ANNUAL WAGE REVIEW – 2017/18 financial year – s.285 Fair Work Act 2009 – Full Bench – the FW Act requires Commission’s Expert Panel (the Panel) to conduct and complete review of national minimum wage (NMW) and minimum wages in modern awards in each financial year – Decision will affect an estimated 22.7% of all employees who have their pay set by an award, 1.9 % of employees that are paid at the adult NMW rate, significant number of employees paid at junior or apprentice/trainee rates based on the NMW rate, and employees paid close to NMW rate and modern award rates and whose pay is set by collective agreement linked to outcome of review – in setting the NMW rate the Panel must take into account the objects of the FW Act and minimum wages objective in s.284 including (a) performance and competitiveness of national economy, including productivity, business competitiveness and viability, inflation and employment (c) relative living standards and the needs of the low paid (d) the principle of equal remuneration for work of equal or comparable value, and (e) providing comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability – Panel concluded that ‘economic indicators now point more unequivocally to a healthy national economy and labour market’ – Panel found that labour market had improved significantly with strong employment growth – economy continues to grow and overall business conditions at highest levels since global financial crisis – inflation and wages growth remain low – economic forecasts presented in 2018-19 Budget, RBA and International Monetary Fund all point to improving economic conditions – Panel also required to take into account employment impacts of NMW and modern award minimum wages and any proposed increases to these rates – remained of the view that modest and regular minimum wage increases do not result in disemployment effects or inhibit workforce participation – noted that increase of NMW over the last decade has not resulted in improvements to actual or relative living standards for many categories of NMW and award-reliant households due to changes in tax-transfer system – Panel also required to take into account need to encourage collective bargaining – accepted there was decline in current enterprise agreement making but not persuaded that gap between modern award minimum wages and bargained wages has reached level where it is encouraging or discouraging collective bargaining – considered that gender pay gap was relevant to review and that an increase in NMW and modern awards minimum wages would assist in reducing gender pay gap – Panel concluded that prevailing economic circumstances provided opportunity to improve relative living standards of the low paid and to enable them to better meet their needs – acknowledged that increases would not lift all NMW and award-reliant employees out of poverty but to grant an increase proposed by ACCER and the ACTU was likely to run a substantial risk of adverse employment effects, which would impact on groups already marginalised in the labour market – Panel determined it was appropriate to award increase to NMW of 3.5% – NMW will be $719.20 per week or $18.93 per hour – this is equivalent to an increase of $24.30 per week to weekly rate or 64 cents per hour to hourly rate – Panel also considered it important to adjust modern award minimum wages by 3.5% – weekly wages in NMW order and modern awards will be rounded to nearest 10 cents – determinations and order giving effect to Decision will come into operation on 1 July 2018. Annual Wage Review 2017-18
June 8, 2018
TERMINATION OF EMPLOYMENT – valid reason – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – dismissed approximately two weeks into four week notice period occasioned by her resignation for misconduct – Commission found that applicant’s conduct was at lower end of scale in terms of valid reason for dismissal but that in small business when client relations is critical, this could constitute valid reason – held that respondent did not afford applicant procedural fairness throughout process of dismissal – considered that decision to summarily dismiss applicant was disproportionate response to applicant’s conduct – dismissal harsh, unjust and unreasonable and therefore unfair – reinstatement not appropriate – ordered compensation of $580.88 less applicable taxation. Williams v Southern Cross Veterinary Clinic
June 8, 2018
ENTERPRISE AGREEMENTS – notice of representational rights – ss.174, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance, Commission dismissed both applications for approval of enterprise agreement – appellant had substituted ‘leader’ for ’employer’ in the Notice of Employee Representational Rights (NERR) – found that NERR differed from prescribed form – did not comply with s.174 of FW Act – appellant submitted that approval of agreements would not render it inconsistent with Peabody – that the use of the word ‘leader’ enhanced the statutory objective of the NERR – that any departure from the prescribed form was trivial – appeal raised issues of general importance in relation to applications for approval of enterprise agreements – permission to appeal granted – Full Bench noted that a minor wording change which does not modify the meaning or effect of the NERR could be capable of being excused by application of de minimis principle – found that use of ‘leader’ in the NERR altered its effect by restricting the avenues by which any question to the appellant might be communicated or directed – modification could not be excused as trivial – Full Bench upheld decision at first instance – appeal dismissed. Appeal by ALDI Foods P/L against decision of Bull DP of 22 December 2017 [2017] FWC 6956 and [2017] FWC 6958 Re: Shop, Distributive and Allied Employees Association and Ors
June 8, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant dismissed for serious misconduct – applicant took various documents from her place of work and deleted computer files following a proposal to amend her terms of employment – Commission did not accept the applicant’s reasons for doing this – also took into account deed of confidentiality signed by the applicant – found there was a valid reason to dismiss the applicant – dismissal was not unfair – application dismissed. Obuchowski v RNTT P/L ta Jobs Statewide Employment Solutions
June 8, 2018
GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – application to deal with contravention of general protections involving dismissal – Commission found in First Decision [[2018] FWC 2777] that employment relationship between applicant and respondent came to end on 19 December 2017 – application lodged on 9 March 2018, 59 days late – Commission satisfied that applicant had reasonable grounds for believing she would remained employed by respondent until 19 February 2018 and that respondent’s conduct contributed to her belief – applicant acted reasonably and diligently to seek legal advice to file application within 21 days of 19 February 2018 and application was in fact filed within that timeframe – Commission satisfied there were exceptional circumstances – application for extension of time granted – jurisdictional objection dismissed – Order [PR607676] issued to extend lodgement time to 9 March 2018. Wild v Escala Partners Ltd t/a Escala Partners; Matthew Zanders
June 8, 2018
TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent raised jurisdictional objection that applicant not protected from unfair dismissal – Commission found applicant’s earnings over high income threshold at time of dismissal – whether covered by modern award – applicant argued employer estopped from raising jurisdictional objection due to previous representations stating applicant covered by award – Commission found no estoppel – Commission considered applicant’s duties and coverage of award – found that principal duties exceeded those of an employee covered by the award – found applicant not a person protected from unfair dismissal – application dismissed. Caruana v Shace Toop Trading Trust t/a Toop & Toop Real Estate
June 8, 2018
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – jurisdictional issue as to whether applicant was ‘dismissed’ as a term understood in the context of ss.386(1)(b) of the Fair Work Act – applicant resigned from employment at CSIRO and lodged application for unfair dismissal on same day – applicant removed from executive position under direction of Board, though remained an employee of CSIRO in an alternative position – applicant insisted reinstatement of his previous role to his employer – employer refused reinstatement but didn’t force resignation – Commission found applicant resigned of own accord – applicant not unfairly dismissed – application dismissed. Stringfellow v Commonwealth Scientific and Industrial Research Organisation t/a CSIRO
June 8, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned introduction of an Alcohol and Drugs Policy (ADP) by employer – method of testing – examination of urine analysis or oral fluid testing – detection times of various illicit drugs – privacy issues in providing urine samples – is proposed urine analysis unjust or unreasonable – parties unable to resolve outstanding matters – can employer implement urine testing in certain specific circumstances – comparison of other companies drug and alcohol policies – urine testing greater deterrence effect than oral testing but more invasive – Commission found drug and alcohol detection a matter for each employer and its employees – Commission would only interfere in management decisions which result in unjust or unreasonable outcomes for employees – Commission determined the ADP was not unjust or unreasonable. Arnott’s Biscuits Ltd t/a Arnott’s v United Voice and Ors
