ANNUAL WAGE REVIEW – 2016/17 financial year – preliminary hearing – s.284 Fair Work Act 2009 – Full Bench – in the Annual Wage Review 2015-16 decision (the 2015-16 Review decision) [[2016] FWCFB 3500], the Expert Panel (the Panel) proposed that two issues be the subject of a preliminary hearing for the 2016-17 Annual Wage Review (the 2016-17 Review) – a review of the transitional instruments relevant to annual wage reviews; and the existing arrangements for employees with disability – in their submission to the 2015-16 Review, United Voice proposed that the Panel conduct a separate process of submissions and hearings in relation to setting a medium-term target as an ‘additional tool to assist it in the performance of its annual obligations’ – the Panel agreed and indicated that the proposal for the adoption of a medium-term target would form part of the preliminary hearing for the 2016-17 Review – proposal for a medium-term target – on 19 September 2016, a background paper prepared by staff of the Commission was published to assist submissions for the hearing into the setting of a medium-term target for annual wage reviews – submissions in favour of a medium-term target were received from United Voice, the Australian Council of Trade Unions (ACTU), the Australian Council of Social Service (ACOSS) and the Australian Catholic Council for Employment Relations (ACCER) – submissions argued that a medium-term target was necessary to assist with consideration of the relative living standards and needs of the low paid by addressing inequality, particularly the minimum wage relative to median earnings – the submissions that proposed a medium-term target suggested that it be set at 60 per cent of median earnings in four years – Submissions from the Australian Government, the Australian Industry Group (Ai Group), Australian Business Industrial and New South Wales Business Chamber (ABI and NSWBC) and the Australian Federation of Employers and Industries (AFEI) did not support a medium-term target – these submissions generally contended that a medium-term target was inconsistent with or not supported by the Fair Work Act – parties also argued that such a target would reduce the Panel’s flexibility to respond to changing economic conditions – the FW Act requires the Panel to conduct and complete a review of the national minimum wage and minimum wages in modern awards – the Panel held it was clear and uncontroversial that in the context of a particular Review the Panel cannot ‘bind’ future panels in subsequent reviews – follows that any attempt to adopt a ‘hard’ or binding medium term target for the NMW would be ineffective (even if it were accepted that the Panel had power to adopt such a target) – whether any useful and appropriate purpose would be served by adopting a more ‘flexible’ medium-term target – minimum wages objective and modem awards objective considered – there is often a degree of tension between the economic, social and other considerations which the Panel must take into account – the Panel noted that given the legislative context and its approach to its statutory task a ‘flexible’ medium- term target would be of little assistance – transitional instruments – in the 2015-16 Review decision the Panel proposed that a review be conducted of transitional instruments that arose for consideration in the Annual Wage Review process in the following year’s review – on 19 September 2016 the Commission released, among other things, a background paper traversing issues and materials relevant to a review of transitional instruments – transitional instruments are those which were created by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act) and State industrial relations systems and preserved in operation, transitionally or otherwise, by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) – a number of interested parties lodged written submissions in relation to the issue raised – the Panel considered that it should not at this stage proceed to terminate any transitional instruments, for two reasons – first, there is a question about the power to terminate transitional instruments as part of the conduct of an annual wage review – there is no express power conferred to terminate a transitional instrument in the course of an annual wage review – second, the proceedings in the All Trades matter has left in doubt the course that should appropriately be taken to the transitional APCSs applicable to apprentices and trainees in the State of Queensland – the Panel considered that the appropriate step to take at this stage was to invite interested parties to make further submissions about whether the termination power in item 3 of Schedule 5 and/or the other powers of termination provided for in the Transitional Act are exercisable in the conduct of an Annual Wage Review – review of existing arrangements for employees with disability – in submissions to previous Annual Wage Reviews, ACOSS raised concerns about the complexity of the system of wages for employees with disability and the appropriateness of the minimum wage rate for those whose productivity is affected by a disability being set at the income test free level for the Disability Support Pension (DSP) – in addition to making a National Minimum Wage Order (NMWO) for all award/agreementfree employees and reviewing modem award minimum wages, the Panel must set special National Minimum Wages (NMWs) for employees with disability – s.12 of the FW Act defines an ’employee with a disability’ as ‘a national system employee who is qualified for a disability support pension as set out in s.94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(l)(e) or 95(1)(c) of that Act’ – in Annual Wage Reviews decisions the Panel has set two special NMWs for employees with disability – as part of the present Review, the Panel has foreshadowed a more detailed review of existing wage arrangements for employees with disability – to that end, the Panel issued a Background Paper and has received written and oral submissions from interested parties – Background Paper raised a series of questions concerning: setting and varying wage rates for employees whose disability does not impact on their productive capacity (special NMW1); setting and varying wage rates for employees whose productive capacity is affected by their disability (special NMW2); and further research – NMW1 – the Australian Government and almost all parties making submissions recognised that setting special NMW1 was required by s.294 of the FW Act – whilst recognising the statutory constraints, ACOSS and the ACTU contended that it was inappropriate to have a separate minimum wage for employees with a disability that did not affect their productive capacity – the Panel considered that as a result of the combined effect of s.294(3)(c) and the relevant definition in s.12, it is necessary for the Panel to provide a minimum wage for all employees with a disability including those whose disability does not affect their productive capacity – the Panel will continue to set special NMW 1 as part of our annual review – NMW2 – employees whose productive capacity is affected by their disability could be considered to be those who are ‘unable to perform the range of duties to the competence level required within the class of work for which they are engaged’ – the Supported Wage System (SWS) was developed in 1994 by the Commonwealth Government, working together with peak employer and union councils and bodies representing people with disability – the SWS is a wage-setting system that allows employers to pay productivity based wages for employees with disability – the SWS forms part of some modem awards and requires that formal agreements be made in relation to each employee – the Australian Government advised the Panel that there were just over 5,700 employees subject to SWS agreements in 2015-16 – in recent years, in setting special NMW2 the Panel has used the SWS as a basis for determining pro-rata wages for employees with disability whose disability affects their productivity, and determined the minimum wages for these employees should be set at the same rate as the weekly incomefree threshold for a single person receiving the DSP – the Background Paper raised a series of questions concerning the basis for, and level of, special NWM2 – the Australian Government, Ai Group, ABI and NSWBC and National Disability Services (NDS) supported maintaining the current method of setting minimum wages for SWS employees at the income-free DSP threshold amount – ACOSS restated its position from previous Reviews, that the minimum wage rate under the SWS for employees with disability was too low – the ACTU submitted that the Commission should exercise caution in dealing with special NMW2 and the SWS, since it came about from extensive research, consultation and consensus – the Panel do not consider that it is appropriate to deal with the detail of the issues concerning special NMW2 at this point – the Panel will further consider this matter, including any developments, in the subsequent consultations to be conducted in 2017 – research – the Panel invited proposals about additional research that should be conducted in relation to wage setting for employees with disability – the Panel will refer the research proposals that have been advanced to the Minimum Wages Research Group and consider any recommendations made in light of the available funding. Annual Wage Review 2016-17 – Preliminary hearing
April 20, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – Commission at first instance declined to grant extension of time for unfair dismissal remedy – lodged one day outside 21 day time limit – appellant submitted representative error – Commission found it is not reasonable for applicant to rely on friend/agent not experienced or involved in law to file application – no acceptable reason for delay – concluded no exceptional circumstances – s.400 FW Act applied – appellant submitted appeal enlivened public interest in its favour regarding rights of represented applicants relying on paid agents – Full Bench rejected submissions – held that Commission at exercised discretion in a manner appellant did not like – not satisfied matter at first instance in a class that warranted guidance from an appellate bench – not persuaded that decision at first instance was attended by an error or principle or significant error of fact – no basis that would justify the grant of permission to appeal in in the public interest or otherwise – permission to appeal refused. Appeal by Bennett against decision and order of Dean DP of 14 March 2017 [[2017] FWC 1412] and [PR590913] Re: McCarrolls of Moss Vale P/L t/a McCarrolls Automotive Group
April 20, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by CFMEU for a right of entry permit for Mr Greenfield – Mr Greenfield is a CFMEU organiser – Mr Greenfield has been issued with an entry permit previously on 9 January 2014 – Commission considered declarations disclosed in application to determine if Mr Greenfield was a fit and proper person to hold permit – declaration disclosed that in 2016 Director of Fair Work Building Industry Inspectorate commenced three court proceedings again Mr Greenfield and others – Commission found no findings of contravention have been made against Mr Greenfields in regards to these matters thus not considered applicable at this time – declaration disclosed Mr Greenfield held entry permit from 9 January 2017 – it was not returned to the Commission upon expiry because Mr Greenfield had lost it – loss of entry permit resulted in failure to return permit within 7 days of expiry – breach of s.517(1)(c) of FW Act civil penalty provision – loss of permit demonstrates lack of diligence which is adverse to a finding that he is a fit and proper person – Commission satisfied Mr Greenfield received appropriate training – has never been convicted on an offence against industrial law of law of Commonwealth State or Territory or foreign country – Mr Greenfield never order to pay a penalty under an Act or industrial law – no entry permit been issued and then revoked or suspected or made subject to conditions – lack of diligence not sufficient to disqualify him from holding a permit – Commission satisfied on overall balance that Mr Greenfield is a fit and proper person to hold an entry permit – permit to be issued. Construction, Forestry, Mining and Energy Union – Construction and General Division
April 20, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – ss.385, 386, 394 Fair Work Act 2009 – applicant left work premises following conversation with colleague about performance – failed to return to work – applicant claimed that respondent’s failure to contact him indicated that his employment was terminated – respondent made jurisdictional objection to application on basis applicant had resigned or abandoned employment – applicant claimed he contacted respondent about conversation – respondent denied this – Commission found applicant did not return to premises or contact respondent following event – Commission found applicant had no reason to believe he was terminated – found colleague did not have power to terminate applicant’s employment – jurisdictional objection upheld – application dismissed. Chand v MTP Marble Granite Sandstone t/a MTP Marble Granite Sandstone
April 20, 2017
CASE PROCEDURES – stay order – ss.595, 606 Fair Work Act 2009 – appeal – application for stay of Decision Commission regarding whether enterprise agreement limits jurisdiction of Commission to arbitrate dispute – in Decision, Commission concluded parties empowered Commission to exercise any method of dispute resolution permitted under enterprise agreement – Commission satisfied appellant raised important questions concerning application and construction of ss.595 and 739 FW Act – satisfied arguable case for appeal with some reasonable prospect of success – further matter involving parties before Asbury DP – appellant submitted no steps to delay matter before Asbury DP would be taken if stay granted – this concession critical in considering balance of convenience in granting stay – stay granted. Appeal by CC P/L t/a Cook Colliery against decision of Spencer C of 13 March 2017 [[2017] FWC 1447] Re: Construction, Forestry, Mining and Energy Union
April 20, 2017
RIGHT OF ENTRY – application for permit – ss.512, 513 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch for issue of right of entry permit for Mr Michael Robinson – whether Mr Robinson a fit and proper person to hold an entry permit – fit and proper person description used as a measure of suitability to perform or carry out a particular function or be given a particular right or privilege [Maritime Union of Australia] – Mr Robinson had held entry permit since October 2008 – in May 2016 Mr Robinson was found to have deliberately contravened s.417 of the FW Act and was fined $6,700 (Bechtel dispute) – three month suspension of permit and conditions imposed – Mr Robinson also found to have been involved in organising unprotected industrial action in September 2016 (Lendlease dispute) – Commission considered permit qualification matters in s.513(1) of the FW Act – considered Bechtel and Lendlease highly relevant to consideration of whether Mr Robinson a fit and proper person to hold an entry permit and relate to his general attitude to complying with industrial law – noted inappropriate conduct in Lendlease dispute happened only three months after Mr Robinson was subject to penalties as a result of Bechtel dispute – drew inference Mr Robinson had not learned the error of his ways – Commission not satisfied Mr Robinson would perform role as a permit holder in a way that respects the obligations of that role – not satisfied any conditions could be imposed in accordance with s.515(1) of FW Act that would alter that assessment – found Mr Robinson was not a fit and proper person to hold an entry permit – application refused. Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch
April 20, 2017
TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – applicant received termination letter from his father on behalf of the respondent on 19 August 2016 – respondent alleged applicant transferred $5000 from the company’s bank account to his own, removed a computer from the premises and removed $990 cash from a company delivery vehicle – respondent alleged all actions were done without authorisation – the applicant was not notified of or asked about any of the three alleged actions that led to his termination before he received the letter – applicant did not deny he transferred money from company’s bank account to a business credit card – applicant submitted the respondent was aware the account was used almost exclusively for expenses incurred in relation to the respondent’s business – applicant also did not deny removing the computer – respondent subsequently withdrew allegation regarding $990 cash – Pinawin v Domingo considered in determining whether employer had complied with Small Business Code for dismissal – Commission considered respondent did not carry out a reasonable investigation into the applicant’s alleged misconduct before terminating his employment – determined dismissal not consistent with the Code – Commission found none of the three instances of alleged misconduct in the applicant’s termination letter constituted a valid reason for dismissal – respondent conceded applicant was not notified of the reason for dismissal until it took effect – found dismissal was harsh, unjust and unreasonable – procedural fairness not afforded to applicant – remedy of reinstatement not appropriate applicant awarded compensation – compensation calculated using Sprigg formula – Commission determined applicant would have continued to be employed for four weeks – no remuneration earned by applicant in first four weeks after dismissal – nothing deducted for contingencies – ordered compensation of $8,384.60 less taxation. Pomering v Ronpom P/L t/a Millers Turf Farm
April 20, 2017
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158(1) Fair Work (Registered Organisations) Act 2009 – proposed changes sought by the Australian Maritime Officers’ Union (AMOU) – eligibility for membership to include employers of any successors or assignees of the businesses listed in Rule 6, Part 3(c) including but not limited to Port Authorities – objection lodged by Australian Municipal, Administrative, Clerical and Services Union (ASU) – parties entered into negotiations and an agreement was reached – Memorandum of Understanding executed – undertaking by AMOU not to seek to enrol persons eligible for ASU membership who are employed by the Gladstone Port Corporation other than those persons who principally perform their duties in relation to Port Alma (Rockhampton) and/or Port of Bundaberg, further not to seek to enrol persons who are currently members of the ASU – Commission satisfied of requirements of the RO Act and Regulations – Commission consents to changes to eligibility rules sought by association – changes to rules to take effect from date of decision. Australian Maritime Officers’ Union, The
