MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – the Commission must conduct a review of all modern awards every four years (the Review) – the modern awards objective in s.134(1) of the FW Act is central to the Review – the modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards (NES) provide a fair and relevant minimum safety net of terms and conditions’ – as part of the Review, various employer bodies have made application to vary penalty rate provisions in a number of modern awards in the Hospitality and Retail sector – these applications have been heard together – modern awards subject to claims are: the Fast Food Industry Award 2010 (the Fast Food Award); the General Retail Industry Award 2010 (the Retail Award); the Hospitality Industry (General) Award 2010 (the Hospitality Award); the Pharmacy Industry Award 2010 (the Pharmacy Award); the Registered and Licensed Clubs Award 2010 (the Clubs Award); and the Restaurant Industry Award 2010 (the Restaurant Award), (collectively the Hospitality and Retail awards) – in a Statement issued 17 December 2014, further proposals to alter penalty rates in other modern awards will be dealt with on an award-by-award basis in the award stage of the Review [[2014] FWC 9175] – the conduct of these proceedings has been a substantial undertaking – Full Bench heard evidence and submissions over 39 days of hearing in 2015 and 2016 – evidence was given by 143 lay and expert witnesses, of whom 128 were required for cross-examination – over 5,900 submissions were received from the principal parties, State and Territory Governments, Church based organisations, political entities and individual employees and employers – historically, industrial tribunals have expressed the rationale for penalty rates in terms of both the need to compensate employees for working outside ‘normal hours’ (the compensatory element) and to deter employers from scheduling work outside ‘normal’ hours (the deterrence element) – the Full Bench concluded that deterrence was no longer a relevant consideration in the setting of weekend and public holiday penalty rates – the Full Bench accepted that the imposition of a penalty rate may have the effect of deterring employers from scheduling work at specified times or on certain days, but that is a consequence of the imposition of an additional payment for working at such times or on such days, it is not the objective of those additional payments – compensating employees for the disutility associated with working on weekends and public holidays is a primary consideration in the setting of weekend and public holiday penalty rates – s.134(1)(da)(iii) requires that the Commission take into account the ‘need to provide additional remuneration’ for ’employees working on weekends or public holidays’ – the assessment of ‘the need to provide additional remuneration’ to employees working in the circumstances identified required consideration of a range of matters, including: the impact of working at such times or on such days on the 4 employees concerned (which includes an assessment of the impact of such work on employee health and work-life balance, taking into account the preferences of the employees for working at those times); the terms of the relevant modern award, in particular whether it already compensates employees for working at such times or on such days; and the extent to which working at such times or on such days is a feature of the industry regulated by the particular modern award – Saturday penalty rates – generally speaking, no changes were sought in relation to Saturday penalty rates – the Full Bench reviewed the Saturday penalty rates in the Fast Food, Hospitality, Restaurant and Retail Awards and (subject to the observations about the Retail Award) were satisfied that the existing Saturday penalty rates achieved the modern awards objective – the review of Saturday penalty rates in the Clubs and Pharmacy Awards is to be the subject of further proceedings – Sunday penalty rates – the Full Bench decided that the existing Sunday penalty rates in the Hospitality, Fast Food, Retail and Pharmacy Awards did not achieve the modern awards objective – except in the Fast Food Award the Full Bench do not propose to reduce the Sunday penalty rates to the same level as the Saturday penalty rates – for many workers Sunday work has a higher level of disutility than Saturday work, though the extent of the disutility is much less than in times past – implicit in the claims advanced by most of the employer interests that they accept the proposition that the disutility associated with Sunday work is higher than the disutility associated with Saturday work – if this was not the case then they would have proposed that the penalty rates for Sunday and Saturday work be the same, but they did not – the reductions in Sunday penalty rates as determined by the Full Bench are set out in paragraph [55] of the decision – on the material before them, the Full Bench was not satisfied that the variations proposed to the Clubs and Restaurant Awards were necessary to ensure that these awards achieve the modern awards objective – the Full Bench held that the employer organisations concerned had not established a merit case sufficient to warrant the granting of their claims – Public holiday penalty rates – the Full Bench noted that the disutility of working on public holidays was greater than the disutility of working on Sundays (which in turn was greater than Saturday work) – the Full Bench decided to reduce the public holiday penalty rates in the Hospitality and Retail awards (except for the Clubs Award) – the reductions in public holiday penalty rates as determined by the Full Bench are set out in paragraph [63] of the decision – in each of the Sunday and public holiday penalty rates the Full Bench adopted what the Productivity Commission Inquiry Report: Workplace Relations Framework described as the ‘default approach’ to setting the appropriate rate for casual employees – under this approach the rate of pay for casual employees is always 25 percentage points above the rate of pay for non-casual employees: if the Sunday penalty rate for full-time and part-time employees is 150 per cent, the Sunday rate for casuals will be 150 + 25 = 175 per cent – the decision of the Full Bench to reduce Sunday and public holiday penalty rates in these awards was based on conclusions with respect to the common evidence and the assessment of the evidence in relation to each of these particular awards – important to appreciate that the conclusions reached by the Full Bench in relation to the weekend and public holiday penalty rates in the Hospitality and Retail awards was largely based on the circumstances relating to these particular awards – the Hospitality and Retail sectors have a number of characteristics which distinguish them from other industries – the Full Bench concluded that appropriate transitional arrangements were necessary to mitigate the hardship caused to employees whose Sunday penalty rates will be reduced – it is unclear whether take home pay orders are an available option – the Full Bench propose to seek submissions from interested parties as to these issues – interested parties are to file written submissions in relation to the transitional arrangements to apply to the reduction in Sunday penalty rates by 4.00 pm Friday, 24 March 2017, with reply submissions to be filed by 4.00 pm on Friday, 7 April 2017 – the matter will be listed for hearing in early May 2017 – the changes to public holiday penalty rates will take effect on 1 July 2017. 4 yearly review of modern awards – Penalty Rates
March 6, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – update on review of National Training Wage schedule (NTW schedule) following Statement issued on 6 July 2016 (July Statement) [[2016] FWC 4495] – NTW schedule re-drafted in plain language and published that day – in July Statement, Full Bench expressed provisional view that NTW schedules should be removed from all modern awards except Miscellaneous Award 2010 and to standardise NTW schedule – NFF and Ai Group did not oppose to removal of NTW schedules from modern awards and retention of NTW schedule by reference – AMWU and CFMEU proposed NTW schedule should be relevant and appropriate to work covered by particular modern award – Full Bench was of provisional view that where parties have requested NTW schedule be tailored to particular modern award, this should occur – for all other modern awards apart from Miscellaneous Award, Full Bench of provisional view that NTW schedule be removed once revised NTW schedule to be inserted into Miscellaneous Award finalised – no change made to modern awards that do not currently contain NTW schedule – directed that submissions in relation to plain language re-draft of NTW schedule be filed by no later than 4.00 pm Friday, 17 March 2017; submissions on form of NTW schedule to be inserted in awards be filed by no later than 4.00 pm Friday, 17 March 2017; and submissions in reply be filed no later than 4.00 pm Thursday, 30 March 2017. 4 yearly review of modern awards – National Training Wage schedule
March 6, 2017
MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – Decision of Full Bench minority – on 23 March 2016 the President directed that a Full Bench hear and determine the substantive issues raised during the 4 yearly review of modern awards in respect of the Ports, Harbours and Enclosed Water Vessels Award 2010 (the PHEWV Award) and the Seagoing Industry Award 2010 (the Seagoing Award) – on 26 April 2016 the President issued directions that the Full Bench also hear and finalise the substantive issues raised in correspondence from Sea Swift P/L (Sea Swift) on 15 April 2016 in relation to the PHEWV Award, the Seagoing Award and the Marine Towage Award 2010 (the Towage Award) – in reviewing each award the Commission must have regard to the modern awards objective in s.134 of the Act – the modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions’ – the issues the Full Bench has been directed to determine concern: coverage issues in the PHEWV Award, the Seagoing Award and the Towage Award; the Small Ship classification under the Seagoing Award; casual classification under the Seagoing Award; and Electrician/Electro Technical Officer classifications – coverage issues – Sea Swift made this application arising out of a Full Bench decision in MUA and others v Sea Swift P/L [[2016] FWCFB 651] – Sea Swift submitted that the decision revealed a significant anomaly in the coverage provisions of the maritime awards – Sea Swift conducts various types of maritime activities under a single corporate umbrella, if the activities were carried out separately, they would be covered by the awards applicable to each type of operation – because the predominant part of the business has been found by the Full Bench to be covered by the Seagoing Award, that award applies to all of its operations – Sea Swift submitted that this outcome was not intended by the Full Bench in the award modernisation process and it places Sea Swift at a competitive disadvantage in conducting the operations other than seagoing operations – other employers support these variations – they submitted that where an employer conducts an operation that falls within a particular award, that award should apply to the employees in that operation regardless of whether other awards may apply to different parts of the employer’s operations – the maritime unions opposed the variations – minority Full Bench held it was appropriate that an employer that conducts various types of maritime activities be covered by the award that is relevant to each of those maritime activities – Small Ships schedule – Sea Swift and The Australian Institute of Marine and Power Engineers (AIMPE) sought variations to the classification structure of the Seagoing Award to provide for a different schedule of wage rates for vessels below a certain level of tonnage – currently the lowest schedule is for ships of less than 19,000 tonnes – Sea Swift submitted that prior to the introduction of modern awards, a previous award, known as the Self-propelled Barge and Small Ships Industry Award (Small Ships Award) covered a company that operated small vessels – AIMPE submitted that the termination of the Small Ships Award and the resultant lowest category of vessels of up to 19,000 tonnes have resulted in an anomaly for vessels which are much smaller – other employers support the inclusion of a schedule – The Maritime Union of Australia (MUA) and the Australian Maritime Officers’ Union (AMOU) opposed the variations – minority Full Bench held that the variations were necessary to achieve the modern awards objective – casual classification – Sea Swift sought the insertion of a classification for casual employees in addition to the relief classification rate in the Seagoing Award – minority Full Bench of the opinion a case for the amendments was not made out – held the intentions of the company could be fulfilled under the current award provisions – Electrician/Electro Technical Officer classifications – minority Full Bench held that that the new classifications, as agreed between the parties, were necessary to achieve the modern awards objective – Decision of Full Bench majority – the majority Full Bench agreed with the conclusions reached by the minority Full Bench in relation to the coverage issues in the PHEWV Award, the Seagoing Award and the Towage Award; casual classification under the Seagoing Award; and Electrician/Electro Technical Officer classifications – Small Ships schedule – currently employees engaged on vessels in the proposed Small Ships schedule would be classified and paid in accordance with clause 13.1(a) of the Seagoing Award – Sea Swift’s proposed rates were derived from the rates in the PHEWV Award as they were at the date of the application – AIMPE did not propose specific rates but sought rates based on the Selfpropelled Barges and Small Ships Award 2001 – majority Full Bench held that Sea Swift was proposing that employees’ rates of pay be significantly reduced – Sea Swift submitted that if there were any employees affected by the change then transitional arrangements could be put in place – clear the Small Ships Award and the Seagoing Award always had the potential for overlapping coverage – what is being sought in this application is a significant reduction in the minimum wages paid to employees who are engaged on vessels of less than 5000 tonnes – majority Full Bench found insufficient evidence before the Commission to support the proposition that qualifications are different for a vessel below 5000 dead tonne weight and vessels over 5000 dead tonne weight but below 19,000 tonnes – unable to conclude that there were work value considerations which mean that the rates of pay for persons who work on vessels of less than 5000 tonnes should be reduced – majority Full Bench dismissed the applications by Sea Swift and AIMPE to include a Small Ships schedule in the Seagoing Award. 4 yearly review of modern awards – Ports, Harbours and Enclosed Water Vessels Award 2010 and Ors
March 6, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch for official, Mr Roberts – concept of ‘fit and proper person’ considered [MUA] – cases involving Mr Roberts were considered – these cases involved penalties imposed on Mr Roberts and the CFMEU and entry right suspensions which all related to a single incident which occurred on the Lend Lease Adelaide Oval redevelopment project in October 2013 – CFMEU submitted that this was an isolated incident which was out of character for Mr Roberts and that it should not preclude him being found to be a fit and proper person to hold an entry permit – in these cases it was found that Part-3-4 rights were misused due to no notice of entry being provided, hindering employers by distracting them from their planned activities and entry utilised for purpose of asserting a demand in relation to a permanent delegate being a purpose for which the right of entry does not extend – Mr Roberts was found to have behaved in an aggressive and threatening manner during this incident – Mr Roberts submitted that he understood the obligations as a permit holder having been a union official for over 16 years and only having his right of entry permit suspended for four months following his involvement in the October 2013 incident – Mr Roberts further submitted should he again take action which was inconsistent with the right of entry obligations, the consequences would be far greater and confirmed he would refuse to undertake actions of that nature – taking this advice into account, Commission satisfied that Mr Roberts is a fit and proper person to hold an entry permit – had the Commission simply considered the ‘normal’ union circumstances to assess Mr Roberts as a fit and proper person, the same conclusion may have not been reached because of the seriousness of his involvement in the Adelaide Oval Redevelopment incident and the likelihood of similar strategies on the part of the CFMEU in the future – conclusion in this regard was supported by Mr Roberts’ behaviour, prior to October 2013, but, more particularly, after that date which confirm his normal conduct – considered the extent to which, pursuant to s.515, conditions on entry permit should be imposed and determined it was not necessary in Mr Roberts’ circumstances – Mr Roberts has undergone the relevant training and he has recognised the obligations relevant to the responsible application of a right of entry permit – Commission held application for permit granted – permit to be issued. Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
March 6, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – resolution of dispute in accordance with the dispute resolution procedure of the EnergyAustralia Yallourn Enterprise Agreement 2013 ‘the agreement’ – dispute concerning warning issued to Mr Aitken pursuant to clause 29 (discipline procedure) of the agreement – meaning of status quo in clause 28 (dispute resolution process) – CFMEU submitted the status quo is the ‘circumstances existing prior to the change’ that is, the circumstances where Mr Aitkin had not received the warning – CFMEU submitted the practical effect of the subclause can only be that the operation of the warning be suspended pending the earlier of the resolution of the dispute – respondent submitted the application of the status quo can only pause the implementation of change that has been announced but has not yet taken effect (i.e. is ‘proposed’) – submitted the warning itself is the subject of the dispute and there is no basis to reverse the issuance of the warning while the dispute remains on foot – respondent submitted in the alternative, if the application of the status quo means that the warning is treated as not having been issued while the dispute remains on foot, the limitation on the ‘effective for’ period in clause 29 of the agreement could not be said to commence running until the warning is confirmed – Commission agreed with the respondent’s alternative submission – Commission satisfied there was no uncertainty or ambiguity in the meaning of the status quo in respect to the dispute – satisfied that during the operation of the disputes resolution process pursuant to clause 28 of the agreement the respondent cannot rely upon the first written warning issued to Mr Aitken – agreement provides for two types of disputes – Category 1 matters ‘go to the application or interpretation of this agreement or with matters arising under the national employment standards’ – Category 2 matters are ‘all other matters pertaining to the employment relationship…’ – CFMEU submitted the dispute is about the issuing of the warning pursuant to clause 29 of the agreement – respondent submitted the mere fact that they sought to follow the disciplinary procedure in clause 29 is not sufficient to bring the dispute within Category 1 – respondent submitted that if merely touching upon the subject matter of a clause is sufficient to bring a dispute within Category 1 then very few disputes would be in Category 2 and this could not have been the intention of the parties – Commission found that given the warning issued specifically refers to clause 29, it is difficult to see how a dispute over the issuing of a ‘first written warning’ to Mr Aitken is not a matter which goes to the application or interpretation of the Agreement – Commission found the dispute is not peripheral to, or merely touching on a matter in clause 29 – CFMEU directed to advise within seven days of the decision if they wish for the matter to proceed to arbitration. Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn P/L
March 6, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Aurizon Train Crew and Transport Operations Enterprise Agreement 2015 – employees affected by dispute are Transport Operators working for Aurizon (Transport Operators were previously known as ‘Shunters’ and are still referred to as such), at the rail depot at Pring, on the outskirts of Bowen in North Queensland – these employees do not work outside of the rail yard and are covered by the Transport Operations Stream clauses of the Agreement – applicant claimed that respondent’s use of the Agreement provisions to have additional duties undertaken, for no additional payment, was not agreed during the recent negotiations and was not permitted under the Agreement – claim that these employees are entitled to the Higher Grade Allowance (in clause 35) for time undertaking these new duties – Interim Decision was released in this matter following a hearing – respondent argued the combination of number of clauses provided basis for duties to be undertaken with no additional payment – stated the classification tasks and clauses of the Agreement allowed them to direct employees to perform those duties – applicant stated there was no clear indication from negotiations that application of new Agreement was going to be used in this way, to assign these additional duties, within the current pay range – no submissions were filed on a work value claim – applicant sought for affected employees to be paid at the higher duties rate of $6.4428 per hour – submitted that the disagreement was that Shunters should not undertake training to perform the start-up, relinking and shutting down of a locomotive because that training was not required to perform the role for which they were employed – respondent submitted that the intention in this respect, was to ensure employees were trained, as well as competent, to perform any new tasks which they might be required to perform as part of their employment – further submitted that descriptions of tasks and functions were not exclusive – lists of indicative tasks and functions were largely taken from previous agreement – Commission concluded that additional competencies did not fall within the scope of the role for which employees were employed – they should not be compensated for the period of time that they carried out these tasks as not all of the tasks commensurate with the High Grade allowance – employees should not be compensated for the period of time they performed the tasks based on the work value of the tasks as this was not pursued by the applicant – employees should not be back paid for the period of time that they had been carrying out the tasks as this was also not sought by the applicant – the claimed remuneration of the Higher Grade allowance was not applicable to the subset of duties sought to be undertaken – the extra duties do not fall within their classification and therefore the direction was not in accordance with the applicable Agreement provisions. Australian Rail, Tram and Bus Industry Union v Aurizon Operations Ltd
March 6, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as senior network engineer from December 2015 until dismissal on 10 October 2016 – applicant required to work in the Melbourne office at normal office hours when not at country sites – respondent submitted applicant repeatedly failed to attend the office at normal office hours except when working at country sites and complete time sheets on time and fully – applicant conceded he was rarely in the office despite clear instruction – applicant further failed to report he had lost his licence for a six month period to his direct manager – applicant was in receipt of car allowance during period he was legally unable to drive – respondent prepared final warning notice – applicant signed to acknowledge receipt of notice on 6 October 2016 – Commission noted final warning letter was poorly drafted and confusing – satisfied its purpose was to put applicant on notice and failure to attend the office or complete timesheets could lead to dismissal – applicant dismissed by phone call on 10 October 2016 – applicant not given adequate opportunity to respond in phone call – Commission noted this factor usually stands in favour of finding a dismissal was unfair – found this was an unusual case – not satisfied in this case this factor was sufficient to make the termination unfair based on a number of factors – applicant’s manager based in Bendigo and applicant based in Melbourne – accepted telephone was most effective way to communicate – Commission satisfied attendance at the office during normal office hours when not required in the country and timely completion of time sheets were reasonable instructions – accepted applicant repeatedly defied clear instructions – applicant received final warning only two working days prior to phone call – found dismissal was fair – dismissal was not a disproportionate response to the defiance of reasonable management directions – application dismissed. Nourfadi v Viatek Technology P/L
March 6, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent argued that applicant was either not dismissed at the initiative of the respondent, or was dismissed in accordance with the small business fair dismissal code – applicant had heated meeting with manager in which applicant was aggressive and abusive and told the respondent that he was resigning before leaving – applicant returned to work the next working and maintained that he had not resigned – Commission held that where an employee unambiguously communicates their intention to resign, the employer is not required to enquire further [Ngo] – held that the applicant, by his statements, did unambiguously communicate their intention to resign – application dismissed. Tan v Vital Packaging
