to issue variation determinations for each of these awards in the terms published on 29 January 2020, subject to amendments necessary to give effect of this decision and other relevant Full Bench decisions and to correct minor typographical issues. These variation determinations were scheduled for publishing by 30 April 2020 and to commence operation on 18 June 2020.
Category 2 included six awards for which the exposure drafts and draft variation determinations required significant amendment to reflect the outcome of this decision. Revised exposure drafts and draft variation determinations were scheduled for publishing by 30 April 2020. Interested parties were invited to comment. A decision finalising the variation determinations for these awards will follow.
Category 3 included nine awards which involve outstanding issues. Conferences will be convened in respect of the disputed issues.
Category 4 included the Construction awards. A Statement and directions are to be issued regarding the finalisation of the exposure drafts and draft variation determinations for these awards.
Category 5 included three awards. The issues regarding the Black Coal Mining Industry Award 2010 are to be determined in accordance with the directions set out in a Statement published on 12 March 2020. A separate Statement will be issued regarding the finalisation of the exposure draft and draft variation determination for the Educational Services (Teachers) Award 2010. In relation to the Nurses Award 2010, the Full Bench provided Ai Group and the ANMF until 23 May 2020 to file a joint note indicating the terms of the exposure draft and draft variation determination which are related to AM2020/1. A revised exposure draft and draft variation determination will be published in July 2020. A mention will then be held to set the timetable for parties to provide comments in relation to those aspects of the revised exposure draft and draft variation determination which are unrelated to AM2020/1.
This section provides summaries of the Full Court of the Federal Court of Australia reviews of Commission decisions.
The Commission in the first instance found that the applicant’s dismissal for serious misconduct was not unfair in light of all the circumstances. The dismissal arose from the applicant’s involvement in the making and distribution of a video which, it was alleged, depicted BP representatives in enterprise agreement negotiations with employees as Nazis. The Full Bench found that the conclusion that the video constituted a valid basis for dismissal was outside of the legally permissible range of conclusions, quashed the original decision, upheld the appeal and ordered the appellant be reinstated.
BP’s application to the Federal Court alleged two grounds of error: first, that the Full Bench merely substituted the first instance evaluation of the alleged misconduct with its own, and in doing so misconceived its appellate function; and second, that the evaluation of the conduct involved a question of fact, and so the Full Bench was required to but did not consider s.400(2) of the Fair Work Act. The Full Court rejected the first ground, stating the Full Bench were not stating a mere difference of opinion, but rather, a legal conclusion that the first instance decision was outside the boundaries of legal reasonableness. The second ground was rejected on the basis that it was common ground that the evaluation involved issues of fact, and so the Full Bench implicitly engaged s.400(2).
The Full Court dismissed the application on 22 May 2020.
The President of the Commission approved an update to Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement).
The form has been revised to make it less complex and less time consuming to complete. The changes include simplifying explanatory material, reordering the questions and sections of the form, and reducing the overall number of questions.
The updated Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) is available on the Forms page of our website.
The Commission has published an updated version of the General protections benchbook.
The updated version reflects recent changes to the Privacy Act 1988 (Cth) to include workplace rights that are intended to protect employees and others from disadvantage or other adverse consequences if they decide not to download or use the COVIDSafe app.
The benchbook contains plain English summaries of the key principles of general protections case law and how these have been applied in Commission decisions. It is designed to provide information to parties to assist in the preparation of material for matters before the Commission.
The General protections benchbook is designed to be read online and can be accessed on the Commission’s website. A printable version of the benchbook is also available for download.
From 1 July 2020 the application fee for dismissals, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009 has increased to $74.50.
Also effective from 1 July, the high income threshold in unfair dismissal cases has increased to $153,600 and the compensation limit is now $76,800 for dismissals occurring on or after 1 July 2020.
Commission President, Justice Ross, approved an amendment to Form F3 – Employer’s response to unfair dismissal application, to incorporate the increase to the high income threshold.
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