In this fortnight’s edition of the KHQ Workplace Watch, we cover recent law reform and regulatory updates, including the Secure Jobs, Better Pay review, the paid family and domestic violence leave report, and the new work health and safety draft code concerning fatigue management. We report on the recent developments regarding the minimum standards orders applications in the road transport industry, draft guidelines for the regulated labour hire arrangement orders and the application by the Manufacturing Division of the CFMEU to withdraw from the CFMEU. We also summarise recent decisions concerning the Federal Court injunction regarding the Health Services Union and the Fair Work Commission’s Full Bench decision on the issue of permission to be represented in enterprise agreement dispute proceedings.

LAW REFORM

Submissions open for the Secure Jobs, Better Pay Review

Submissions are now open for the Secure Jobs, Better Pay Review which was announced earlier this month.

The Review Panel is calling for written submissions and evidence from interested stakeholders by 29 November 2024, and is seeking views regarding:

• whether the operation of the amendments is appropriate and effective;
• any unintended consequences of the amendments; and
• whether further amendments to the Fair Work Act 2009, or any other legislation are necessary to improve the operation of the amendments to rectify any unintended consequences that are identified.

Information regarding the review and submissions may be found on the Department of Employment and Workplace Relations page here.

Paid Family and Domestic Violence Leave Review Report published

The Commonwealth Government has tabled the final review report of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 conducted by Flinders University. The review concerned the amendments to provide a NES entitlement of 10 days’ family and domestic violence leave.

The review found the leave entitlement is operating as intended and makes 12 findings and 5 recommendations to Government focused on improving and further promoting the entitlement within workplaces and the community. The recommendations include improving existing resources for small businesses and employees with a focus on areas of uncertainty regarding evidence requirements and managing confidentiality, and improving awareness of and access to paid family and domestic violence leave.

A copy of the report is available here.

REGULATORY UPDATES

Draft Work Health and Safety Fatigue Code released

Safe Work Australia is developing a model Code of Practice to provide guidance on managing fatigue risks at work. A draft code, Managing fatigue risks at work, has been released for consultation to ensure that the code:

• assists duty holders to determine what is reasonably practicable to manage fatigue hazards, and
• is broadly applicable across all industries.

Responses are due by 27 November 2024 and the draft may be found here.

Consultation to open for new exposure limits for 9 chemicals

Safe Work Australia is consulting on the proposed workplace exposure limits for 9 chemicals; respirable crystalline silica, benzene, chlorine, copper, formaldehyde, hydrogen sulphide, nitrogen dioxide, titanium dioxide and hydrogen cyanide.

The consultation will be used to prepare an impact analysis to allow work health and safety ministers to decide on the exposure limits and the timeframe for implementation.

More information on the consultation process can be found here.

SafeWork NSW releases consultation paper on silicosis dust register

The NSW Government is introducing a silica worker register to help monitor the health of at-risk workers and has released a consultation paper in respect of the draft Work Health and Safety Amendment (Silica Worker Register) Regulation 2024.

Information regarding the consultation, including the consultation paper and the draft legislation may be found here.

FAIR WORK COMMISSION UPDATES

Ballot for withdrawal of Manufacturing Division from CFMEU

Earlier this month the Divisional Executive of the Manufacturing Division of the CFMEU made an application for a ballot to be held to decide whether the Manufacturing Division should withdraw from the CFMEU. The application was made pursuant to the recently amended Fair Work (Registered Organisations) Regulations 2009 (Cth) following the amendments introduced by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamation) Act 2024 (Cth) which introduced provisions for the withdrawal of the Manufacturing Division from the CFMEU.

Vice President Gibian has issued a statement starting a new major case, which can be viewed here.

Draft guidelines for regulated labour hire arrangement orders published

The President of the Fair Work Commission, Justice Hatcher, has published a statement and draft guidelines for regulated labour hire arrangement orders.

Feedback on the draft guidelines must be provided by 25 October 2024. The draft guidelines are available here, and the statement is available here.

Update on Paid Agents Consultation

The Fair Work Commission has announced that public consultation will take place on 6 November 2024 in Melbourne in respect of Recommendation 1 of the Paid Agents Working Group:

Recommendation 1: Members and conciliators (where applicable under the delegation of general protection conciliation powers to staff members) will determine applications under s 596 of the Fair Work Act 2009 for representation by a paid agent prior to any conciliation, conference or hearing.

Commissioner Johns will set out the Commission’s approach to representation and s 596 of the Fair Work Act 2009 and outline a new pre-allocation pilot.

Information regarding the consultation may be found here.

Statement on road transport

The President of the Fair Work Commission, Justice Hatcher, has issued a statement outlining a process for obtaining prioritisation advice from and engaging in initial consultation with the Road Transport Advisory Group (RTAG) regarding the TWU’s applications to make minimum standards orders. Justice Hatcher noted that:

• the 8 submissions to the Commission agreed (or did not oppose) Justice Hatcher’s initial view that an expert panel should be constituted for the matter;
• concerns were raised about the role which the RTAG might play in respect of applications for minimum standards orders for employee-like workers, with there being two main, albeit overlapping, concerns:
  • the first is that an advisory/consultative process involving the RTAG will deny a proper opportunity for parties which consider themselves outside the road transport industry, such as digital platform businesses, to be consulted and make submissions; and
  • that the RTAG lacks expertise and representation in respect of the digital platform sector.

In response to those concerns, Justice Hatcher confirmed “that while the Fair Work Act requires that the Commission consult and have regard to the views of the RTAG in certain circumstances…  this is not a substitute for the Commission’s deliberative processes” and reiterated the detailed and balanced approach that the Commission would take in dealing with applications. Further, the Commission will publish any advice it receives from the RTAG and the RTAG will establish a subcommittee to provide it with specialist advice.

The next steps involve Justice Hatcher issuing a written direction to the RTAG to prioritise the TWU applications and provide advice about how it will conduct itself, form subcommittees and a direction that the RTAG be inclusive and broadly representative when forming subcommittees.

A copy of Justice Hatcher’s statement may be found here.

Statement on gender-based undervaluation proceedings

The Full Bench has issued a statement in response to a request by the ACTU for the Commission to conduct and publish research in the gender-based undervaluation proceedings concerning the priority award review. The research concerns data regarding employee earnings and hours and ‘microdata’ in respect of some employer and employee characteristics by modern award.

The preliminary view of the Full Bench is that the data should be published to the extent that it is able to do so.

A copy of the statement is available here.

CASE UPDATES

Federal Court grants injunctive relief against HSU Branch

The Federal Court has granted injunctive relief that the Victoria No. 1 Branch of the Health Services Union be prevented from transferring funds to pay the legal costs of Branch employees incurred in defending separate proceedings commenced by the General Manager of the Fair Work Commission.

Justice Dowling found in granting the injunctive relief that there was a serious question to be tried, and that it was “much more than weak” having regard to the seriousness of the allegations by the General Manager of the Fair Work Commission, the failure of the Branch to take immediate action in response to the those proceedings and the concerning reprisal conduct that had been taken against certain individuals within the Union.

Health Services Union v Asmar & Ors [2024] FCA 1168.

Full Bench grants right for employer to be represented on appeal

The Full Bench of the Fair Work Commission has overturned a decision that denied an employer permission to be represented by a lawyer in proceedings concerning a dispute under the dispute resolution clause in an enterprise agreement.

Deputy President O’Keefe, at first instance, refused permission for the employer to be represented, finding that the terms of the enterprise agreement which expressly provided for the initiator to be represented, meant that other parties could not be represented.

On appeal the Full Bench referred to the Full Federal Court’s recent decision in United Firefighters’ Union of Australia v Fire Rescue Victoria [2024] FCAFC 84 and said:

[22] The nature and extent of the function to be undertaken by the Commission, and the procedure to be adopted, is determined by the terms of the relevant agreement. An agreement could provide that the parties have an unconstrained right to be legally represented or that the parties are not entitled to be represented. If the agreement is silent, it is generally assumed that the parties intended to take the Commission as they find it, such that the default position in s 596 of the Act will apply and representation is possible albeit only with the permission of the Commission.

The Full Bench upheld the appeal, finding that on the proper construction of the dispute resolution clause in the enterprise agreement, when read as a whole, did not preclude non-initiating parties to a dispute from being granted permission if the Commission was satisfied it was appropriate to do so.

PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash and Others [2024] FWCFB 396 – 16 October 2024 – Gibian VP, Dean DP and Slevin DP.