Full Bench finds that wearing campaign material and badges alone is not industrial action; Casual employee compensated for breach of casual conversion clause; No major change for consultation purposes where just 23 out of 3,000+ employees face possible redundancy; Teacher charged and later acquitted of indecent assault was unfairly dismissed; Employee convicted of WHS offence for activity at client’s premises; NSW WCC says workplace gossip
“Full Bench finds that wearing campaign material and badges alone is not industrial action”
Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union
Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire Council  FCWFB 4740
The Full Bench of the Fair Work Commission (FWC) has found that for the purposes of s. 19 of the Fair Work Act 2009 (Cth) (FW Act), wearing union campaign material or badges while still performing work does not constitute industrial action.
Mornington Peninsula Shire Council (Council) and the Australian Municipal, Administrative, Clerical and Services Union (the Union) were bargaining for a number of new Enterprise Agreements.
The Union lodged three Applications for Protected Action Ballot Order (PABOs), which all proposed to the put the same question to the relevant employees.
The question to be voted on in the proposed protected action ballot was whether Council employees should take, in summary, the following industrial actions:
- Not comply with the employer’s restriction on employees making comment or distributing information to third parties including the media and residents;
- Interrupt work to type a statement in all emails sent about the industrial action;
- Perform work while wearing campaign material and/or badges;
- Interrupt or stop work to attach campaign material or badges to clothes worn at work;
- Impose a ban on the performance of work in clothes that don’t have campaign material and/or badges attached;
- Wear casual clothes;
- Impose a ban on wearing a uniform; and
- Impose ban on wearing name badges.
Council objected the making of PABOs on the basis that the types of industrial action listed in the question to be put to employees was not industrial action as defined in the FW Act.
Decision at first instance
Commissioner Bisset considered the matter and made orders that, with the exception of the first item about employees making comment or distributing information, the protected action ballot could go ahead on the terms proposed by the Union.
In relation to that first item, Commissioner Bisset said that industrial action must relate to the performance of work by employees and that the industrial action described did not fall within the scope of the work of employees – but rather it would require employees to perform work they were not normally engaged in or required to do. In Commissioner Bisset’s view, it did not go to the performance of a task differently and so could not amount to industrial action.
In relation the items concerning the wearing of campaign badges or material, Commissioner Bisset held that, in so far as an employer has uniform or clothing requirements, altering the way in which that requirement is adhered to in the workplace amounts to performance of work in a different manner, placing a restriction or limitation on how the work is performed, therefore falling within the definition of industrial action in the FW Act. Accordingly, the Union’s inclusion of these matters in its protected action ballot was acceptable.
Appeal to the Full Bench
Both Council and the Union appealed Commissioner Bisset’s decision.
Council argued that the items concerning the wearing of campaign material or badges while performing work were not industrial action because they did not result in a restriction, limitation or delay in the performance of work.
The Full Bench agreed and commented that where the proposed items did not specify what the consequence of the action would be, those items were not capable of constituting industrial action.
For example, wearing campaign material or badges while performing work does not constitute industrial action because the way in which it will ban, restrict, limit or delay work is not articulated. In fact, it is quite the opposite – employees will continue to work, resulting in no bans, restrictions, limitation or delays.
However, the Full Bench found that where an impact on the performance of work was described, those items did constitute industrial action, such as stopping work to attach campaign material to clothing. This stoppage constitutes a delay in the performance of work and subsequently falls within the definition of industrial action.
The Full Bench allowed the Union’s appeal in relation to Commissioner Bisset’s decision that the industrial action described in the first item was not industrial action as defined in the FW Act but dismissed it on the basis that Commissioner Bissett’s reasoning on this point was sound.
What can your business learn from this decision?
Wearing campaign material or badges alone does not constitute industrial action for the purposes of the definition provided by s. 19 of the FW Act. Performing work whilst wearing such items does not impose a ban or limit, delay or restrict the way that work is performed.
If a ban is put in place preventing work from going ahead unless campaign material or badges are worn, the situation may be different. But, the wearing of campaign material alone is not industrial action.
“Casual employee compensated for breach of casual conversion clause”
Tomvald v Toll Transportation Pty Ltd  FCA 1208
In a significant decision, the Federal Court of Australia has ordered an employer to pay compensation to a casual employee for failing to honour the casual conversation clause in its Enterprise Agreement.
The employee had been engaged on a casual basis for a period of almost a decade and in the 12 months prior to approaching his employer about conversion to permanent employment, he had been working an average of slightly more than 38 hours per week.
The employer offered the employee a part time position for 30 hours per week but the employee rejected this offer.
On reviewing the employee’s employment history and the relevant provisions of the Enterprise Agreement, the Court concluded that the employee should have been offered permanent employment on a like-for-like basis.
The Court commented that:
98. The right which is conferred upon an employee by cl 21(e) is not to be constrained by that which an employer may be prepared to offer. Clause 21(e) confers a valuable right upon a casual employee who can bring himself within the benefit of that clause. That right is not merely a right to convert to a permanent position; it is also a right to convert to a permanent position on a “like for like basis.” It is not a matter within the sole province of an employer to offer less than the right conferred.
What can your business learn from this decision?
An employee’s right to seek casual conversion to a permanent position will be outlined in the applicable Modern Award or enterprise agreement, and employers should review these workplace instruments to understand the extent of their obligations in this regard.
Employers should always comply with the terms and conditions of an applicable enterprise agreement or Modern Award.
The Fair Work Commission has proposed introducing casual conversion to a further 85 Modern Awards, though these changes are yet to be finalised.
Employers should always refer to the most up to date version of their Modern Award to ensure they are applying the correct terms and conditions of employment and are prepared to respond to casual conversion requests as and when such requests are made.
“No major change for consultation purposes where just 23 out of 3,000+ employees face possible redundancy”
Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd  FCA 1246
A proposed change to the managerial structure of one section of the employer’s business was not considered a “major change” for the purposes of consultation.
Accordingly, the employer was under no obligation to consult, let alone consult with employees unlikely to be impacted or their union.
Bupa Aged Care Australia Pty Ltd (Bupa) provides care to clients in aged care residential homes, 26 of which are located in Victoria.
In response to the changes in government funding Bupa proposed a restructure of the managerial structure of each of its 26 homes in Victoria. Each home had one Clinical Manager and one Care Manager. Over time, some functional creep had occurred and those roles were performing administrative tasks in a way that was not intended. Bupa proposed returning the administrative tasks of those roles to administrative employees and combining the remaining duties of those roles into one new role – the Clinical Care Manager.
Bupa informed its Clinical Managers and Care Managers about the proposed change prior to implementing any redundancies.
The Australian Nursing and Midwifery Federation (ANMF) applied to the Federal Court of Australia for orders preventing Bupa from taking steps to implement the proposed changes and orders that Bupa had breached the consultation provisions of its Enterprise Agreement (EA).
The ANMF's position was that the proposed changes would result in redundancies and changes in the composition of the workforce amounting to a “major change”. Under the EA, Bupa was required to consult where a definite decision was made to introduce a major change.
The ANMF argued that Bupa’s consultation obligations had been triggered and it had failed to properly engage in consultation in accordance with its EA. In particular, the ANMF claimed Bupa failed to consult with the Registered or Enrolled Nurses working under the Managers in the homes and failed to take active steps to invite, meet with or respond to requests for information from the ANMF.
The threshold question for the Court to consider was whether the consultation obligations in the EA had actually been triggered.
The ANMF argued that, in addition to the potential redundancies, promotional opportunities were diminished for the Registered and Enrolled Nurses and that the change in managerial structure would result in changes to reporting arrangements for them.
Bupa argued that there would be no changes for the Registered and Enrolled Nurses. Bupa provided evidence from its Chief Operating Officer that there would be no change to the workload, skills required, roles, training, hours or location for the Registered and Enrolled Nurses.
Bupa also argued that the proposed changes should not be considered a major change because the highest possible rate of redundancy (assuming redeployment efforts were unsuccessful) would be 23 employees out of a total of more than 3,000 employees.
The Court agreed with Bupa’s position and found that there was insufficient evidence to support the ANMF's assertion that the proposed changes amounted to a major change. In particular, the Court noted that the ANMF's submission regarding the loss of promotional opportunities was speculative and could not be accepted as fact.
Having found that there was no major change within the meaning of the consultation clause in the EA, the Court found that Bupa had not breached its obligations in relation to consultation.
The ANMF's application was dismissed.
What can your business learn from this decision?
Whether a change in the workplace is a “major change”, which triggers consultation obligations in an Enterprise Agreement or Modern Award, will depend on a range of factors. This may include the total percentage of the workforce effected and the impact on employees.
Speculation from employees or unions about the possible impact of a change is unlikely to be evidence that renders a change a “major change.”
"Teacher charged and later acquitted of indecent assault was unfairly dismissed"
MT v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney  FWC 4722
The Fair Work Commission (FWC) has re-instated a high school teacher who it found to have been unfairly dismissed as a result of losing his Working With Children (WWC) clearance after being charged with indecent assault.
At the time of the dismissal, MT (the Employee) was employed by the high school as a Religious Education Coordinator.
In March 2016, the Employee was called into a meeting with his employer following allegations that he had inappropriately touched a female work colleague on two occasions – in February 2015 and on 21 March 2016. Although he could not remember the incident in 2015, the Employee accepted a finding that he had engaged in serious unprofessional and inappropriate conduct on 21 March 2016 and was issued with a first and final warning.
On 26 May 2016, the Employee was charged with two counts of indecent assault in relation to the two occasions. Upon becoming aware of the charges, the employer sent a letter to the Employee which stated that his employment contract had been frustrated on the basis that he had lost his WWC clearance and could therefore not engage in child-related work and could not perform his obligations as a teacher.
The letter also invited the Employee to a meeting on 30 May 2016 during which the contents of the letter were confirmed to him. The Employee advised his employer during the meeting that he would be pleading not guilty to the charges and offered alternative courses of action, including suspension and leave with or without pay, which the employer rejected.
On 6 February 2017, the Employee was acquitted on both counts.
The Employee lodged unfair dismissal proceedings seeking re-instatement and compensation.
Before the FWC, the employer raised a jurisdictional objection and argued that there had not been any dismissal because the employment contract had been frustrated.
In the alternative, the employer argued that there were valid reasons for the dismissal, including that the Employee:
- Was no longer able to perform his role;
- Had given inconsistent versions of the incident on 21 March 2016 in an effort to downplay its seriousness; and
- Had made admissions in the course of proceedings that constituted valid reasons for dismissal, including possible inappropriate comments made to female staff about their weight and dress, as well as offers of inappropriate physical contact such as acupressure and massages.
Frustration of contract
The FWC found that the employment contract had not been frustrated as a result of the Employee losing his WWC clearance. Even though the Employee was without that clearance, the employer was aware that he intended to plead not guilty. It could therefore not be accepted that further performance of his role was so impossible as to warrant frustration of the contract – it was unknown at worst.
The termination was therefore at the employer’s initiative.
Valid reason for dismissal
The FWC found that the loss of WWC clearance meant that the Employee could not meet a fundamental requirement of his employment for an indeterminate period, which gave rise to an operational difficulty for the employer. This was a sound, defensible and well-founded reason for the dismissal.
In relation to the additional reasons for dismissal, the FWC stated that the employer could no longer rely on the Employee’s conduct in relation to the incident on 21 March 2016 as a reason for dismissal, as it had already been the subject of disciplinary action prior to the dismissal.
The FWC considered the Employee’s admissions in the course of proceedings in relation to possible inappropriate comments and conduct towards other female staff. It determined that these were trivial, albeit in some cases unwise, actions and could not constitute valid reasons for dismissal.
Was the dismissal harsh, unjust or unreasonable?
The FWC found that the employer had decided to terminate the Employee’s employment when it issued him the letter on 26 May 2016, notwithstanding the meeting on 30 May 2016. The Employee had therefore not been given a genuine opportunity to respond to the reasons for his dismissal and was denied procedural fairness.
The dismissal was also found to be particularly harsh and unreasonable because the Employee had offered alternative options to the dismissal, including leave without pay, which would not have been impractical for the employer.
Taking into account the Employee’s otherwise unblemished record and acknowledgement of the inappropriateness of his conduct, the FWC ordered that the Employee be re-instated to his position and that his salary be restored from the date of his acquittal.
What can your business learn from this decision?
Even in circumstances where an employer has a valid reason for dismissing an employee, the FWC may still find a dismissal “harsh, unjust or unreasonable” if the disciplinary process is flawed.
Employers must show they have considered all available options before effecting a dismissal, such as suspension or leave with or without pay, and that the employee has been provided with a genuine opportunity to respond to any allegations made against him or her before a final decision is made about the appropriate disciplinary penalty.
Work Health and Safety
“Employee convicted of WHS offence for activity at client’s premises”
SafeWork NSW v Alejandro Bocaz  NSWDC 271
An employee was convicted of work health and safety (WHS) offences when visiting a client’s site to repair machinery. The employee failed to comply with his WHS duty and exposed three of the client’s employees to risk of death or serious injury. One of the client’s employees sustained serious burns to his face as a result.
The employee, referred to in this decision as “the offender”, was a person who had a health and safety duty under WHS laws and failed to comply with that duty, thereby exposing three other individuals to a risk of death or serious injury.
The offender was charged with a breach of his duty under the Work Health and Safety Act 2011 (NSW) and pleaded guilty to the charge.
The offender was an experienced expert in plastic and rubber extrusion machinery. His work mainly involved visiting the premises of clients and inspecting and repairing their machinery.
On 7 July 2014, the offender visited the factory of a client where an extruding machine, designed to heat plastic polymer pellets into a molten substance for creating new product (the extruder), was malfunctioning.
The offender considered it a possibility that burnt material may have built up inside the extruder and that running purge material through it may go some way to solving the problem. It was always the offender’s intention to make further investigations into the problem, including dismantling the extruder by hand to assess the problem in a comprehensive way.
Prior to attending the client’s factory, the offender asked the client to obtain purge material from their supplier, but this was not possible. As an alternative, the offender obtained purge material on behalf of the client from one of his contacts, which was not his usual practice.
On 7 July 2014, the offender ran purge material through the extruder and some matter was released. On seeing this, the client requested that the offender do the same thing again as it may save the time and expense of dismantling the machine.
The offender agreed to run purge material through the extruder again, but said that the machine would need to cool down before it was done a second time.
The following day, the offender returned to the client’s factory. He began loading the purge material into the extruder in the presence of three of the client’s employees.
After about 20 minutes, the purge material stopped moving through the extruder and it started to emit fumes and smoke. The offender turned off the screw (being the component of the machine placing pressure on the material). At that point, the offender considered it necessary to dismantle the machine, but it was too hot. The offender believed that it was a filter component of the extruder that was causing material to become trapped.
Two of the client’s employees tried to remove the filter with incorrect tools. The offender had the correct tool in his car and so left the vicinity of the machine for approximately two minutes to retrieve the tool.
As the offender approached the extruder on his return, he saw one of the client’s employees leaning closely to machine and noticed that a particular set of buttons had not been turned off. The extruder suddenly released a blast of pressure into the face of the client’s employee. As a result, the client’s employee sustained serious burns and his eye sight was impacted.
The offender pleaded guilty so there was no dispute as to liability in this case, only as to the amount of any penalty.
The Court held that the risk that the offender exposed the client’s employees to was objectively serious, but not obvious or likely. The Court found that the offender had a solid work history, which was free from safety incidents in a dangerous industry. It also found that he had good character and had shown genuine remorse.
In considering the penalty, the Court had regard to the offender’s age (69) and to his financial situation. The offender was the sole breadwinner for his household, including his wife, daughter and granddaughter. He had no significant savings or superannuation. The offender had also agreed to pay the prosecution’s costs of $30,000. The Court considered it unlikely that the offender would be able to pay any fine, even if it ordered one.
The Court also took into consideration the offender’s guilty plea and that both the incident and the proceedings had taken a serious personal toll on him.
Ultimately, the Court convicted the offender but did not order any further penalty.
What can your business learn from this decision?
Where an employer sends employees offsite to perform their duties, those employees will have a WHS duty to those present at a client’s site.
In this case, an employee was convicted of breaching his WHS duty to three individuals in a client’s factory.
Employers should ensure that their employees are aware of and knowledgeable about their WHS duties, both in the workplace and on other sites while performing work.
NSW Workers Compensation
"NSW WCC says workplace gossip is not part of the disciplinary process"
Campbell v Woolworths Ltd  NSWWCC 213
An employer has been found liable for a worker’s psychological injury after the Workers Compensation Commission of New South Wales rejected the employer’s argument that workplace gossip formed part of its reasonable disciplinary process.
Mr Campbell (the Worker) had been employed by Woolworths Ltd (the Employer) since 1991, with his most recent position being as a Long-Life Goods Manager at one of its supermarkets in regional NSW.
Following concerns that the Worker was not complying with the Employer’s protocols for workers entering and exiting the supermarket, the Employer undertook an investigation into the Worker’s activities. These concerns about non-compliance with protocols also led to allegations that the Worker had been stealing items from the supermarket.
The investigation ultimately concluded that the Worker was not guilty of the alleged theft, however, he was put on a performance improvement plan in relation to adhering to Company policies.
After the investigation had been concluded, the Worker was advised by a co-worker that other workers were aware of the allegations made against him, that they believed he was guilty and that they were asking why he had not been dismissed. Upon hearing this, the Worker became so distressed that he attended his general practitioner and was certified as unfit to return to his normal employment.
The Worker then made a claim for lump sum compensation arising out of a psychological injury.
The Employer accepted that the Worker had sustained a psychological injury that was causally related to his employment. However, the Employer sought to raise a defence under section 11A of the Workers Compensation Act 1987 (NSW) (the WC Act) on the basis that the disciplinary process was reasonable action. The Employer argued that the process should be considered as a whole and that the subsequent knowledge by the Worker’s colleagues about the allegations and the investigation, as well as the effect these had on the Worker, was part of that process.
Arbitrator Egan noted that both parties accepted that the disciplinary process was reasonable action to satisfy the elements required by section 11A of the WC Act. He did not, however, accept that co-workers becoming aware of the allegations and the investigation and then gossiping about it to other workers as well as to the Worker himself could be included as part of that process.
Arbitrator Egan drew particular attention to the Worker’s evidence, including medical evidence, which supported the view that the Worker had accepted that the investigation was reasonable and necessary in the circumstances. The Worker’s condition had arisen after, and was therefore predominantly caused by, him being questioned by co-workers about the allegations and the investigation and upon hearing that other workers were aware of the allegations against him. This had created a perception by the Worker that there was a “pack of dogs” mentality at the workplace and that he was being ostracised by his co-workers.
Arbitrator Egan stated that if this subsequent event was to be considered part of the disciplinary process, the process could not be regarded as reasonable action.
The Employer had therefore not discharged its onus to establish all of the elements required by section 11A of the WC Act and the matter was referred to an Approved Medical Specialist for assessment of the Worker’s whole person impairment.
What can your business learn from this decision?
Section 11A of the WC Act states that no compensation is payable for a psychological injury sustained by a worker if that injury is wholly or predominantly caused by reasonable action in relation to, amongst other things, performance appraisal and discipline.
This decision clarifies that workplace gossip that arises as a result of a disciplinary process is unlikely to be considered part of that process and therefore unlikely to attract the defence provided by section 11A of the WC Act, even if the broader process itself is a reasonable one. Obviously, each case must be considered on its individual facts.
When engaging in performance appraisals or disciplinary processes, employers should be mindful of such information being shared with workers other than the worker concerned. These subjects should, as far as practicable, be made known only to the relevant worker and the details be kept confidential.
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