MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – Statement dealing matters concerning ‘payment of wages’ terms in modern awards – on 1 December 2016 Full Bench issued decision dealing ‘payment of wages’ issues in modern awards (December 2016 decision) [[2016] FWCFB 8463] – main issues dealt with in December 2016 decision were: timing of payment of wages; timing of payment on termination of employment; and accrual of wages and other amounts – issues related to penalties for late payment of wages and annual leave loading have been determined – a claim made by Restaurant and Catering Industrial (RCI) in relation to removing a restriction on the days for payment of wages in respect of the Restaurant Industry Award 2010 was referred to the Award stage of the review – December 2016 decision set out provisional views and model terms in respect of issues related to timing of payment of wages and timing of payment on termination of employment – Full Bench called for further submissions in relation to these issues, and also called for further submissions to be filed in respect of issue related to accrual of wages – a number of submissions were received from parties – at 23 March 2017 hearing Full Bench noted that there appeared to be a measure of agreement between parties about some important matters of principle – Statement issued 26 April 2017 identified areas of agreement and disagreement [[2017] FWCFB 2290] – purpose of 4 May conference was to provide parties with opportunity to identify which areas were agreed and those that may require determination – at conference, parties confirmed there is general agreement in a number of areas – timing of payment of wages – provisional view expressed in December 2016 decision was that all modern awards should include a term providing for method and frequency of payment as well as placing a limit on payment in arrears – Full Bench also considered that there was utility in establishing a model ‘payment of wages and other amounts’ award term – timing of payment on termination of employment – in Statement published 14 October 2016 [[2016] FWCFB 7455], Full Bench expressed some provisional views in respect of this issue – in December 2016 decision, Full Bench confirmed their provisional view that each modern award should provide for payment of wages and other amounts owing to an employee on termination of employment – such term should also prescribe timeframe within which such termination payments are to be made – Full Bench also confirmed their provisional view that there is utility in a common ‘payment on termination’ provision across all 122 modern awards – accepted that each modern award is to be reviewed in its own right and there may be sound reasons for departing from model term in a particular modern award – accrual of wages and other amounts – December 2016 decision outlined an issue in relation to accrual of wages and other amounts, in that award provisions do not expressly deal with accrual of payments – s.323 FW Act deals with method and frequency with which employers must pay ‘amounts payable to the employee in relation to performance of work’, and appears to have effect that such amounts must be paid no later than one month after accrual – however s.323 does not specify when ‘amounts payable to the employee in relation to the performance of work’ become payable – December 2016 decision noted academic commentary suggested that, absent express provision for accrual in an award, if wages are required to be paid periodically under the award (for example, weekly, fortnightly or monthly) then they will be taken to accrue with at least the same frequency – Full Bench directed parties to file further written submissions regarding this issue – submission received by Irving and Stewart proposing insertion of a new default term into all modern awards dealing with the accrual of wages ‘on a day to day basis’ unless industry circumstances required modification of default wording – appears to be general agreement that awards should prescribe how wages accrue, but this general issue requires further discussion – next steps – agreed interested parties will have direct discussions relating to timing of payment of wages model term – parties requested period of seven weeks to confer with affiliates and then forward a position to opposing side – matter will be listed for mention before President at 10am on Wednesday 5 July 2017. 4 yearly review of modern awards – Payment of wages
May 29, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – decision at first instance determined dismissal unfair – appellant appealed on grounds of both error in law and fact – Full Bench found in public interest to grant permission to appeal in relation to grounds that raise issue concerning import and application of Pettifer – Tasports submitted Pettifer stood for principle that where a host employer who had an employee of a labour hire company removed from site that caused a necessarily valid reason for dismissal from labour hire company based on employee’s capacity for purpose of s.387(a) FW Act – Full Bench did not accept that submission – whether there is a valid reason depends on all circumstances in case – Pettifer applies principle stated in Adecco to a particular factual scenario – found a number of factual matters distinguished this matter from Pettifer including contract between host and labour hire provider, labour hire provider simply adopting host employer view without forming own independent conclusion as to valid reason and lack of investigation into redeployment options – in decision at first instance, approach in Adecco adopted which was correct and consistent with Pettifer – no appealable error found [House v King] – appeal dismissed. Appeal by Tasmanian Ports Corporation P/L t/a Tasports against decision of Wells DP of 4 January 2017 [[2017] FWC 31] Re: Gee
May 29, 2017
CASE PROCEDURES – confidentiality – appeals – ss.593, 594, 604 Fair Work Act 2009 – appeal of Commission decision not to grant application to suppress all evidence, materials and transcripts in proceedings, including any decision issued – permission to appeal only granted if in public interest – this matter raised important questions concerning the principles of open justice – Full Bench concluded public interest is enlivened – permission to appeal granted – presumption in s.593(2) of the Act that hearings must be held in public accords with principle of open justice (Seven Network) – departure from principle only justified where observance frustrates the administration of justice by unfairly damaging some material private or public interest – potential embarrassment no justification for suppressing the matter by way of an ongoing confidentiality order – by bringing their dispute to the Commission, parties accepted necessity to conduct proceedings openly and transparently to uphold confidence in the Commission – Full Bench not satisfied there should be a departure from principles of open justice – appeal dismissed – stay order revoked. Appeal by United Firefighters’ Union of Australia against decision and order of Wilson C of 27 March 2017 [[2017] FWC 1708] and 28 March [PR591374] Re: Metropolitan Fire and Emergency Services Board
May 29, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – extension of time – s.773 Fair Work Act 2009 – applicant had been employed by Queensland public service – dismissed on 7 November 2013 – pursued application for unfair dismissal to Queensland Industrial Relations Commission (QIRC) – submitted she was unaware of her right to refer the matter to the Fair Work Commission (the Commission) until 22 June 2016 – Commission held evidence indicated that applicant did know earlier that she had the opportunity to pursue application to Commission, but instead chose to exhaust her rights in the Queensland system, which were exhausted in November 2015 – applicant previously advised that an employee must not make both an unlawful termination application to the Commission and an application under Queensland state laws in respect of the same termination – Commission held that there were not exceptional circumstances to warrant granting applicant an extension of time – applicant did not have reasonable explanation for the whole of the delay and apart from disputing the dismissal none of the other criteria weigh in favour of finding exceptional circumstances – accepted the dismissal has caused applicant emotional and financial distress, however this was not a case where the denial of an extension of time meant that applicant would be denied the opportunity to have her grievance about her dismissal heard and determined; she had that opportunity when she made her case before the QIRC – application dismissed. Wanninayake v State of Queensland
May 29, 2017
CASE PROCEDURES – appeals – grounds of appeal – s.604 Fair Work Act 2009 – Full Bench – decision at first instance found employees of respondent employer better off overall under ALDI Regency Park Agreement 2015 (the Agreement) – appellant union lodged notice of appeal against first instance decision – matter adjourned pending result of concurrent Federal Court proceedings – Federal Court decision subsequently handed down quashing decision of related Full Bench and first instance decision – appellant sought leave to amend grounds of appeal – Full Bench noted fact that respondent applied for special leave to High Court which was granted on 8 March 2017 – matter before Full Bench whether leave should be granted to amend grounds of appeal – appellant relied on Federal Court ruling in SDA v ALDI – contended additional ground of appeal concerned legal capacity and jurisdiction of Commission to approve the Agreement – in the event that respondent’s appeal to High Court dismissed additional ground of appeal would be dispositive of appeal in present matter in appellant’s favour – raising of additional ground explicable by reason of decision of Federal Court – Full Bench considered various factors noted by White J in support of construction that change in tense in the FW Act (as between ss.172 to 181 and ss.186 to 188) meant that, at time of approval, there must be some employees actually covered by the Agreement – Full Bench also noted respondent did not oppose application to join additional ground of appeal – appellant granted leave to amend grounds of appeal. Appeal by Shop, Distributive and Allied Employees Association against decision of Bull DP of 5 April 2016 [[2016] FWCA 2028] Re: ALDI Foods P/L as General Partner of ALDI Stores (A Limited Partnership)
May 29, 2017
CASE PROCEDURES – appeals – extension of time – s.400 Fair Work Act 2009 – Full Bench – application for extension of time to lodge appeal – notice of appeal lodged almost two years out of time – at first instance appellant found unjustly dismissed and 38 hours’ pay ordered as compensation – matters relevant to whether extension of time should be granted are reason for and length of delay; nature of appeal grounds and likelihood of grounds being upheld; and prejudice to respondent – reasons given for delay were appellant took time to complain about, then seek to resolve, issues regarding the matter at first instance without appealing – Full Bench found reasons for delay unsatisfactory and length of delay ‘very substantial’ – Commission must not grant permission to appeal unless in public interest – appeals on question of fact may only be made if decision involved significant error of fact – statutory test is stringent [Coal & Allied] – public interest test is discretionary and involves broad value judgment [O’Sullivan] – considerations that may attract public interest identified in GlaxoSmithKline – rarely appropriate to grant permission to appeal unless arguable case of appealable error [Wan] – fact that Member at first instance made error not necessarily sufficient basis for granting permission to appeal [GlaxoSmithKline] – appeal grounds included appellant had not received all correspondence between Commission and parties – employer had not provided legal name of relevant persons – Full Bench found these insufficient for granting permission to appeal – other grounds were material filed by respondent was illegal, incorrect and could be damaging to appellant’s current employment – Full Bench found member at first instance had not erred in admitting evidence used and although appellant might not be happy with the evidence, this was insufficient to allow permission to appeal – appellant unhappy with compensation amount but did not submit grounds showing appealable error – Commissioner had correctly applied legislation and there was no arguable case of any error of principle or significant error of fact – even if extension of time were granted, Full Bench not satisfied permission to appeal would have been granted – no prejudice to respondent – Full Bench concluded appellant had not provided satisfactory explanation for delay – lack of prejudice to respondent was not sufficient to extend time for appeal – not satisfied appeal raised public interest considerations – application for extension of time to lodge appeal dismissed – permission to appeal refused. Appeal by Iurato against decision of Ryan C of 12 May 2015 [[2015] FWC 3248] Re: Crossmark Australia P/L
May 29, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed in Mobile Maintenance Department at Coppabella Mine – applicant dismissed as result of applicant losing control of a light vehicle in a ‘no go zone’ – breach of Cardinal Rule 3 (Rule 3) – applicant conceded he was in alleged ‘no go zone’ but refuted allegation area was a ‘no go zone’ according to respondent’s policy – claimed no valid reason for termination – respondent did not articulate what policy was breached – restricted area was not signed and work in the area lead reasonable person to believe the area was no longer restricted – respondent did not substantiate how the applicant failed to drive to conditions – submitted prior warnings taken into account by respondent in deciding to terminate his employment should not have carried any weight – respondent submitted termination not harsh, unjust or unreasonable as there was valid reason for termination being the serious breach of safety procedures – safety breach constituted valid reason for termination – claimed applicant had poor record of compliance with safety procedures, evidenced by three final written warnings – claimed applicant was notified mine pit a restricted area which was signed accordingly but applicant entered without authorisation and lost control of vehicle, causing serious damage – claimed it had discharged its onus to establish the misconduct occurred as alleged – whether dismissal was harsh, unjust or unreasonable – Commission satisfied applicant was notified of reasons for dismissal and given opportunity to appropriately respond – respondent conceded allegation initially put to applicant was that he breached Rule 3 by entering a ‘no go zone’ but reconciled allegation to a ‘restricted access area’ and therefore applicant was not in breach of Rule 3 – Commission found this a procedural flaw – found issues arising from applicant’s ability to properly respond and consider reasons provided for termination did not constitute fatal procedural flaws – found conduct of applicant substantiated as valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Hill v Peabody Energy Australia PCI Mine Management P/L
May 29, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant travelled to Bali in September 2014, February 2015 and February 2016 to have dental procedures carried out – applicant provided medical certificate for February 2015 visit which stated that she had been treated at Clinic – applicant submitted she provided a second certificate, which included the words ‘so was unable attended work’ – respondent considered applicant had fabricated second certificate so as to have annual leave converted to sick leave – applicant suspended then later terminated for fabrication of medical certificate – applicant absolutely denied that she had falsified certificate in order to claim personal leave entitlement – admitted to modifying medical certificate in 2015 but explained that this was with intention of emailing it to Clinic with a request to have medical certificate reissued with additional phrase ‘so was unable attended work’ – Commission found applicant altered medical certificate – found, on balance, valid reason for applicant’s dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Bluzer v Monash University
