Updates from the Fair Work Commission - AHRI Northern Territory State Conference Vice President Catanzariti 13 June 2019 Darwin
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Updates from the
Fair Work Commission
AHRI Northern Territory State Conference
Vice President Catanzariti
13 June 2019
Darwin
Workload 2017–18
Source: Fair Work Commission Annual Report 2017–18 at p.19
© Commonwealth of Australia 2019
Workload by matter type
Source: Fair Work Commission Annual Report 2017–18, Table 1
© Commonwealth of Australia 2019
Regional allocation
Data recorded at 15 May 2019
Termination of employment
Number of matters 2017–18
Unfair dismissal applications account for over
40% of matters lodged at the Commission
Unfair dismissal applications Other applications
Source: Fair Work Commission Annual Report 2017–18, p. 19
© Commonwealth of Australia 2019
Criteria for considering harshness?
Was employee Was there an
Was there a
notified of opportunity to
valid reason?
reason? respond?
Any warnings –
Refusal of
unsatisfactory
support person
conduct?
Human Any other
Size of
resources relevant
business
experience matters
© Commonwealth of Australia 2019
Objections to an application
Application
Applicant not Applicant not
lodged out of
an employee dismissed
time
Minimum
Genuine
employment
redundancy
period
Small Business
High income
Fair Dismissal
threshold
Code
© Commonwealth of Australia 2019
Range of compensation at conciliation
Source: Fair Work Commission Annual Report 2017–18, Table D2
© Commonwealth of Australia 2019
Unfair dismissal user experience research
Anger-based reactions
Frustration, annoyance, offended, outrage, victimised, bitter,
vengeful, misjudged/pre-judged.
Fear-based reactions
Fearful, threatened, suspicious, pressured, anxious,
apprehensive, nervous, stressed, self-doubt, uncertain.
Loss-based reactions.
Disappointed, despairing, sad, empty, hurt, victimised,
abused, distrusted, judged, unsupported, overwhelmed,
exhausted.
Surprise-based reactions
Shock, disbelief, bewilderment, confusion.Workplace Advice Service • Free legal assistance program for small business employers and self represented individuals • Advice on unfair dismissal, general protections and workplace bullying cases • Lawyers work at law firms and other legal organisations, they are completely independent of the Commission • Available in most States around the country
Thursday, 9 May 2019
Jo West
Design
jowest@generalthings.com.au Most important information first
Short sentences
12-point font
Lot’s of white space
Dear Jo West
We have received an unfair dismissal application
Case name Zhang v General Things Pty Ltd
Headings and sub- Case number UD2019-123
headings guide the
reader On 6 May 2019, Lisa Zhang sent us an application saying they were unfairly Active voice
dismissed by General Things Pty Ltd.
We have attached a copy of the application.
The application was lodged late
The time limit for lodging an unfair dismissal application is 21 days after the
dismissal took effect. Lisa Zhang did not apply within the time limit.
The time limit can be extended if a Commission Member thinks there are exceptional
circumstances.
Use of personal
Before we refer the case to a Commission Member, you and Lisa Zhang have an pronouns makes it clear
opportunity to settle the case. who does what
What happens next?
We have arranged a time for you and Lisa Zhang to discuss the case. This is called
conciliation.
The conciliation will be held on Thursday, 23 May 2019. A notice of listing is
attached.
Plain language
explanation of About conciliation
complex terms
Conciliation is an informal, flexible and confidential approach to resolving cases. It is
a voluntary process. You don’t have to take part but most people do. 4 out of 5 casesSmall Business Reference Group • Contact point between the Commission and small business and those who represent them • Will provide ongoing feedback on processes and procedures, including information resources
Anti-bullying
Synopsis
• The AB jurisdiction involves a unique combination of
parties, context, issues, focus and remedy – to be
determined by a quasi judicial tribunal
• Applications by individuals involving other individuals
still working together and likely emotionally charged
• This necessitated a unique case management model
involving:
• Early and direct engagement with parties
• Triage and streaming of matters
• Preserve the relationships
• Handle appropriate to the circumstances: ADR where
appropriate - inquisitorial when determining
15Synopsis (cont.) • 700 to 800 applications a year • Relatively high settlement and withdrawal rates • Limited orders – not necessarily typical of applications filed or indicative of the impact of the jurisdiction • Developing case law including on the meaning of bullying and concept of being “at work” • Continual monitoring and review of the case management model and practice 16
Key elements of the anti-bullying
jurisdiction
• Applications from workers
• Applications rather than complaints – “applicant
reasonably believes” – he or she has been bullied
• Broad definition of ‘worker’
• No time limit
• Definition of bullying behaviour involves:
• Bullying behaviour must occur whilst ‘at work’
• Bullying behaviour can be engaged in by an ‘individual’
or ‘group of individuals’ (need not be workers)
• Bullying behaviour must be repeated, unreasonable
behaviour that creates a risk to health and safety and
must not be reasonable management action taken in
a reasonable manner
17The FWC case management model
• Application lodged – checked with applicant (fee waivers
determined)
• Service upon “employers” and then individuals named after contact
has been made
• Responses sought
• “Triage” and information gathering
• Confirm information on application and desire to proceed
• Identify obvious jurisdictional problems
• Information on process to all parties
• Gain information for a preliminary administrative report made –
provided to Panel Head who will asses and allocate
18The FWC case management model (cont.)
• Panel Head to initially decide to how and when to be dealt with:
• Mediation (only where appropriate - by specifically trained
mediators or staff) not promoting $ settlements
• Assigned to Member to hear as they see fit:
• Preliminary conference (preferable in most cases)
• Conciliation
• Urgent hearing for interim or other orders
• Jurisdictional determination
• Merit and remedy hearing (appropriate to the circumstances)
• Panel Head may consult parties, manage initial engagements and
potentially determine jurisdictional issues
• Orders – subject to enforcement through the Federal Court
• Appeals – normal rules (by leave)
• Reference to WHS authorities – alternative or additional option
19Nature of applications for an order to stop bullying • 3214 applications for an order to stop bullying • All matters started to be dealt with in 14 day period • Working relationship of parties – predominately Employees v Manager • Majority of workers from businesses with more than 50 staff • Industries – health and welfare services, clerical, educational services, retail, hospitality • Increasingly, applicants not actively at work (on leave or workers compensation) • Relatively low levels of legal representation 20 Commonwealth of Australia — Fair Work Commission
At work
• Full Bench - Bowker, Coombe and Zwarts v DP World and
The Maritime Union of Australia [2014] FWCFB 9227
• Issue – whether alleged unreasonable conduct occurred whilst at
work; use of social media as a part of alleged conduct.
• Decision - The Full Bench said:
• Requires temporal connection between the conduct and the worker
being at work
• “at work” means performing work or engaging in employer-authorised
or permitted work activities (such as being on a meal break or
accessing social media while performing work)
• being “at work” is not limited to the confines of a physical workplace
• individuals who engage in unreasonable behaviour towards a worker
need not be “at work” at the time they engage in that behaviour
• Note – matter remitted to single Member to hear evidence and
each case determined on its own merits.
21Constitutionally covered business - S.789FD
• Applies to constitutionally-covered business:
•A person conducts a business or undertaking (PCBU) within the
meaning of the WHS Act 2011 and is either:
• A constitutional corporation (trading or financial);
•The Commonwealth or a Commonwealth authority;
•A body corporate incorporated in a Territory;
•The business of undertaking is conducted principally in a Territory or a
Commonwealth place
•“Constitutional corporation” (trading or financial) assessed having regard to
the need for a corporate status (Pty Ltd, Ltd, Inc) and the nature and degree of
their activities
Pasalskyj [2015] FWC 7309
McInnes [2014] FWC 1395
Dr Kwee Lim v Trade & Investment Queensland [2016] FWCFB 6615
•Jurisdiction relies upon the corporations power (for non C/W bodies)
Amzalak [2016] FWC 6590; A.B. [2014] FWC 6723
22Meaning of Bullying Conduct – s.789FD(1)
• Ms SB [2014] FWC 2104 - Amie Mac v Bank of Queensland Ltd et al –
[2015] FWC 774
• Persistent unreasonable behaviour but might refer to a range of behaviours over
time.
• More than one occurrence, not necessarily the same specific behaviour.
• “Unreasonable behaviour” should be considered to be behaviour that a reasonable
person, having regard to the circumstances, may consider to be unreasonable. That is,
the assessment of the behaviour is an objective test having regard to all the
relevant circumstances applying at the time.
• Must be a causal link between the behaviour and the risk to health and safety.
The behaviour does not have to be the only cause of the risk, provided that it
was a substantial cause of the risk viewed in a common sense and practical
way.
• A risk to health and safety means the possibility of danger to health and safety, and is
not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is
exposure to the chance of injury or loss. In the sense used in this provision, the risk
must also be real and not simply conceptual.
23Reasonable management action taken in a
reasonable manner – s.789FD(2)
• SB [2014] FWC 2104 – GC [2014] FWC 6988 - Amie Mac v Bank
of Queensland Ltd et al – [2015] FWC 774
• S.789FD(2) is not so much an "exclusion" but a qualification which
reinforces that bullying conduct must of itself be unreasonable. It also
emphasises the right of management to take reasonable management
action in the workplace. The provision comprises three elements:
• the behaviour (being relied upon as bullying conduct) must be
management action;
• it must be reasonable for the management action to have been taken;
and
• the management action must have been carried out in a manner that is
reasonable.
• Determining whether management action is reasonable requires an
objective assessment of the action in the context of the circumstances
and knowledge of those involved at the time.
24Future risk of bullying – s.789FF(1)(b)(ii)
• Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503 - GC
[2014] FWC 6988 - P.K. [2015] FWC 562 – Obatoki v Mallee Track
Health & Community Services and Others – [2015] FWCFB 1661
• The Commission must be satisfied that there is a risk that the (applicant)
worker will continue to be bullied at work by the individual or group
(found to have bullied the applicant)
• May require consideration of whether an applicant will no longer be at
work with the relevant individual or group and whether there is a
reasonable prospect of that occurring in some capacity as a worker in the
future
• Not always appropriate for the FWC to dismiss a s.789FC application
where an employee is dismissed from their employment. Depending on
the circumstances in each case there may be a number of relevant
considerations, including the prospect of reinstatement through other
proceedings, which could warrant the FWC dealing with a s.789FC
application notwithstanding the dismissal of the employee.
25Orders – why so few?
• Applicant must be in the relationship when apply and when
orders made
• Serious matters are often dealt with by employers directly
upon receipt of application and often before any proceedings
• Not all claims have substantive merit
• Relatively high proportion of formal or informal settlements
• Must be a future risk – prevention measures developed
and/or individual party no longer relevant (dismissals)
• Some applicants are unable to stay the course – even in the
context of the facilitative process and inquisitorial nature of
determinative procedures
• Limited representation – little recourse to interim orders
26Orders – what might be included
(cont.)
• Who may be subject to an order?
• Applicant workers
• Individuals named
• Employer/principals(s) of applicants and individuals named
• What included in CF and NW - [2015] FWC 5272
• Not make contact and not attend other workplace
• Confirm reporting arrangements
• Establish proper standards of conduct
• Establish complaints procedure
• Provide training for all (including Directors)
• Confidentiality (not normal)
27Orders – what might be included
(cont.)
• Bowker and others v DP World and MUA – [2015] FWC
7312 contemplated:
• Risk assessment and RTW plans to be organised
• Implementation of measures from risk assessment
• Active monitoring of control measures and conduct
• Training of management personnel about workplace bullying and
dealing with complaints
• Develop and deploy workplace investigation manual
• Review and amend employee handbook
• Consideration of orders against individuals depending upon
undertakings about conduct and training that had been offered during
proceedings
28Interim Orders
• Worker A and others v AMWU and CEPU – [2016] FWC
5848
• ‘CUB’ picket
• Applied “serious question to be determined” and “balance of
convenience” to de-escalate risks and maximise safety
• Bayley – [2017] FWC 1886
• Applicant about to be dismissed in context of process raised in the AB
matter
• Utilised s.589(2) and applied AMWU v WW Wedderburn
• Exercised with considerable caution
• Likely to be exceptional
• No Full Bench consideration at this point
29Our role
‘It should never be forgotten that tribunals
exist for users and not the other way around.
No matter how good tribunals may be, they do
not fulfil their function unless they are
accessible by the people who want to use
them, and unless the users receive the help
they need to prepare and present their cases.’
Sir Andrew Legatt (2011)
Tribunals for Users – One System, One Service
Report for the Review of Tribunals
© Commonwealth of Australia 2019Changing nature of Commission users
Workplace Relations Act WorkChoices Fair Work Act
%
100
90
80
70
60
50
40
30
20
10
0
Collective matters Individual matters
Source: Fair Work Commission Annual Report 2014-15, Figure 2, p.23, updated 2017-18
© Commonwealth of Australia 2019Workload 2017–18
Source: Fair Work Commission Annual Report 2017–18 at p.18
© Commonwealth of Australia 2019Recent developments:
Modern awards4 yearly review • The Fair Work Act, prior to the introduction of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth), required the Commission to review all modern awards once every four years. • The review began in February 2014 and is expected to be completed in 2019. • The review’s initial stage considered jurisdictional issues. Having dealt with those matters, the Commission is reviewing four groups of individual awards and 17 common issues that apply across multiple awards © Commonwealth of Australia 2019
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) was passed in December 2018. The Act repeals the provision for 4 yearly reviews in the Fair Work Act with effect from 1 January 2018. © Commonwealth of Australia 2019
Common issues
Matter Common issue Status Decision
AM2016/35 Abandonment of Determined in part [2018] FWCFB 139
employment
AM2014/47 Annual leave Determined [2015] FWCFB 3406
[2015] FWCFB 5771
AM2016/13 Annualised salaries Determined in part [2018] FWCFB 154
AM2014/192 Apprentice conditions Determined [2014] FWCFB 9156
AM2014/300 Award flexibility Determined [2015] FWCFB 4466
AM2016/36 Blood donor leave Determined [2017] FWCFB 4621
AM2014/197 Casual employment Determined in part [2017] FWCFB 3541
[2018] FWCFB 4695
[2018] FWCFB 5846
AM2015/1 Family & domestic Determined [2018] FWCFB 1691
violence clause [2018] FWCFB 3936
AM2015/2 Family friendly work Determined [2018] FWCFB 1692
arrangements [2018] FWCFB 5753
[2018] FWCFB 6863
© Commonwealth of Australia 2019Common issues
Matter Common issue Status Decision
AM2014/306 Micro business Claim withdrawn
schedule
AM2016/17 National Training Wage Determined [2017] FWCFB 4174
AM2017/51 Overtime for casuals Statement issued [2017] FWCFB 6417
AM2014/196 Part-time employment Determined [2017] FWCFB 3541
[2018] FWCFB 4695
[2018] FWCFB 5846
AM2016/8 Payment of wages Determined in part [2018] FWCFB 4735
AM2016/15 Plain language Determined in part [2018] FWCFB 4704
re-drafting
AM2014/301 Public holidays Determined in part [2018] FWCFB 4
AM2014/190 Transitional provisions Redundancy and [2015] FWCFB 644
district allowances
transitional
provisions deleted
© Commonwealth of Australia 2019Recent developments: Enterprise agreements
1992–93 to 2017–18
Enterprise agreements approved
Number IR ACT Workplace Relations Act WorkChoices Fair Work Act
14000
12000
10000
8000
6000
4000
2000
0
Source: Department of Jobs and Small Business, Workplace Agreements Database, September quarter 2018.
© Commonwealth of Australia 2019How are we tracking in 2019?
Timeliness of agreement approvals
for applications lodged and finalised
in 2019
Timeliness benchmark Performance
50% of simple agreements approved in 3 weeks 64%
100% of simple agreements approved in 8 weeks 96%
50% of complex agreements approved in 10 weeks 75%
100% of complex agreements approved in 16 weeks 97%
Data recorded at 15 May 2019Agreement Triage Process
Agreement application lodged
Staff conduct comprehensive
analysis of approval application
Legislative checklist completed
Commission Member considers
analysis and modelling – may request
further information or undertakings
Commission Member determines
whether agreement should be
approved or if an undertaking should
be sought or accepted
© Commonwealth of Australia 2019Common issues and defects in agreements
National Employment Standards
Definition of shift workers Parental Leave
Annual leave Notice of termination and redundancy
Personal/carer’s leave Public holidays
Compassionate leave Flexible working conditions
Better Off Overall Test
Reduced or omitted award entitlements Loaded Rates
© Commonwealth of Australia 2019Common issues and defects in agreements
Mandatory terms
Dispute settlement term
Flexibility and consultation terms
Other terms of the agreement
Nominal expiry date Unlawful terms
Incorporating the award into an agreement
© Commonwealth of Australia 2019Agreement making tips © Commonwealth of Australia 2019
Initiative Description
Guidance on common • Analysis of finalised approval applications to
defects identify common defects
• Publication of a ‘Guide to making compliant
agreement applications’ on the Commission’s
website
Enterprise agreement • User group comprising of employees/organisations
user group who frequently lodge agreement applications to
provide feedback on the application process
Information resources • Publication of various resources on the
and tools Commission’s website to assist parties in lodging
compliant applications
‘Hot Button’ • Parties are able to seek an update on the progress
of an approval application lodged and have the
application expedited
Smart form • Approval application ‘smart form’, which alerts
applicants if legislative requirements have not
been met
Outreach program • Commission Members and senior Commission
staff are able to meet with representatives from
organisationsNew Approaches
New Approaches
• The Commission has developed a
new jurisdiction to expand the focus
of the Commission’s role from one-
off dispute resolution to longer term
support for parties
© Commonwealth of Australia 2019New Approaches
Dispute
prevention Enterprise
Facilitation
Training
and resolution bargaining
Performance Relationship
improvement building
© Commonwealth of Australia 2019New Approaches
Traditional positional bargaining Interest-based bargaining
Consultation with constituents;
Generating the atmospherics
Pre-bargaining undertaking joint situational analysis
Joint training;
Creating the log of claims Preparing developing a joint bargaining plan
to bargain
Making adversarial and duplicitous Conducting joint interest-based
offers and counter offers Bargaining problem solving
Reaching and documenting
Reaching uneasy compromise
Agreement consensus
Left to management until disputed Implementation Jointly implementing
Implementation
© Commonwealth of Australia 2019Case studies © Commonwealth of Australia 2019
New case study – Tertiary education © Commonwealth of Australia 2019
You can also read
