Update – Delay to changes to late night penalties; VP Watson delivers his decision declining family and domestic violence leave in Modern Awards ahead of the Full Bench decision; Employee’s bid for reinstatement under workers compensation legislation fails; Update – Variations to the Section 173 Notice of Employee Representational Rights; Inappropriate and discriminatory – What questions should employers ask candidates during job interviews?; Refusal to employ applicant with back condition was adverse action by the AFP.
“Delay to changes to late night penalties”
In our last Employment Law E-Update we reported on the Fair Work Commission (FWC) decision about penalty rates.
The February decision varied the hours when the early/late night work penalty would apply under the Fast Food Industry Award 2010 and the Restaurant Industry Award 2010 from 27 March 2017.
On 17 March 2017, the FWC made a decision to delay the early/late night work penalty changes to 1 July 2017, when changes to public holiday penalty rates take effect, to provide greater consistency.
Accordingly, employers covered by the Fast Food Industry Award 2010 and the Restaurant Industry Award 2010 are not required to make any changes with respect to penalty rates until 1 July 2017.
“VP Watson delivers his decision declining family and domestic violence leave in Modern Awards ahead of the Full Bench decision”
4 yearly review of modern awards – Family & Domestic Violence Leave Clause  FWCFB 1133
In his final decision before retiring, Vice President Watson issued his findings about the Australian Council of Trade Unions (ACTU) proposed family and domestic violence leave clause.
VP Watson rejected the ACTU’s proposal to include the draft clause in all Modern Awards.
The final outcome of the ACTU’s proposal depends on the outstanding decisions of two other Fair Work Commission (FWC) Members, Deputy President Gooley and Commissioner Spencer.
Under the Fair Work Act 2009 (Cth) (FW Act) the FWC must undertake a four yearly review of Modern Awards, which involves hearing submissions regarding proposed changes to the Modern Awards.
In 2014, the ACTU identified family and domestic violence leave as an issue for consideration as part of the four yearly review of Modern Awards.
The ACTU proposed that a clause allowing for family and domestic violence leave should be inserted into all the Modern Awards.
In summary, the ACTU’s draft clause proposed:
- 10 days of paid family and domestic violence leave;
- 2 days of unpaid family and domestic violence leave once the paid entitlement is exhausted;
- That family and domestic violence leave may be accessed for the purpose of attending to activities related to the experience of being subjected to family and domestic violence;
- That the full amount of family and domestic violence leave will be available on commencement of employment;
- That family and domestic violence leave will be payable at an employee’s ordinary rate of pay;
- That family and domestic violence leave will not accrue from year to year;
- That family and domestic violence leave will not be payable on termination of employment; and
- That an employer may require evidence that the leave is being accessed for a required purpose.
The ACTU filed an outline of its claim with the FWC in 2014 and over the following two years, the FWC heard the matter and received submissions. Final oral submissions were heard by the FWC in December 2016.
Arguments for and against the draft clause were received from a range of parties including unions, employer groups and lay persons.
All parties acknowledged the significance of family and domestic violence as a pervasive societal problem but disagreed as to the impact and necessity of inserting a family and domestic violence leave clause into all Modern Awards.
Decision of Vice President Watson
VP Watson said that, in reviewing the Modern Awards, the FWC must have regard to their objective and consider whether the Modern Awards, together with the National Employment Standards (NES) actually provide a fair and relevant minimum safety net of terms and conditions.
VP Watson briefly summarised the history of award modernisation as it concerned recognising additional categories of leave beyond those contained in the NES. VP Watson highlighted that throughout the award modernisation process the FWC repeatedly declined to insert specific types of leave into the Modern Awards, instead preferring for the minimum safety net of leave entitlements to be contained in the NES. VP Watson noted that the FWC’s approach in this sense ensured that the NES entitlements were not complicated (as per the Modern Award objective to make the awards simple and easy to understand). VP Watson was of the view that in this case, it was not appropriate to depart from that clear approach.
VP Watson recognised the significance of domestic and family violence and the importance of the workplace in assisting to address the overall problem. However, he considered it more appropriate that individual employers work on an informal basis with employees to assist them if they are experiencing domestic violence. He said consideration and flexibility are more likely to encourage productivity than an unsympathetic approach. Taking leave pursuant to a right to do so could adversely affect efficiency and productivity more than mutually accepted approaches.
VP Watson agreed with the employer groups who had submitted to the FWC that the cost of the domestic and family violence leave could not accurately be assessed on the material before the FWC. He noted that the problems arising from this kind of uncertainty, including the precise reach of the proposed entitlement, would be magnified in small business. VP Watson said that it would be undesirable for a new form of leave to be made available if its application was uncertain and commented that if the costs to a business could be significant, the costs to the economy could also be significant.
It was VP Watson’s view that:
... the grant of a new form of leave in itself will have uncertain consequence. A better approach is to build awareness of the issue and to encourage a considerate, collaborative and flexible approach by employers and affected employees.
VP Watson concluded by stating that he was not satisfied in all the circumstances that the domestic and family violence leave claim by the ACTU was necessary to provide a fair and relevant minimum safety net of terms and conditions. As a result, the ACTU’s claim should be rejected.
VP Watson delivered his decision in advance of the rest of the Full Bench due to his retirement. The final outcome of the ACTU’s claim is yet to be decided and will depend on the decisions of Deputy President Gooley and Commissioner Spencer. We will keep you informed in future E-updates about these decisions.
“Employee’s bid for reinstatement under workers compensation legislation fails”
Schobbe v ANZ Banking Group Limited  NSWIRComm 1005
An employee’s attempt to be reinstated failed because the termination of her employment was due to her persistent disregard for her employer’s directions, not because of a work-related injury.
In 2006 the employee commenced work for her employer as a Service Consultant. Between 2006 and September 2014, the employee took numerous periods of sick and personal leave, much of which was unpaid.
The employee regularly failed to comply with the employer’s policies and procedures in relation to notifying her manager that she would be taking leave, the reasons for taking leave and providing evidence to support her taking sick leave.
In December 2013, following several periods of absence, the employer requested that the employee undergo a medical assessment to ascertain whether she was fit for work. The occupational physician who examined the employee believed that only half the personal and sick leave taken by the employee was warranted.
Following this assessment, a senior employee relations advisor and the employee’s manager met with the employee to discuss the occupational physician’s report and the employer’s expectations in regards to the taking of leave. The employee was sent a follow-up email confirming what policies and procedures were to be followed when taking personal and/or sick leave.
The employee continued to take sick leave and repeatedly failed to follow the directions given to her in the meeting and the email in December 2013.
In March 2014, another meeting was held and the employee was reminded of the employer’s expectations regarding the taking of sick and personal leave. The employee was put on notice during this meeting that her actions were placing her employment at risk.
The employee claimed that she felt bullied and harassed.
In April 2014, the employee was issued with a final written warning in relation to her failure to comply with the reasonable directions of her employer with respect to the employer’s sick leave policy.
Between 1 April and 4 September 2014 the employee took a further 50 days of leave, most of which was unpaid. The employee continued to fail to comply with the employer’s directions about the proper procedures for taking sick and personal leave.
On 16 September 2014, the employee was asked to attend a formal meeting to discuss her absences. On the same day, the employee visited a doctor and complained of feeling stressed because of the way she was being treated at work.
On 18 September 2014 a meeting was conducted. During the meeting a number of allegations were put to the employee about her absences and her failure to comply with her employer’s directions. The employee was given the opportunity to respond to those allegations. It was ultimately decided that the employee’s employment would be terminated, effective 22 September 2014.
On 3 October 2014, the employee lodged a workers’ compensation claim alleging that she suffered a work-related psychological injury. That claim was settled by way of consent orders on 7 March 2016.
The employee then made an application to the NSW Industrial Relations Commission (NSW IRC) under section 242 of the Workers Compensation Act 1987 (NSW) (WC Act) seeking reinstatement. The employee claimed that her employment was terminated because she was not fit for employment due to a work-related injury – her psychological injury.
Decision of the NSW IRC
The NSW IRC rejected the employee’s claim.
The NSW IRC said that at the time of the dismissal, the employer did not know that the employee was suffering a work-related psychological condition because she had not made a workers’ compensation claim at that time and had not informed any managers or other employees about a work-related psychological injury.
Whilst the employee may have made complaints of stress or depression to other employees, she did not, at anytime, indicate that these complaints were work-related.
The NSW IRC found that termination of the employee’s employment was in no way related to a psychological injury sustained by the employee. It was entirely due to the employee’s own conduct, in particular, her repeated failure to follow the directions of her employer. Accordingly, the employee’s application was dismissed.
Comment – what can your business learn from this decision?
Employers should have properly documented and carefully thought out reasons for terminating an employee’s employment.
In applications for reinstatement under section 242 of the WC Act, there is a rebuttable presumption that the injured worker was dismissed because they were not fit for employment as a result of the injury.
The onus is on the employer to prove that the injury was not a substantial and operative cause for the termination of the employee’s employment. A properly documented termination process can go a long way to discharging this onus.
"Update – Variations to the Section 173 Notice of Employee Representational Rights”
At the beginning of the enterprise bargaining process, an employer is required to provide employees with a Notice of Employee Representational Rights (NERR).
The Fair Work Act 2009 (Cth) (FW Act) makes it clear that the NERR must contain the content prescribed by the Fair Work Regulations 2009 (Cth) (FW Regs).
From 3 April 2017, the changes to the NERR will be:
- The removal of the references to the Fair Work Commission’s (FWC) website and the Infoline telephone number.
Instead, the NERR will advise that the recipient can contact the Fair Work Ombudsman’s website as well as the employer, bargaining representative or the FWC.
The new version of the NERR, effective 3 April 2017, will read:
If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.
- The legislative reference in the first paragraph of the NERR will refer to section 174(1A), rather than section 174(6) of the FW Act.
In our September 2016 Employment Law E-Update we reported on a Full Bench of the FWC decision, which reminded employers that there was no scope for discretion in relation to deficient NERRs.
As a result of the FWC’s strict view, NERRs have been ruled invalid, which has led to enterprise agreements not being approved and as a result, parties must recommence the bargaining process.
Employers are reminded that they should always use the most recent version of the NERR from the FWC website.
“Employees walking off building site fined $1,000 each for unlawful industrial action”
Australian Building and Construction Commissioner v Mamudi  FCA 134
- Employees fined $1,000 each for unlawful industrial action.
- The Fair Work Act 2009 (Cth) (FW Act) permits lawful industrial action in specific circumstances.
In February 2015 a building contractor who was responsible for the construction of the concrete and the below-ground piping was engaged to perform civil, structural, mechanical and piping work.
This building contractor was the main contractor on the project site with a total workforce of between 100 and 130 employees.
On 20 February 2015 union officials from the CFMEU and the AMWU attended the project site and addressed people (who included employees of the building contractor) outside the front gate.
At the conclusion of the address the employees voted by a show of hands in favour of leaving work for the day.
Prior to the address, a number of union officials were seen distributing a bullying survey to employees of the building contractor.
The 23 employees of the building contractor left the project site and did not return to work for the day. There was no authorisation by the building contractor for its employees to be absent that day.
As a result of the employees leaving the site, the scheduled concrete pour did not proceed and delayed progress by one day.
The Unions argued that the reason the employees walked off the site was because of their welfare concerns – specifically, alleged harassment and intimidation.
Proceedings were commenced against the 23 employees on the basis that they had contravened the sub-section 417(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) by failing or refusing to attend for work, or by failing or refusing to perform any work and had engaged in unlawful industrial action.
Sub-section 417 of the FW Act relevantly states:
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed ...
(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; ...
Prior to the hearing, the parties reached an agreement, which included the employees admitting they had engaged in unlawful industrial action.
Justice Siopis found that the industrial action did not cause any pecuniary loss to the building contractor, however, it was noted that there was a delay caused to the concrete pour by one day.
Justice Siopis confirmed that the employees conduct was deliberate as they had all consciously decided to withdraw their labour on 20 February 2016 and the withdrawal of their labour without prior notice was a contravention of the FW Act.
Taking into account the maximum penalty of $10,200.00 and the relevant factors in this matter, Justice Siopis ranked the employees’ conduct at the lower range of seriousness – as labour was withdrawn for only one day and did not cause damage to their employer.
Justice Siopis accepted that the employees had cooperated with the Australian Building and Construction Commissioner and admitted their liability early in the proceedings. Despite this, he explained that a penalty must be imposed for both specific and general deterrence.
In these circumstances, Justice Siopis ordered each of the employees to pay a pecuniary penalty of $1,000.
Comment – what can your business learn from this decision?
The above decision is not the first time that a Court has found in favour of the employer in relation to the taking of unlawful industrial action.
Bullying / Harassment / Discrimination
“Inappropriate and discriminatory – What questions should employers ask candidates during job interviews?”
For employers, the interview stage in the recruitment process can often be a lengthy exercise. For busy HR departments and recruiters, it is important that the recruitment process is carefully planned, with due consideration of legal responsibilities and obligations, to avoid the potential minefield of legal risks, including adverse action or discrimination claims.
Why interview candidates?
The interview is an important step, as it provides both parties an opportunity to sell themselves or their brand.
The interview should be the opportunity for the employer to assess whether the candidate demonstrates the skills and experience they purported to have on paper and to find out a bit more about the candidate to determine workplace fit and if they match the organisation’s values – i.e. can we work with the candidate?
On the other side, the candidate wants to know more about the position and the organisation and will want to try to gauge whether they will be able to fit into the workplace, all whilst they are trying to make a good impression.
What should not be asked during the interview?
Risks can arise if employers or interviewers ask questions of candidates that are inappropriate and/or potentially discriminatory.
The Fair Work Act 2009 (Cth) (FW Act) provides that a prospective employer must not take adverse action against a prospective employee because of a particular attribute. The attributes listed under section 351 of the FW Act include race, sex, age, physical or mental disability, family or carer’s responsibilities or social origin.
Employers should be aware that, in Australia, discrimination based on certain attributes is prohibited by Federal and State anti-discrimination laws. These laws extend to discrimination in employment, and provide that it will be discriminatory to treat a person less favourably based on a protected attribute. For example, it will be potentially discriminatory to ask a candidate what is the origin of their surname, or if they are planning to have children soon.
In some jurisdictions however, such as in Queensland, under the Anti-Discrimination Act 1991 (Qld) and in Victoria under the Equal Opportunity Act 2010 (Vic), employers are also prohibited from asking candidates to provide unnecessary or discriminatory information that could be used to form the basis of discrimination against the candidate.
For example, in Gardener v Norcott  QADT 39, Mr Gardener called the Employer to enquire about an advertised position as a chef in a café. Mr Gardener claimed that in this phone call, Ms Norcott, the owner of the café, asked him how old he was, to which he simply responded that he was over 21 years of age. Mr Gardener then visited the café to drop off his resume and to discuss the role. Mr Gardener claimed that Ms Norcott again asked how old he was and stated that she had a young team. Ms Norcott denied that in the phone conversation she asked Mr Gardener how old he was. Instead Ms Norcott claimed that she asked whether he was a junior or senior.
The Queensland Anti-Discrimination Tribunal (the Tribunal) preferred the evidence of Mr Gardener and found that Ms Norcott directly asked him how old he was. The repeated request to Mr Gardener about his age was found to be a request for information on which unlawful discrimination might be based.
The Tribunal determined that Ms Norcott directly discriminated against Mr Gardener by treating him less favourably than a younger person in determining who should be offered the chef position and was ordered to pay Mr Gardener the sum of $2,500.
Beware of the “icebreaker”
There is a fine line for employers between asking questions in an effort to “break the ice” with a candidate and asking unlawful and/or discriminatory questions.
For example, in Bair v Goldpath Pty Ltd & Callinan  QCAT 483, the Employer submitted that a question to Mr Bair asked during an interview for a warehouse/store person position about whether he had any children was part of an informal discussion and was a way to encourage the interviewees to relax during the interview, as most people like to talk about their children.
In addition to asking about his parental status, Mr Bair was asked for his date of birth and the number of sick days he took in his previous employment. Mr Bair lodged a complaint about the questions he was asked and argued that these questions were requests for information on which unlawful discrimination might be based, in contravention of section 124 of the Anti-Discrimination Act 1991 (QLD) and that he was discriminated against.
The Tribunal held that in relation to the questions about Mr Bair’s age and parental status “there was no justifiable basis upon which these questions could reasonably be required for a purpose that did not involve discrimination”.
However, the Tribunal ultimately determined that Mr Bair was not directly discriminated against on the ground of his age and/or his parental status as the position was offered to a candidate with greater and relevant skills.
The Tribunal noted that the Employer was a small business, with a lack of experience in human resources training that had failed to update its policies and procedures to ensure compliance.
The Employer was ordered to provide a written apology to Mr Bair.
How should an interview be structured?
As was the case with Mr Bair, what may seem to be an innocuous question to get to know the candidate or to ease a nervous candidate, such as, “what is the origin of your surname?” could give rise to legal risk for employers.
Questions asked in job interviews should be limited to those relating to the position, for example, the skills the successful candidate will be required to perform or the experience the candidate has which matches the role.
Job candidates should not be asked inappropriate questions, such as those about the suburb he or she lives in, what their partner does for employment or what school their children go to. This line of questioning is irrelevant to the role, inappropriate and unnecessary to the determination of whether the candidate has the required skills and experience to perform the position.
This is where preparation of questions to be asked is of notable importance.
Employers and interviewers should take the time to prepare in advance and set clear assessment criteria for interviews which is to be applied consistently to avoid any unconscious bias.
Employers may wish to frame the interview by initially asking non-threatening and appropriate questions of the candidate, such as, “what football team do you support?” Another approach to determine workplace fit could be achieved by asking the candidate what they do for fun or how their friends would describe them, before commencing with the position-specific questions.
The interview should be used as an opportunity for employers to attract the right person for the job by asking the right questions rather than scaring off the right person by asking the wrong questions.
Employers should ask questions which focus on the position rather than personal questions, to avoid falling foul of Australia’s anti-discrimination legislation.
Unfair Dismissal / Adverse Action
“Refusal to employ applicant with back condition was adverse action by the AFP”
Shizas v Commissioner of Police  FCA 61
- The Applicant applied to be a police officer with the Australian Federal Police (AFP) on two occasions. These applications were declined due to the Applicant suffering a back condition.
- The Court determined that both decisions to not employ the Applicant were “adverse action” because the Applicant suffered from a physical disability but the second decision was made using the “inherent requirements” defence provided in the Fair Work Act 2009 (Cth) (FW Act).
On a number of occasions between 2009 and 2012 the Applicant applied to become a police officer with the AFP. He obtained a conditional offer of employment in response to an application lodged in April 2012 but failed to progress further, due to being diagnosed with ankylosing spondylitis (a disease which causes inflammation and pain in the spine and other joints). In March 2013 the Applicant was contacted by Ms Sally Ayers from AFP Recruitment, who advised that he had not passed the medical stage of the process and accordingly, his application for employment was rejected.
The Applicant lodged a complaint with the Australian Human Rights and Equal Opportunity Commission (AHRC). It was at this time that Assistant Commissioner of Police, AC Connelly became involved and undertook a review of the AFP’s denial of medical clearance to the Applicant. In July 2014 AC Connelly advised the Applicant that he had reviewed the AFP’s initial decision and decided not to give medical clearance.
The Applicant withdrew the AHRC complaint and lodged an application with the Federal Court. The Applicant claimed discrimination under section 351 of the FW Act, specifically, that the Commissioner of the AFP had taken adverse action because of his condition of ankylosing spondylitis. The Applicant alleged that he was a prospective employee and that the Commissioner refused to employ him twice – initially in March 2013 and a second time in July 2014.
Decision of the Federal Court
The Applicant contended that by refusing to employ him, the Commissioner contravened section 351 of the FW Act, which relevantly prohibits an employer from refusing to employ a prospective employee because of that person’s physical disability.
Section 351 of the FW Act states:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
An exception exists in section 351(2) of the FW Act, based upon the “inherent requirements” of a particular position. The inherent requirements of a position will vary depending on what the job is and may include the ability to perform tasks which are essential to perform a job productively and to the required quality and the ability to work safely.
Section 342 of the FW Act defines “adverse action” and relevantly includes a refusal by a prospective employer to employ.
The Applicant claimed that both decisions (the initial decision in March 2013 and the subsequent decision in July 2014) were made because of his ankylosing spondylitis condition.
The essential question to be decided was whether the Commissioner of Police refused to employ the Applicant because of his disability. The burden was on the Commissioner to prove that he did not refuse to employ the Applicant for this reason, or reasons that included that reason (Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 249 CLR 500).
In relation to the March 2013 decision – the question arose as to who was the decision-maker. Justice Katzmann determined that the decision not to employ the Applicant was communicated to him by AFP Recruitment but Ms Ayers was not the decision-maker. It was suggested that Dr Patricia Batchelor (who advised the AFP on the suitability of applicants for recruitment) was the decision-maker but both Dr Batchelor and AC Connelly denied this.
Her Honour observed that no person identified as the “decision maker” in relation to the March 2013 decision was called as a witness and confirmed the consequence being that unless the person who took the action was identified, it was not possible to determine the reason for the decision. With no decision maker called at the hearing, Her Honour determined that the AFP failed to discharge its burden under section 361 of the FW Act and the presumption in that section followed – that the action as alleged occurred.
In relation to the July 2014 decision to not review the initial decision – the parties agreed that this decision was made by AC Connelly.
It was AC Connelly’s submission that he did not refuse to employ the Applicant because of his ankylosing spondylitis condition but because he faced an “unacceptable risk of injury in the future” and could not undertake operational policing.
Her Honour noted that in relation to the reason for the action, the relevant provisions of the FW Act are directed at the “substantial and operative reasons” of the decision-maker. In Her Honour’s mind it was clear that a substantial and operative concern of AC Connelly was that the Applicant faced a substantially greater risk of injuring his back than did other recruits when carrying out the requirements of operational policing.
Her Honour determined that the Applicant had made out his case for discrimination under section 351(1) of the FW Act. However, Her Honour found that AC Connelly’s action was also taken because of the inherent requirements of the position concerned. Consequently, because of the exception for inherent requirements in section 351(2) of the FW Act, the Applicant failed in relation to the decision in July 2014.
Comment – what can your business learn from this decision?
This decision highlighted the significance of identifying a decision-maker or decision-makers and calling them to give evidence at the hearing – to ensure they can clearly identify the genuine business reasons for the particular action taken (in this case, the refusal to employ). Generally, the lack of a decision-maker will almost always cause a respondent employer to fail under the General Protections provisions of the FW Act.
Need a laugh
Once the pilot started lying about his flying, he went into a tale spin!
"A new study found that most people can't go 10 minutes without lying. But since the study took 20 minutes nobody knows what to believe." – Jimmy Fallon
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