Workplace Watch – 4 November: Same Job, Same Pay Orders, Federal Court’S Compensation Decision For Qantas Employees, ILO’S Occupational Safety And Health Convention Ratified
In this fortnight’s edition of the KHQ Workplace Watch, we cover topics including the review of the Comcare workers’ compensation scheme, the ratification by the Commonwealth of an ILO safety convention, and the progression of major case reviews concerning a number of awards (including fixed term contracts in higher education, gender-based undervaluation, the Clerks Award and Nurses Award). We also address the Fair Work Commission’s new online portal and guidelines for Same Job, Same Pay Orders and, we report on recent cases including the Federal Court’s Qantas compensation decision, a Full Bench decision to uphold the reinstatement of an employee who breached a drug and alcohol policy and a decision regarding the refusal of orders to stop unprotected industrial action allegedly engaged in by the employees of the contractors of a principal contractor.
LAW REFORM
Submissions open for the review of the Safety, Rehabilitation and Compensation Act 1988
The Commonwealth Government has appointed an independent panel to undertake a comprehensive review of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), the applicable legislation for the Comcare workers’ compensation scheme.
The panel is seeking submissions from:
- Injured workers or family members of injured workers who have lived experience of the Comcare scheme.
- Other participants directly involved in the workers’ compensation scheme, such as employers of injured workers, claims managers, rehabilitation providers and health care providers.
- Peak representative bodies and organisations.
- Legal representatives, insurers, actuaries and academics with experience in workers’ compensation.
An issues paper has been released, and information regarding it and the consultation may be found on the Department’s consultation hub here.
ILO’s Occupational Safety and Health Convention ratified
The Commonwealth ratified the International Labour Organisation’s (ILO’s) ‘fundamental’ Convention 187 Promotional Framework for Occupational Safety and Health and Convention 191 Safe and Healthy Working Environment (Consequential Amendments) on 29 October 2024 in Geneva, Switzerland.
Convention 187 was ratified following a recommendation by the Joint Standing Committee on Treaties in September, see the report here.
In order to achieve the objectives of the convention, members must develop a national policy, national system and national programme on occupational safety and health (OSH) and take steps towards ‘achieving progressively a safe and healthy working environment.
Convention 187 may be found here.
FAIR WORK COMMISSION UPDATES
Online Learning Portal Launched
The Fair Work Commission and Fair Work Ombudsman have jointly launched an online learning portal. The portal contains animations and resources in multiple languages on:
- Understanding employee pay and entitlements
- Understanding enterprise agreements:
- Understanding bargaining
The Online Learning Portal is available here, and the Commission’s joint media statement with the Fair Work Ombudsman is available here.
Full Bench issues statement on fixed-term contract provisions in higher education
The four member Full Bench conducting the review of the fixed-term contract provisions in the higher education awards has issued a statement that Commissioner Tran will conduct 3 conferences in November to see if consensus may be reached on the issues to be determined by the Full Bench review.
The statement indicates that the Full Bench will need to determine a preliminary issue, being the proper construction of s333F(1)(h) of the Fair Work Act 2009 which provides an exception to the fixed term contract limitations if permitted by the terms of a Modern Award.
The conferences will be held on 14, 21 and 28 November 2024.
A copy of the statement may be found here.
Same Job, Same Pay Orders
The Fair Work Commission published draft guidelines in relation to regulated labour hire arrangement orders on 14 October 2024. The President of the Fair Work Commission, Justice Hatcher, issued a statement determining to make the guidelines with minor amendments taking into account the feedback provided to the Commission.
A copy of the statement may be found here, and a copy of the guidelines may be found here.
Additionally, 1 November 2024 was the earliest date on which a labour hire arrangement order could commence. Four labour hire arrangement orders had already been made by the Fair Work Commission since the introduction of the regime – those orders took effect on 1 November 2024. Orders granted in the future may now take effect from the day the order is granted by the Fair Work Commission.
The four decisions prior to 1 November 2024 were:
- Application by the Mining and Energy Union [2024] FWCFB 299 regarding WorkPac and work performed at the Callide Mine
- Applications by The Australasian Meat Industry Employees Union [2024] FWCFB 388 in relation to two labour hire companies Food Industry People Group Pty Ltd and Task Labour Services Pty Ltd for work performed at Australian Country Choice Production Pty Ltd
- Application by Mr Nicholas Driver [2024] FWCFB 394 in relation to the labour hire company TP Human Capital Pty Ltd and work performed at the South32 Cannington mine
On 1 November the Full Bench made a further 4 orders:
- Application by the Mining and Energy Union re Poitrel Mine [2024] FWCFB 412 in relation to work performed by WorkPac at the Poitrel Mine, commencing 4 November 2024
- Application by Mining and Energy Union re Boggabri Coal Mine [2024] FWCFB 415 in relation to work performed by FES Coal Pty LTd at the Boggabri Coal Mine, commencing 4 November 2024
- Applications by Mining and Energy Union re Capcoal Surface Operations [2024] FWCFB 411 in relation to work performed by WorkPac and Mobilise Group at the Capcoal Surface Operations open cut black coal mine, commencing 4 November 2024
- Applications by Mining and Energy Unionre Coppabella Mine [2024] FWCFB 413 in relation to work performed by One Key Resources at the Coppabella Mine, commencing 4 November 2024
Priority Awards Review into Gender-based undervaluation
The Full Bench of the Fair Work Commission issued a statement confirming the provisional view that data requested by the Australian Council of Trade Unions should be researched and published. Publication of the data was not opposed provided that the parties had the opportunity to address the data.
A copy of the statement may be found here.
A copy of the initial data (containing information about employees who are covered by the Children’s Services Award 2010, the Pharmacy Award 2020 and the Health Professionals and Support Services Award 2020) may be found here.
Clerks Award variation for working from home
The Full Bench of the Fair Work Commission has issued a statement and directions in a major case dealing with the proposed variation to include working from home arrangements in the Clerks—Private Sector Award 2020.
The Full Bench confirmed the identified issues, issued directions for the future programming of the proceedings and provided 4 options for further research to be conducted by the Fair Work Commission.
Interested parties may file any proposals for a working from home clause, submissions and the evidence upon which they wish to rely by Friday, 28 March 2025.
A copy of the statement may be found here.
Variation of Nurses and Aged Care Awards
The Full Bench of the Fair Work Commission has issued a statement in a major case considering applications to vary the Nurses Award 2020. The statement summarises previous statements and submissions received by the parties and confirms the new classification structure for registered nurses and enrolled nurses in the aged care sector. The new classifications and transitional arrangements are specified in Attachment A to the statement.
The provisional view of the Full Bench is that the new wage rates should be phased in three tranches (1 January 2025, 1 October 2025 and 1 August 2026). Interested parties may file submissions in response to this proposed timetable by 8 November 2024.
A copy of the statement may be found here.
CASE UPDATES
Federal Court’s compensation decision for Qantas employees
Justice Lee has issued the compensation decision in the high profile case involving the decision by Qantas to outsource its ground handling operations in 2020.
Despite this development attracting some recent media attention, the report notes that no changes to Commonwealth, State or Territory legislation is required in order for Australia to meet its obligations under the Convention.
The compensation ruling focusses on three “test case” former employees in particular. However, the decision sets out the principles for assessing compensation for almost 1,700 former employees.
Significantly, the Court accepted that had Qantas not made the outsourcing decision when it did in 2020, it would have done so by late 2021.
Justice Lee said:
173 Given Qantas’ laser-like determination to focus on cutting costs and the lack of priority it placed on the continuing employment of the affected workers, it is wholly unrealistic to think that outsourcing would never have occurred, and that a decision to do so would not have been made by around the time posited by the second counterfactual. Having regard to the circumstances proved in the evidence, and particularly having regard to the perceived exigencies of the problems facing Qantas in 2021, the degrees of probabilities or possibilities are such that absent the contravening conduct I am satisfied that Qantas would have definitely decided to outsource by late 2021.
175 As I have sought to stress, the approach to common law damages is a useful guide but is not proscriptive and s 545(1) of the FWA vests the Court with a relatively unconfined discretion to fasten upon a remedy it considers appropriate depending on the particular facts and circumstances of a case where there has been contravening conduct.
176 (…) As noted above, there was an almost total cessation of international commercial passenger flights until February 2022 and by March 2022, all interstate border restrictions had been lifted to vaccinated interstate travellers. It is appropriate to calculate compensation on basis that it has been established that outsourcing would have occurred, in the counterfactual world, 12 months after each of the test case individuals ceased employment.
This means that for former employees who are eligible for economic loss, the calculation of such loss will be based on the finding that their employment would have ended within 12 months.
The Court awarded non-economic loss to each of the former employees, including up to $100,000 for one individual, based on their specific circumstances.
The compensation ruling focusses on three “test case” former employees in particular. However, the decision sets out the principles for assessing compensation for almost 1,700 former employees.
Transport Workers’ Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216
CFMEU penalised for misusing powers
The Federal Court has imposed penalties of $105,000 against the CFMEU, and $11,100 and $15,000 in respect of the two of its officials. Justice Rangiah found that unlawful conduct occurred at a Brisbane construction site in July 2020 when the union threatened to cause employees of subcontractors at the site to refuse to carry out work, with the intent to coerce the head contractor to remove its project manager from the site.
The Fair Work Ombudsman’s report regarding this decision can be viewed here.
Separately, the Fair Work Ombudsman also reported that it had recovered $473 million for nearly 160,000 underpaid workers in 2023-24 (as well as $21.2 million in court ordered penalties). See relevant media release from the Fair Work Ombudsman here.
Full Bench upholds reinstatement of drug dismissal
The Full Bench of the Fair Work Commission has granted permission to appeal and subsequently dismissed an appeal by Sydney Trains against the decision of Deputy President Easton to reinstate an employee who had tested positive for cocaine in a drug and alcohol test on his first day back from leave.
Reinstatement had been ordered following a finding by the Deputy President that there was a valid reason for the dismissal but the dismissal was harsh, unjust, and unreasonable due to mitigating factors.
The Full Bench considered previous Full Bench decisions on in Toms, Sharp and Hilder, observing that those decisions “do not establish a decision rule, or stand as authority for the principle that in cases involving a dismissal for breach of a drug and alcohol policy, an employer must establish a risk that an employee dismissed for returning a positive drug test in breach of such a policy was impaired at work. To the contrary, those cases all make clear that the fact that an employee attends for work and returns a positive test for a prohibited substance, may of itself, constitute a valid reason for dismissal for the purposes of s. 387(a) of the Act.”
The Full Bench said at [117]:
“Contextual matters cannot derogate from the validity of a reason for dismissal based on a breach simpliciter of a lawful and reasonable policy. This involves a decision making process whereby the validity of a reason for dismissal under s. 387(a) is considered separately from mitigating factors found to be relevant under s. 387(h). All the matters in s. 387 – substantive, procedural and contextual – are then required to be considered and weighed in the overall assessment of whether a dismissal is harsh, unjust or unreasonable. Notwithstanding a finding under s. 387(a) that there was a valid reason for dismissal related to breach of a drug and alcohol policy, it may be reasonably open to the Commission to find that in all the circumstances of a particular case, the dismissal was unfair, when other matters in s. 387 are considered and weighed, including mitigating factors in s. 387(h).”
Sydney Trains v Reece Goodsell [2024] FWCFB 401.
Application for order to stop unprotected industrial action dismissed
CPB Contractors applied for a s 418 order against the employees of its contractors, alleging that the employees were engaging in unprotected industrial action by failing to attend work when rostered on a shift. The application related to the $7 billion Cross River Rail project.
The CFMEU had been picketing at the project for several months in the midst of a bargaining dispute.
152 of CPB’s 195 employees were engaging in protected industrial action. None of its contractors’ employees were subject to a protected action ballot order, yet since 16 July 2024 CPB claimed that on average 711 of its contractors’ employees (and up to 1,104) had failed to attend their rostered work at the project on any given day. CPB argued that these employees were failing to attend for work either because they sympathised with the CFMEU industrial campaign or because they were simply refusing to cross the picket line.
Commissioner Schneider dismissed the application to stop unprotected industrial action, stating:
“[99] It appears that the Employees are not refusing to attend work by failing to cross picket lines, and instead they are unable to attend work as a result of the picket line causing either mental or physical risk to their safety. Such concerns the Employees have raised with the Contractors who have then, in several cases, authorised the Employees not to attend out of concern for health and safety.
[100] I note the submissions of Klenner Murphy Electrical, Highforce, and ABS Façade who oppose the orders being granted. These Contractors have highlighted instances of intimidation or similarly concerning conduct present at picket lines. These Contractors have cited such incidents as reasons for the Employees failing to attend work as they submit these pose legitimate imminent risk to health and safety.
…
[102] From the evidence before the Commission there is not a clear indication as to which Employees are potentially not attending work for a legitimate reason (e.g. personal leave or similar) or which Employees are not being directed to attend work for a legitimate reason (e.g. not being directed to attend work by a Contractor due to health and safety risks), to which an order could not cover.
…
[110] It is not an effective or appropriate use of the Commission’s powers to issue an order for industrial action to stop in circumstances where an applicant has not been able to confirm, with any degree of certainty, what group of employees are engaging in said action. Especially so where the Commission has indication that several of the employees allegedly engaging in the conduct at issue are doing so out of safety concerns, upon authorisation of their employer, or that some may not even be employed on the relevant work site.
[111] In putting forward an application that comes with the significant consequence of the Commission granting orders requiring the Employees return to work in the current circumstances, it is incumbent on the Applicant to ensure that the data or evidence relied upon for its conclusion is reliable and has utility for the purposes of the Commission’s consideration.”
Application by CPB Contractors Pty Limited T/A CPB Contractors [2024] FWC 2930.
