In this fortnight’s edition of the KHQ Workplace Watch we cover a range of hot topics – including the Fair Work Commission’s proceedings aimed at developing the first award ‘working from home’ term, the recent applications by the Transport Workers’ Union for Minimum Standards Orders under the new laws, a significant Federal Court judgment concerning the meaning of “sex” in anti-discrimination law, Endeavour Energy’s failed attempt to terminate protected industrial action that it claimed was threatening the life, health and safety, and welfare of part of the population, the Fair Work Commission’s decision regarding non-compliance with undertakings in relation to protected industrial action and an update regarding the CFMEU and the fall out from its construction and general division being placed into administration.

Working from home – Fair Work Commission looks into a modern award term

The Fair Work Commission is developing a working from home clause for the Clerks-Private Sector Award 2020.

It commenced these proceedings on its own motion. It is one of the proceedings identified in the finalised Modern Awards Review 2023-24, which we reported on in the KHQ Workplace Watch on 29 July 2024. See a copy of the President’s statement regarding the review on 29 August 2024 here.

The Commission has said that this first working from home award term “may serve as a model for incorporation in other modern awards, with or without adaptation.” Employers across Australia will no doubt be following the developments of these proceedings closely.

A major case webpage has been created on the Commission’s site, which can be used to track the developments (see here).

The matter is listed for a hearing in relation to the provisional list of issues and timetabling before Justice Hatcher on 13 September 2024. See notice of listing here.

The Transport Workers’ Union utilises new laws and applies for minimum standards orders 

Within just two days of the new laws taking effect, the Transport Workers’ Union (TWU) filed three applications for minimum standards orders (MSOs):

• an application to make an employee-like worker MSO to cover workers who perform work that involves the transport by road of goods, wares or other things (excluding food, beverages and other like things) and the digital labour platform operators that enter into or facilitate a services contract for the performance of that work;
• an application to make a road transport MSO to cover regulated road transport contractors who perform work that involves the transport by road of goods, wares or other things (excluding food, beverages and other like things) and the road transport businesses that engage those regulated road transport contractors under services contracts to perform that work; and
• an application to make an employee-like MSO to cover certain employee-like workers who perform work that involves the transport by road of food, beverages and other like items and the digital labour platform operators that enter into or facilitate a services contract for the performance of that work..

The FWC has created a major case page on its website: see links here and here and a copy of the applications can be viewed here, here and here.

On 6 September, Fair Work Commission President, Justice Hatcher, issued a statement regarding these proceedings, including provisional views as to how the matters should be programmed (see paragraph [21]). The statement confirms that an Expert Panel for the road transport industry has been constituted, with Vice President Asbury appointed as a member of the Expert Panel and Chair of the Road Transport Advisory Group.

Interested parties are invited to make submissions regarding the President’s provisional views by 12.00pm (AEST) on Friday, 20 September 2024.

A copy of the statement can be viewed here.

Federal Court rules on the meaning of sex 

The Federal Court issued a decision of significance for anti-discrimination laws in the matter of Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960.

In this matter, the applicant had been denied access to the respondent’s social media application. The app marketed itself as a space for communication between women. Men were not allowed to join or use the app. The applicant, a transwoman, was denied access to the female-only app, after having submitted a photograph of herself, which the respondent perceived as the photograph of a man.

In defending the proceedings, the respondents argued that the discrimination was exempt from the prohibitions in the Sex Discrimination Act 1984 (Cth) (SDA) as the exclusion was a special measure to achieve equality between men and women. The respondents also advanced two constitutional arguments concerning the validity of the SDA and the Births, Deaths and Marriages Act 1994.

These arguments failed. Amongst other things, Justice Bromwich said:

“[62] I also accept the Commissioner’s submission in substance to the effect that I do not need to determine the metes and bounds of the meaning of sex in these reasons. I need go no further than accept, as I do, that it is legally sufficient that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex. This is in accordance with the Queensland provisions that were in place at the time of the alleged discrimination, being in substance the same in all the other States and the two Territories, with certain differences that do not presently need to be considered (such as New South Wales being the only jurisdiction that still requires sexual reassignment surgery as a requirement to change a person’s registered sex): see s 24(4) of the Qld BDM Registration Act. This legislation in Queensland, mirrored in like legislation nationwide, reinforces the view already established by the authorities cited above of SRA, Kevin and Jennifer and AB v Registrar of BDM, that in its contemporary ordinary meaning, sex is changeable.”

The respondent was ordered to pay $10,000 in compensation as well as costs.

The Federal Court decision can be found here, and a summary of the decision can be found here.

The online file can be accessed here. 

Evidence falls short in Endeavour Energy’s application to terminate protected industrial action

Deputy President Slevin has now issued his reasons for dismissing Endeavour Energy’s application for an order to terminate protected industrial action.

Endeavour had argued that the protected industrial action was threatening to endanger the life, personal safety and health and welfare of part of the population. The application was dismissed because the employer’s evidence was considered insufficient to meet the high threshold in s 424 of the Fair Work Act 2009 (Cth). For example, the Deputy President said:

“[47] Endeavour’s evidence touched upon vulnerable customers, such as customers on life support, who could be endangered in the event of an outage. But there was also evidence all vulnerable customers have contingency plans such as small generators to deal with outages. Endeavour made general submissions as well about hospitals, emergency services providers and the like. I was not provided with evidence of any particular customer who had been endangered or under the threat of endangerment in the period that the primary feeder cables were faulty. Having not been provided with specific examples of customers threatened by the situation nor taken to the reasons those customers could not deal with an outage, if it did occur, I do not have evidence that there was the requisite threat of endangerment. The evidence falls short of allowing me to reach the required satisfaction. I consider the evidence here to fall into the category of generalised predictions as to the likely consequences of the industrial action which was described as inadequate by the High Court in Coal and Allied Operations Pty Ltd v AIRC and referred to by the Full Bench in ANF. Consequently, I am not satisfied that there was a danger to the life, the personal safety or health, or the welfare, of the population or of part of it.”

See the decision here.

Non-compliance with undertakings does not mean industrial action is not protected

The Australian Federal Police (AFP) was unsuccessful in applying for orders to stop unprotected industrial action.

On 23 August 2024, the Australian Federal Police Associate (AFPA) gave undertakings to the Fair Work Commission. These undertakings included, amongst other things, commitments to provide the AFP with a list of persons who would engage in certain industrial action by a set time.

Commissioner McKinnon accepted that the AFPA had not complied with the undertakings it had given to the Commission. However, this non-compliance did not render the notified industrial action unprotected. The Commissioner said:

“[35] The AFP submits that the AFPA’s notice of protected industrial action is qualified by the undertakings given on 23 August 2024. It submits that industrial action other than in accordance with the undertakings will be industrial action that is not in accordance with the notice. The difficulty is that no such limitation is found in the Act, which contains a detailed set of requirements and processes that must be met for industrial action to be protected, including the notice requirements in s 414. For example, there is no provision either for the giving of undertakings in relation to a notice of industrial action, or for the variation of such notices, either unilaterally or by agreement.

[36] There is a separate requirement in s.409(2) of the Act for industrial action to be authorised by a protected action ballot. But for similar reasons, a failure to comply with undertakings given only after industrial action has been authorised by a protected action ballot does not render what would otherwise be protected industrial action unprotected. That is not to say that undertakings have no work to do. In the present case, the undertakings were given in connection with an application under s.424 of the Act. They form part of the factual matrix in that case, relevant to whether the Commission can be satisfied that the conditions for making an order to suspend or terminate industrial action have been met

[37] There are no orders that apply to the AFPA as the organiser of industrial action and that it has contravened relating to the proposed agreement, or industrial action relating to the agreement, or a matter that arose in bargaining for the agreement. The dispute is instead about the AFPA’s compliance with undertakings it gave both to the Commission and to the AFP in connection with a related application by the AFP under s.424 of the Act for a suspension or termination of the industrial action.”

This outcome is important to keep in mind when undertakings are proposed as a potential way of resolving Commission proceedings.

See the decision here. 

CFMEU Update

High Court challenge

Former CFMEU officials have launched a constitutional challenge to the legislation, and decision, which put the construction and general division of the CFMEU into administration. The matter is expected to be heard by the High Court in November this year.

Nation-wide protests 

Protests were held nation wide on 27 August in support of the CFMEU.

The Fair Work Ombudsman has published a notification for employers to remind them to notify the Ombudsman of any potential unlawful industrial action connected with the protests. The notification also reminded employer’s of their pay withholding obligations in respect of unprotected industrial action.

See the Ombudsman’s notification on 27 August 2024 here, and the warning issued the previous day here.

CEPU announces its decision to end its affiliation with peak union body

The Communications, Electrical and Plumbing Union of Australia (CEPU) has declared that it plans to disaffiliate with the Australian Council of Trade Unions (ACTU) in response to the ACTU’s backing of the Albanese Government’s efforts to place the construction and general division of the CFMEU into administration. It is reported that the CEPU has some 106,000 members and contributes $720,000 per year in affiliation fees to the ACTU.