It has been another big fortnight in workplace relations. The fallout following the CFMEU controversy has again dominated the national news. We also now have a new Federal Minister, with Murray Watt replacing Tony Burke following a cabinet reshuffle. In this edition of the KHQ Workplace Watch, we cover updates regarding the new “right to disconnect” and “regulated workers” reforms, the review of modern awards (including the part-time employment review commencing in 2025), some notable decisions in the Fair Work Commission and the Fair Work Ombudsman’s recent activity concerning the CFMEU.
Additional guidance material regarding new ‘Closing Loophole’ reforms
The Fair Work Commission has published new information on its website regarding:
- The right to disconnect, which is set to take effect from 26 August 2024 (and 26 August 2025 for small businesses). The general information page can be found here. The Fair Work Commission Fact Sheet regarding the right to disconnect can be found here. And the Implementation Report regarding the right to disconnect can be found here.
- Its new regulated worker functions, including a video presentation by Commission members, an animation explaining the new changes for regulated workers on digital platforms and the road transport contractual chain functions and a new infographic on the collective agreement process. See link here.
Modern Awards
Casual employment
The Fair Work Commission published its provisional views concerning proposed changes to modern awards to address the upcoming changes to casual employment laws, which are set to take effect from 26 August 2024.
See further information here, and a copy of the Statement here.
Review of modern awards
The Fair Work Commission has also finalised the Modern Awards Review 2023-24. The Commission has published its Final Report concerning its review of four ‘priority’ matters. The review was conducted in four streams: arts and culture sector, job security, work and care and ‘making awards easier to use’.
The outcome of the Review is that the Commission will, on its own initiative, commence proceedings to deal with the priority matters identified in the report. The proceedings to be initiated concern the following awards:
- Amusement, Events and Recreation Award 2020 (commencing in September 2024);
- Live Performance Award 2020 (commencing in September 2024);
- General Retail Industry Award 2020 (commencing in August 2024);
- Clerks – Private Sector Award 2020 (commencing in August 2024);
- Higher Education Industry – Academic Staff – Award 2020 (commencing in September 2024); and
- Higher Education Industry – General Staff – Award 2020 (commencing in September 2024).
There will also be a review of award provisions regulating part-time employment. This review will not commence until next year. However, it is expected to be a contentious area. It has been reported that unions will push for greater restrictions on part-time work, including four-hour shifts and 28 days’ advance notice of rosters. Employers, on the other hand, will pursue greater flexibility for enabling part-time employees to agree to work additional hours without attracting overtime penalties.
The part-time employment review will focus on the following seven awards:
- General Retail Industry Award 2020;
- Social, Community, Home Care and Disability Services Industry Award 2010;
- Hospitality Industry (General) Award 2020;
- Fast Food Industry Award 2010;
- Restaurant Industry Award 2020;
- Children’s Services Award 2010; and
- Clerks-Private Sector Award 2020.
See the Statement issued by Justice Hatcher, President, here, and the Final Report here.
New decisions in the Fair Work Commission
There have been some notable decisions by the Fair Work Commission in the last fortnight, such as:
- An arbitration of a dispute regarding a request for a flexible work arrangement. The Commission ordered that, for a 3-month period, FedEx allow its employee to work from home 3 days per week, but work at the office 1 day per week. Although the employee’s request to work from home exclusively was rejected, the Commission did make the following observation:
“[71] Although it is beneficial for the Applicant to have further collaboration with his fellow workers, FedEx fail (sic) to consider the Applicant’s personal circumstances in their reasoning for refusing their request or how approving the request would be detrimental to the business. Generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request. Therefore, I am not satisfied that the Respondent provided a sufficient explanation for why the request was refused on reasonable business grounds on 21 February 2024.”
See decision of Deputy President Lake in Ridings v Fedex Express Australia Pty Ltd [2024] FWC 1845 here.
- The latest decision regarding the meaning of “agreed terms” for the purpose of an intractable bargaining workplace determination. In this case, a union argued that there were no “agreed terms” because all items were agreed to on a conditional basis that a final satisfactory package was ultimately achieved. The Commission looked beyond the union’s correspondence and made an assessment about whether the union truly was not in agreement about all terms in the proposed agreement, until a final agreement was reached. The Commission found:
“[193] The evidence before us supports a finding that bargaining progressed between the bargaining representatives on the basis that there was not a ‘genuine conditional reservation’ of the type referred to in UFU. We find it was not the case that terms were only agreed subject to a satisfactory overall package. Whilst we accept Mr Aiken’s and Captain Bartlett’s evidence that Captain Bartlett had issued communication that referred to the statements as referenced at paragraphs [163] and [164] of this decision, we consider that the focus on certain lines uttered in bargaining in this context is not particularly helpful and is preternatural as to what in substance occurred.”
In this case, the union in question had endorsed a proposed agreement that was ultimately voted down by employees. The terms of that proposed agreement were considered to be “agreed terms”.
See the Full Bench decision in Network Aviation Pty Ltd v AFAP, AIPA and TWU [2024] FWCFB 308 here.
- A decision which queries the validity of retrospective resignations. An applicant in an unfair dismissal application resigned from his employment. The written resignation stated that the resignation took effect retrospectively. The applicant then argued that he had been constructively dismissed. He filed the application for an unfair dismissal remedy within 21 days of the day he communicated the resignation, but outside the 21-day time limit if the resignation operated retrospectively. The former employer argued that the resignation did operate retrospectively and the application was, therefore, filed out of time.
Commissioner Crawford rejected the argument that the resignation operated retrospectively, applying the decision in Ayub v NSW Trains. The Commissioner went on to say:
“[20] I also consider there are practical problems with the proposition that a resignation can operate retrospectively. The employee will inevitably be bound to comply with the employment contract and implied duties until the employer becomes aware of the resignation. Likewise, the employer will be bound to comply with obligations to an employee until they are aware of the resignation. That may include having workers’ compensation insurance to cover the employee. I consider it is problematic for these various duties and obligations if an employee can resign with retrospective effect. It would be odd, for example, if an employee is able to potentially circumvent actions for breaching the employment contract or implied duties during a period of employment by retrospectively resigning, effective from a date that preceded the relevant breach.”
As noted in the decision, retrospective resignations are often agreed terms in post-employment settlements between employers and former employees. The Commissioner distinguished those arrangements on the basis that they concerned agreements regarding how an employment relationship ended (rather than when it ended). Nevertheless, the decision does still cast some doubt on the appropriateness of agreeing to such terms in settlement agreements.
See a link to Commissioner Crawford’s decision in Stay v R & K.M Jordin Pty Ltd [2024] FWC 1799 here.
The Fair Work Ombudsman and the CFMEU
In the last fortnight, the regulator has reported the following notable updates:
- The Ombudsman has commenced an investigation regarding serious misconduct within the branches of the Construction and General Division of the CFMEU in relation to potential contraventions of the Fair Work Act 2009 (Cth). The investigation will focus on allegations concerning adverse action, coercion, misrepresentation and the corrupting benefits disclosure obligations.
Fair Work Ombudsman, Anna Booth, made a statement about the CFMEU which included the following message:
“The FWO has secured total penalties of more than $3.3 million in litigations that have concluded since they were transferred to the FWO in December 2022.”
“The large majority of these penalties have been secured against the CFMEU or its officials.”
“Improving compliance across the building and construction industry is a priority for the Fair Work Ombudsman, and we will continue to investigate reports of non-compliance and hold to account those who act outside the law.”
See report here.
- $168,000 in court ordered penalties were secured against the CFMEU and one of its officials for improper conduct at the West Gate Tunnel construction project in Melbourne in December 2019. The CFMEU officials entered an exclusion zone and delayed the installation of five bridge beams. One official was found to have made abusive comments to a WorkSafe Victoria inspector and Victorian Police officers after being asked to leave the exclusion zone. The Court described the conduct as follows:
“They sought to appropriate unto themselves an authority that they plainly did not possess; and, when challenged, their response was to bully their interlocutors with unwarranted insults and abuse”.
See report here.
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