In this fortnight’s edition of the KHQ Workplace Watch, we cover topics including:

• recent updates in the transport industry concerning the applications for minimum standards orders and Menulog’s application for a new modern award
• the passing of a bill by the House of Representatives intended to increase wages in early childhood education and care, and
• recent decisions regarding start-up enterprise agreements, individual respondents in general protections claims, the reverse onus of proof in adverse action cases and the employee/contractor distinction where there is no written contract.

We also provide our regular reports from the Fair Work Commission, including updates regarding the variation of the Live Performance Award 2020, the new model terms for enterprise agreements and the junior rates proceedings.

TRANSPORT INDUSTRY UPDATES

Update regarding applications for minimum standards orders

The Fair Work Commission has issued a further statement relating to the three applications for minimum standards orders lodged by the Transport Workers’ Union (TWU) in August 2024 and a fourth application for a contractual chain order in September 2024.

On 6 September 2024, the President of the Fair Work Commission issued a Statement confirming that an expert panel had been constituted for the purposes of facilitating consultation with affected entities.

Although, as directed on 24 October 2024, the Road Transport Advisory Group is currently considering (and is required to advise) its views on issues including the prioritisation of the TWU’s four applications by 6 December 2024, the Expert Panel has in the meantime decided to conduct a conference of all parties who have made submissions in response to the Statements issued by the President of the Fair Work Commission regarding the four applications. The conference will discuss the consultation process, but not substantive matters, on 29 November 2024.

A copy of the Statement may be found here.

Menulog’s application for on demand delivery services award referred to RTAG

The President of the Fair Work Commission, Justice Hatcher, has issued a statement in respect of the application lodged by Menulog in 2021 seeking that the Commission make a new modern award covering the ‘on demand delivery services industry’. The Full Bench of the Fair Work Commission issued a decision in 2022 concluding that the ‘on demand delivery services industry’ was covered by the Road Transport and Distribution Award 2020 and that while it could not make a binding determination of award coverage, the Full Bench was entitled to express and act on its opinion in respect of Menulog’s application. Since the Full Bench’s decision in 2022, the parties undertook a series of conciliations before Commissioner McKinnon.

Following the creation of the Road Transport Advisory Group (RTAG) after the second tranche of the Closing Loopholes reforms and their amendments to the Fair Work Act 2009 (Cth), Menulog’s application was listed before Justice Hatcher for a report back during which the parties agreed that the application should be referred to the RTAG.

Justice Hatcher issued a direction to the RTAG to advise on how he should determine the priorities for Menulog’s application in the context of the TWU’s four applications for minimum standards orders.

A copy of the Statement and Direction is available here and the Commission’s major case page is here.

FAIR WORK COMMISSION UPDATES

Live Performance Award Review

The Full Bench has issued a statement in respect of its review of the Live Performance Award 2020 and submissions filed by various parties in response to an earlier statement of the Full Bench on 25 September 2024. The Statement confirms the matter will be determined on the papers after responsive submissions are filed on 28 November 2024.

The review was commenced by the Fair Work Commission on its own initiative following the Modern Awards Review 2023-24 which identified potential drafting errors and ambiguities.

A copy of the Statement is available here and the major case page is here.

Model terms for enterprise agreements

The Fair Work Commission has granted an extension for the Australian Retailers Association, the Business Council of Australia and the Australian Chamber of Commerce and Industry to file reply submissions in relation to the proceedings to make new model terms for enterprise agreements. The reply submissions are now due on 28 November 2024.

These model terms will include a flexibility term, a consultation term, and a dispute settlement term.

Public consultation with interested parties is scheduled for 3 December 2024, and the draft model terms are due to be published for comment on 20 December 2024.

Click here to read submissions that have been filed to date.

These proceedings are likely to be of interest to all employers who engage in enterprise bargaining.

Junior Rates proceedings

The Shop, Distributive and Allied Employees’ Association (SDA) and Retail and Fast Food Workers’ Union have filed submissions in respect of the SDA’s application to vary the minimum rates for junior employees covered by the General Retail Industry Award 2020, the Fast Food Industry Award 2020, and the Pharmacy Industry Award 2020.

These submissions can be accessed via the Commission’s major case website here.

CASE STUDIES

Start-Up Enterprise Agreement overturned on appeal

A Full Bench of the Fair Work Commission has upheld an appeal and quashed the approval of an enterprise agreement on the basis that it was not ‘genuinely agreed’. In particular, the Full Bench found that the agreement was “not the product of an authentic exercise in agreement-making as contemplated by Principle 18 of the Statement of Principles on Genuine Agreement.” Additionally, the two employees who voted on the agreement did not have a sufficient interest in the agreement and were not sufficiently representative of the employees to be covered by the agreement.

The Australian Manufacturers Workers’ Union (AMWU) appealed the approval of the enterprise agreement, and were successful in having new evidence admitted. This evidence revealed that only two employees voted on the agreement, but approximately 29 employees transferred to the employer after its approval.

In respect of the issue of admitting new evidence on appeal, the Full Bench said:

[22] We have no doubt that it is appropriate to admit the further evidence relied upon by the AMWU in this matter. The AMWU was not aware of the bargaining or any proposal to make a new enterprise agreement until after the Agreement was approved. The AMWU’s state of ignorance arose from the fact that Sublime Infrastructure chose to bargain for a new agreement to apply to a group of employees with only two individuals. The AMWU’s members performing work at the Sublime workplace, albeit for the time being for a different Sublime entity, were also unaware of the proposal to make a new enterprise agreement. Plainly, the AMWU could not have obtained the evidence, or put it before the Commission at first instance, as it was unaware of the existence of the bargaining or the application for approval of the Agreement.

The Full Bench decision in AMWU v Sublime Infrastructure Pty Ltd and CEPU [2024] FWCFB 432 can be found here.

Adverse action involving dismissal claims against individual respondents

An applicant to a general protections claim was successful on appeal in quashing Commissioner Hunt’s decision to dismiss the application against the 18 non-employer respondents. The matter has been remitted back to the Commissioner for reconsideration.

The application was brought against the applicant’s former employer, Monash University, and identified the National Tertiary Education Industry Union and 17 other individuals as respondents. The Commissioner issued a decision dismissing the application against all respondents, except the employer.

The Full Bench observed that:

[46] Having regard to the reasoning and conclusions in Shea and Visionstream, we do not consider that anything in ss 365 or 368 establishes any jurisdictional impediment to an application validly made under s 365 identifying persons in addition to the applicant’s employer as parties to the relevant dispute. Those provisions contain no prescription or limitation as to the persons who may be involved in the dispute resolution process. The purpose of the dispute resolution process in Subdivision A of Division 8 is, ‘where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and informal process … to facilitate conciliation and non-curial resolution’ (Shea).  It is consistent with this purpose that an applicant may seek to include in the dispute resolution process any persons whom, the applicant alleges, have accessorial liability under s 550 for the dismissal alleged to be in contravention of the general protections provisions of Part 3-1. Such persons may, in our view, reasonably be characterised as persons involved in the relevant dispute, and their inclusion in the process would serve to maximise the prospects of all claims arising from an allegedly unlawful dismissal being resolved by the Commission under s 368 and thus avoiding any subsequent litigation.

(Footnotes omitted).

The Full Bench decision in Dr Kirkham v Monash University & Others [2024] FWC 1757 can be found here.

Discharging the reverse onus of proof in adverse action matters

The Federal Court partially upheld an appeal after it found that the Primary Judge erred in finding the employer had not discharged the reverse onus of proof imposed by s 361 of the Fair Work Act 2009 (Cth). The Court said that the central question raised by s 361 “is “why was the adverse action taken” as a step towards determining whether the reasons for so acting did not include, as substantial and operative reasons, the proscribed reasons.” The Primary Judge found that the reverse onus had not been discharged after rejecting the evidence put forward by the employer purported decision maker.

In finding error, the Court said:

“[439]  It is wrong in point of principle to conclude that the presumption has not been rebutted merely because evidence was not led from the person or persons whom the Court considers took the adverse action. True it is that, absent such evidence, it may be very difficult for the respondent to discharge the onus imposed by s 361. But it does not inevitably flow from a failure to call such a person or persons that the onus has not been discharged. That is because it is not only direct testimony from the decision-maker as found that must be taken into account by the Court in determining whether the true reason or reasons for the taking of an alleged adverse action did not include the proscribed reasons.”

Due to the way in which the evidence had been put to the Court during the appeal, the Court determined to remit the matter as it could not be satisfied that it had all the evidence and could “undertake the task of weighing and assessing the evidence”.

Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323

Full Bench confirms approach to employee v contractor determination where there is no written contract

A masseur made an unfair dismissal application after his engagement with the massage parlour was terminated. At first instance, the Commission dismissed his application on the basis that he was an independent contractor and was ineligible to make the application. Notably, the masseur did not have a written contract. The Full Bench granted permission to appeal on the basis that Deputy President Lake had not adopted the approach required by the High Court decisions in Personnel Contracting and Jamsek and that it was in the public interest to explain the proper approach to be adopted where there is no comprehensive written contract. It is important to note that the case considered the Fair Work Act 2009 (Cth) prior to the Closing Loophole amendments which provided new definitions of ‘employee’ and ‘employer’.

The Full Bench said:

[23] … that does not mean the approach adopted prior to Personnel Contracting and Jamsek is revived where there is no comprehensive written contract. Although it may be necessary in such a case to have regard to the conduct of the parties, the focus of the analysis is different. Even where there is a purely oral contract, the nature of the relationship between the parties is determined by the legal rights and obligations created by the contract. The parties’ conduct, including the way in which the contract is performed, is only relevant to the extent that it assists in ascertaining the terms of the contract, express or implied. The conduct of the parties is irrelevant if it does not touch upon, or provide a basis for inferring, their legal rights and obligations. 

(footnotes removed)

Ultimately, the Full Bench dismissed the appeal, finding that the Applicant was not an employee (albeit for different reasons than the Deputy President at first instance).

The Full Bench concluded:

[57] In our opinion, although the conduct of the parties provides a basis to infer that the respondent assumed a contractual right to direct and supervise the way Mr Ma performed his work, the combined effects of the fact that Mr Ma was paid by reference to a percentage of the fees derived from the services he provided to clients and the findings made by the Deputy President to the effect that Mr Ma was not subject to control as to the days and times at which he attended for work favour the conclusion that he was engaged as an independent contractor.

This decision may be useful in cases where the parties have not formalised the terms of their working relationship in a written contract, especially in the jurisdictions that are not subject to the recent legislative reforms in this space (such as, superannuation, income tax and workers’ compensation).

Gang Ma v Yan Massage Wynnum West Pty Ltd [2024] FWCFB 419

LAW REFORM

Wage Justice for Early Childhood Education bill passes lower house

On 4 November 2024 the House of Representatives passed the Wage Justice for Early Childhood Education and Care Workers (Special Account) Bill 2024. The Bill provides for the creation of a special account to fund grants to early childhood education and care providers to contribute towards wage increases for their workers. The Explanatory Memorandum states: “The measures under this grant program will fund a 15 per cent wage increase for [Early Childhood Education and Care sector] workers over two years, tied to a condition that providers limit fee increases to ensure workers are paid fairly without the costs being passed on to families.”

A copy of the bill, bills digest and explanatory memorandum is available here.