Latest news

  • Minimum wage increase

The Fair Work Commission’s Minimum Wage Panel recently decided to increase the national minimum wage including all modern award rates by 3.5% effective 1 July 2018 based on the “economic indicators now pointing more unequivocally to a healthy national economy and labour market ”.

Moving forward, employers need to ensure that any applicable instrument, including individual flexibility agreements or enterprise agreements meet the ‘better off overall’ test against the increased rate. To read the summary of decision, click here. 

  • Changes to unfair dismissal criteria and filling fee increase

The following changes will commence on 1 July 2018:

  1. the high-income threshold in unfair dismissal cases will increase to $145.400 (currently $142,000);
  2. the compensation cap will increase to $72,700 (currently $71,000) for post July 1 dismissal claims; and
  3. the filing fee for dismissal, unlawful termination, general protections and anti-bullying applications will increase to $71.90 per application.
  • Launch of Online General Protections Benchbook

The Fair Work Commission has launched an interactive online version of the general protections benchbook on 18 June 2018. This is a helpful resource for businesses as it clearly explains workplace rights protected under s 340 of the Fair Work Act 2009 (Cth) and provides case summaries applying relevant principles. To review the benchbook, click here. 

Latest decisions

  • Managing HR risks associated with unfair dismissal claims

Mr Cheek, who was a project manager specialising in the installation of audio visual and IT equipment, argued that his dismissal was “harsh, unjust or unreasonable” because he was not afforded an opportunity to respond to any allegations prior to being dismissed and he was handed a pre-ordained termination letter, prepared and signed prior to the meeting.

The reasons for Mr Cheek’s dismissal provided by the employer was due to unsatisfactory performance including failing to communicate with his manager or key clients regularly and unacceptable project management behaviours. Commissioner Riordan identified and commented on the inaction by the experienced HR professional (over 20 years’ experience) for “failing to investigate, clarify or substantiate any of the responses” raised by Mr Cheek including allegations of workplace bullying. Commissioner Riordan found that the extent of HR’s advice to Mr Cheek at two performance meetings to simply “improve his relationship with the director”, was unsatisfactory and impossible when the director refused to talk to or even acknowledge Mr Cheek. In light of the circumstances, the dismissal was found to be unfair and unreasonable. To read the full decision, click here.

  • Criteria for approving Enterprise agreements

In a recent appeal decision, the Full Court of the Federal Court has held that a proposed enterprise agreement had not been “genuinely agreed” to by the employees, as the employer failed to take “all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees” as prescribed by section 180(5) of the Fair Work Act 2009 (Cth) (FW Act). 

One Key Workforce Pty Ltd made an agreement with three employees, which was capable of covering a group of employees who would otherwise be covered by 11 different awards. Section 180 of the FW Act prescribes the criteria to be satisfied before the Commission may approve a proposed enterprise agreement. The Full Court held that the Commissioner could not have been satisfied, on the basis that it had no knowledge of what was said to the three employees before they had casted their vote, absent any evidence or further inquiry by the Commission.  The only evidence before the Commission with regard to the advice provided to the employees was a short statutory declaration referring to telephone calls and an explanatory email which was held to be insufficient. To read the full decision, click here.

  • Unfair dismissal considerations not deemed incumbent on employers

Mr Brian, who had been employed by Nyrstar Hobart Pty Ltd for 37 years as a plant operator argued that he was unfairly dismissed when the employer dismissed him for having breached company safety rules by removing a “person in control tag”, placing himself and others in a potentially life-threatening situation.  Notwithstanding the fact that Deputy President Barclay found that the safety breach was a reason for dismissal, he held that the employer should have afforded Mr Brian an opportunity to make submissions to the proposed sanction of dismissal as it was incumbent on the employer to hear from the employee before imposing the sanction. 

On appeal however, the Full Bench of the Fair Work Commission found that the Deputy President erred in his conclusion and that he “fettered the exercise of his discretion in a manner not authorised by the Fair Work Act 2009 (Cth) (FW Act), because s 387 of the FW Act does not stipulate criteria that must be satisfied in order for a dismissal to be fair or unfair. Nor does it authorise the Commission to develop or apply its own criteria”.  Rather, the considerations listed in s 387 of the FW Act may be “considered relevant and taken into account, and it may be counted against the employer in an unfair dismissal hearing…but it is not to be regarded as a rule”. To read the original decision click here.

To read the appeal decision click here.