With much to report on, our final KHQ Workplace Watch for 2024 is a big one!
- The High Court has issued an important decision about psychiatric illness arising from a breach of an employment contract.
- The high-profile industrial action at Woolworths’ distribution centres resulted in relatively rare bargaining orders aimed at stopping an obstructive picket.
- The Full Court of the Federal Court issued a significant decision regarding maximum term contracts.
- There has also been a number of decisions involving Sydney Trains and NSW Trains, which have tested the new multi-enterprise bargaining laws.
We also have plenty to report regarding various Fair Work Commission updates, work health and safety updates, a new ATO ruling on superannuation and Transport Industry updates.
From the entire Workplace Relations & Safety team at KHQ, we wish you a happy and safe holiday break!
The KHQ Workplace Watch will be back in 2025.
FAIRWORK COMMISION UPDATES
Commission approves supported bargaining agreement
The Full Bench of the Fair Work Commission has approved the Early Childhood Education and Care Multi-Employer Agreement 2024-2026. This supported bargaining agreement covers 60 employers and over 12,000 employees in the early childhood education and care sector. Employee pay is reported to increase by 15% over two years under this deal.
The Full Bench is yet to publish the full reasons for its decision, however the agreement will operate from 17 December 2024.
The Fair Work Commission has set up an agreement page which is available here, which includes details for how applications may be made to vary the agreement to include new employers and their employees.
A copy of the decision is available here.
The United Workers’ Union has predicted that additional employers in the sector will likely be roped-in to this agreement in due course.
The Fair Work Commission publishes Registered Organisations Education Activities Calendar for 2025
The General Manager of the Fair Work Commission has published the Registered Organisations Education Activities Calendar for 2025 which sets out the resources and activities that the Fair Work Commission will produce in the next 12 months.
The calendar is available here and the Fair Work Commission’s media release is available here which also includes a link to the Registered Organisations Education and Engagement Strategy 2024–25.
Fair Work Commission publishes factsheet on Obstructing the administration of the CFMEU Construction & General Division
The Fair Work Commission has published a factsheet setting out the types of conduct that may breach the anti-avoidance provisions of the administration scheme of the Construction and General Division of the Construction, Forestry and Maritime Employees Union provided by the Fair Work (Registered Organisations) Act 2009.
The factsheet is available here as well as on the Commission’s Report a concern about the CFMEU Construction and General Division webpage here.
Timetable set for Annual Wage Review 2024-25
The President of the Fair Work Commission, Justice Hatcher, has issued a statement setting out the timetable for the 2024-25 annual wage review which reviews and sets the national minimum wage.
The statement also states that submissions regarding the draft research program for the 2024-25 review should be made by Monday, 23 December 2024.
A copy of the statement is available here.
Statement in Textiles Award variation application
The Fair Work Commission issued a statement in the application by Ai Group to vary the Textile, Clothing, Footwear and Associated Industries Award 2020 to correct an error relating to the payment of shiftworker rates. Deputy President Easton previously decided to give effect to the proposed variation to the award, which will have retrospective effect. The recent statement outlines an additional proposed clause to the variation which, in effect, protects employees from being required to repay night shift or afternoon shift payments made since 1 February 2021, despite the retrospective variation.
Interested parties have until 20 December 2024 to file any response to the draft determination.
A copy of the statement is available here.
Full Bench issues statement in Clerks Award working from home variation
The Full Bench of the Fair Work Commission has issued a statement in the Commission’s application to vary the Clerks―Private Sector Award 2020 to include working from home provisions. The statement noted that the parties were supportive of surveys being conducted for employers and employees. The Commission confirmed that it will identify a supplier to conduct the employer and employee surveys and that parties will be invited to comment on the draft survey questions.
A copy of the statement is available here.
CASE UPDATES
High Court rules on damages for psychiatric injury caused by breach of contract
The High Court has confirmed that an employer can be liable for damages associated with a psychiatric injury arising from the manner of the employee’s dismissal.
The employee, Mr Elisha, was dismissed by his employer, Vision Australia, following an incident. Vision Australia investigated the alleged incident and decided to prefer the account of another witness over the employee’s own version of events. The employee was dismissed. He then was diagnosed with a major depressive disorder.
The trial at first instance resulted in the former employee being awarded nearly $1.5 million in damages, arising from Vision Australia’s failure to strictly follow its Disciplinary Procedure, which was incorporated into the Mr Elisha’s contract of employment.
The Court of Appeal then allowed Vision Australia’s appeal on the basis that damages for psychiatric injury were unavailable for breach of contract and that Mr Elisha’s psychiatric injury was too remote from Vision Australia’s breach.
The High Court found that the Disciplinary Procedure was incorporated into the employment contract and held that psychiatric injury is a class of injury for which damages are recoverable for breach of contract. The majority also found that the psychiatric loss was not too remote because psychiatric injury was a serious possibility within the reasonable contemplation of the parties at the time of the contract.
As a result, the first instance decision was upheld.
Some key points to note from this decision:
- the High Court did not establish a new duty of care for employers to provide a safe system of investigation and decision-making with respect to discipline and termination of employment. The majority of the Court said they did not need to determine that question. Justice Steward (who was outside the majority) confirmed that no such duty was owed;
- this is a simply a breach of contract case. The employment contract incorporated the Disciplinary Procedure. Had the contract not incorporated the procedure (as is standard practice in most employment contracts) or had Vision Australia complied with its procedure, the employer would have likely had no liability; and
- the decision has put to rest the view that Addis v Gramophone Co Ltd (a House of Lords decision from 1909) precludes an employee from recovering damages for the serious psychiatric illness caused by an employer’s breach of contract.
See link to the High Court decision in Elisha v Vision Australia Limited [2024] HCA 50 here and the judgment summary here.
Full Court confirms no ‘dismissal’ when employment contract expired
The Full Court has dismissed an appeal against the decision of Justice Raper in Alouani-Roby v National Rugby League Ltd [2024] FCA 12. This is the latest judgment in a series of appeals following a decision in the Fair Work Commission that Mr Alouani-Roby’s employment with the NRL had not come to an end because he was dismissed, but rather through the expiry of the term of his employment contract.
The Federal Court decision was important as it considered the application of s. 386(2)(a) of the Fair Work Act to outer limits contracts that are also terminable upon notice (often referred to as “maximum term contracts”).
The Full Court said at [52] – [55]:
“… we think that the import of the words in which s 386(2)(a) of the FW Act is expressed is appreciably clear: a contract that is expressed, whether subject to other rights or not, to run for a nominated term is, for the purposes of s 386(2)(a) of the FW Act, a contract for a specified period; and remains as much notwithstanding that it might lawfully be brought to end otherwise than by (which is to say, before) the expiry of that period. If we are wrong about that and s 386(2)(a) of the FW Act permits of alternative constructions, any attendant ambiguity is immediately resolved upon consultation of the explanatory memorandum that accompanied the Fair Work Bill 2008 (Cth) (above, [28]). The intention underpinning the section could hardly have been made clearer: the “…fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)]”.”
“… The statutory purpose underpinning s 386(2)(a) of the FW Act is to exclude from protection for unfair dismissal those whose employment terminates by agreement—rather than by or in response to some unilateral act of an employer—upon the completion of an agreed (and specified) period, task or season. As the learned primary judge noted, exclusion in that sense accords with a reality of the common law, namely that “[a]s a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires”: Victoria v The Commonwealth (1996) 187 CLR 416, 520 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).”
The Full Court’s decision in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 can be viewed here.
Woolworths obtains good faith bargaining orders to stop unlawful picketing
Deputy President Boyce made bargaining orders against the United Workers’ Union. Woolworths successfully argued that the union’s unlawful picket was unfair conduct which undermined collective bargaining.
The orders restrained the union from obstructing the access of four distribution centres, amongst other things. The Deputy President found at [28]:
“I find on the evidence that the UWU has organised, promoted or participated in obstructive picketing at relevant Woolworths’ distribution centres over a number of days. This picketing has prevented access into and out of relevant distribution centres, and is conduct that falls within the ordinary meaning of the terms “capricious” and “unfair”, which has “undermined” freedom of association and collective bargaining. In this regard, I find that the UWU, through its organisation of, and participation in, unlawful picketing (howsoever defined), is placing or attempting to place illegitimate pressure on Woolworths during the bargaining process.”
Deputy President Boyce’s decision in Woolworths Group Limited v UWU [2024] FWC 3428 can be viewed here. The bargaining orders can be viewed here.
Enterprise Agreement not approved due to dispute settlement procedure
The Fair Work Commission has dismissed an application for the approval of an enterprise agreement due to an issue in the dispute settlement procedure.
Specifically, the dispute settlement procedure provided that it applied to “a Pilot or a Pilot’s representative acting on their behalf”. The Australian Federation of Air Pilots (AFAP) argued that this rendered the procedure invalid as it did not comply with s 186(6) of the Fair Work Act 2009 because it did not allow the AFAP to initiate a dispute under the procedure unless they were authorised to do so by a pilot to whom the agreement applied.
Deputy President Roberts concluded at [15]:
“Clause 39.1.3 excludes the capacity of the union to initiate the disputes process of the Agreement in their own right and thereby excises an entire category of disputes from the reach of the DGP in the Agreement. In the circumstances I am not satisfied that the Agreement includes a term that provides for a procedure to settle disputes about any matters arising under the Agreement.”
Because the employer refused to proffer an undertaking to address this issue, the application was dismissed and the enterprise agreement was not approved.
See the decision of Deputy President Roberts in Application by PHI International Australia [2024] FWC 3460 here.
New multi-enterprise bargaining laws tested
In the last fortnight, the Fair Work Commission issued a single interest employer authorisation in relation to a proposed agreement covering Sydney Trains and NSW Trains. The effect of the authorisation was that Sydney Trains and NSW Trains are now required to bargain for a multi-enterprise agreement. Ultimately, the employers did not oppose the making of the single interest employer authorisation.
Immediately after the Commission issued the authorisation, however, Sydney Trains and NSW Trains applied to the Federal Court for an urgent injunction to restrain the unions from proceeding with the proposed protected industrial action that had previously been notified. The employers argued that the notified action was no longer protected under the Fair Work Act 2009 because a single-interest employer authorisation had now been made. The Federal Court issued the interim injunction.
The unions and individual bargaining representatives then applied for new protected action ballot orders, which were opposed by Sydney Trains and NSW Trains.
The single interest employer authorisation can be viewed here, and Commissioner Crawford’s decision in [2024] FWC 3419 here.
Justice Perram’s decision restraining the bargaining representatives from organising industrial action in [2024] FCA 1411 is available here.
Commissioner Crawford’s decision regarding the applications for a protected action ballot order in RTBU & Ors v Sydney Trains & NSW Trains [2024] FWC 3451 is available here.
SUPERANNUATION UPDATE
ATO – Amendments to ATO ruling about employees for SG purposes
On 11 December 2024, ATO released the final version of an addendum to Taxation Ruling 2023/4: Income tax and superannuation guarantee: who is an employee? (previously called Income tax: pay as you go withholding – who is an employee?). The addendum includes guidance in Appendix 2 ‘on when a person is considered to be an ‘employee’ under section 12 of the Superannuation Guarantee (Administration) Act 1992 (SGAA)’.
The ATO has explained that Appendix 2:
- assists the community by confirming the ATO’s view in light of developments in case law in the context of the SGAA since SGR 2005/1W Superannuation guarantee: who is an employee? (withdrawn) was last updated;
- consolidates the ATO’s view in respect of the common law definition of employee contained in SGR 2005/1 (withdrawn) and TR 2023/4;
- provides a holistic ATO view of the common law meaning of employee and extended meaning of the word as contained in the SGAA.
Appendix 2 replaces the withdrawn Superannuation Guarantee Ruling 2005/1 Superannuation guarantee: who is an employee? which was withdrawn with effect from 26 June 2024.
The taxation ruling is available here.
WHS UPDATE
Safe Work Australia publishes its work health and safety and workers compensation trend analysis
Safe Work Australia has published a Jurisdictional Comparison dashboard for 2022-2023, which provides trend analysis data on WHS performance, WHS compliance and enforcement activities, workers’ compensation premium rates, funding ratios and workers’ compensation disputes.
The dashboard is available here and the Safe Work Australia media release is available here.
Safe Work Australia launches new reporting tools
Safe Work Australia has launched new tools to help explain work health and safety reporting and performance data and assist employers in benchmarking workers’ compensation injury frequency rate data.
The new tools are intended to replace the existing Lost Time Injury Frequency Rate calculator.
The new work health and safety data reporting page is here and the Safe Work Australia media release is available here.
Consultation open for proposed reduction in aluminium (welding fumes)
Safe Work Australia has published a review which recommends a reduction to the Workplace Exposure Standards for aluminium welding fumes from an 8-hour time weighted average of 5mg/m3 to 1mg/m3.
Submissions can be made up until 28 February 2025.
The report and information regarding consultation is available at the Consultation Hub here and the Safe Work Australia media release is available here.
Fair Work Commission sets aside decision of Comcare Inspectors
The Fair Work Commission has issued a rare decision regarding Provisional Improvement Notices (PINs) under the Work Health and Safety Act 2011 (Cth) (WHS Act).
A Health and Safety Representative (HSR) issued two PINs under s 90 of the WHS Act against Australia Post Corporation (APC), requiring the employer to improve its manual handling practices at a post office, and eliminate manual handling risks at its customer’s premises.
APC requested the regulator, Comcare, to review the two notices. That review resulted in both PINs being cancelled. Comcare upheld that decision following an internal review requested by the HSR.
The HSR then took the dispute to the Fair Work Commission under s 229 of the WHS Act.
Deputy President Slevin decided:
“[80] Having determined that I share [the HSR’s] reasonable belief that the duty in s. 19 is not being complied with and that it is likely that the contravention will continue, I am of the view that it is consistent with the subject-matter, scope and purpose of WHS Act to require APC to minimise risks to health and safety at the Four x 4 Spares site and eliminate the manual handling risks associated with van pick-ups by taking the reasonably practicable step of ceasing to collect all parcels by van and instead replace the van service with a truck service. I find that the correct and preferable decision is to require APC to minimise the risks associated with the manual handling of parcels at the Four x 4 site by replacing the van service with a truck service.”
The Commission’s decision set aside that of the Comcare Inspectors, determined that APC replace certain van services with truck services, directed APC to liaise with Comcare to ensure any health and safety risks associated with the introduction of the truck service be minimised and all steps necessary to make the change should be completed by 20 January 2025, with the new truck service to commence by 1 February 2025.
A link to Deputy President Slevin’s decision in Delany v Comcare & Australia Post Corporation [2024] FWC 3482 is here.
TRANSPORT INDUSTRY UPDATES
Minister makes Road Transport Code Instruments
The Minister for Employment and Workplace Relations, Senator the Honourable Murray Watt, made two legislative instruments as required by the Closing Loopholes reforms.
The Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 was made on 3 December 2024 and comes into effect on 25 February 2025, creating the Digital Labour Platform Deactivation Code as required by s. 536LJ of the Fair Work Act 2009.
The Digital Labour Platform Deactivation Code creates a process for digital platforms seeking to deactivate “employee-like workers” from their platform. The Fair Work Commission is required to consider whether a person was deactivated from a digital platform consistent with the Digital Labour Platform Deactivation Code when determining whether the person was unfairly deactivated.
The Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 is available here.
The Minister also made the Fair Work (Road Transport Industry Termination Code) Instrument 2024 on 3 December which has effect from 25 February 2025, creating the Road Transport Industry Termination Code required by s. 536LN of the Fair Work Act 2009.
The Road Transport Industry Termination Code sets out the process for terminating regulated road transport contractors and the Fair Work Commission will consider whether the process set out in the code was followed when determining whether a road transport contractor was unfairly terminated.
The Fair Work (Road Transport Industry Termination Code) Instrument 2024 is available here.
The Minister’s media release is available here.
Update regarding applications for Minimum Standards Orders
The Fair Work Commission has issued an update regarding the three applications for minimum standards orders lodged by the Transport Workers’ Union (TWU), a fourth application for a contractual chain order and Menulog’s application to make a modern award to cover the on demand delivery services industry.
The President of the Fair Work Commission, Justice Hatcher, issued a statement after he sought advice from the Road Transport Advisory Group (RTAG) in how to prioritise the applications and how the RTAG proposed to conduct itself more generally.
The RTAG provided its advice on 11 December 2024 which has been published on the Commission’s website and parties are invited to make submissions regarding the advice and further steps by 23 December 2024.
The Commission’s major case page is available here, the RTAG advice here and the President’s statement and directions are here.
