Welcome to the latest edition of the KHQ Workplace Watch. A lot has happened since 1 July! Topics covered in this edition include: the draft right to disconnect award term, regulated worker reforms, the recent CFMEU controversy, new decisions in the Fair Work Commission about industrial action and recent reforms (including intractable bargaining and multi-enterprise bargaining), variations to the General Retail Industry Award and recent Fair Work Ombudsman activity.
Right to disconnect – draft award term issued
The Fair Work Commission has published a Statement containing the draft right to disconnect modern award term.
Interested parties are required to file any submissions concerning the draft time by 1 August 2024.
At this stage, the Commission does not intend to issue any Guidelines about the right to disconnect.
The right to disconnect modern award terms are set to take effect from 26 August 2024 (excluding small business employers). The terms will take effect from 26 August 2025 for small business employers.
See the President’s Statement (which includes the draft award clause) here.
Implementation Plan issued for regulated worker reforms
The Fair Work Commission released an Implementation Plan concerning its new functions in relation to regulated workers. These new functions include unfair deactivation and unfair termination for regulated workers and the unfair contracts jurisdiction for independent contractors.
The Commission’s new functions are set to commence on 26 August 2024.
The Implementation Plan can be accessed here and the Statement published by President Hatcher here.
CFMEU controversy
John Setka resigns amidst controversy
The CFMEU’s Victorian branch secretary, John Setka has resigned amidst various allegations of misconduct directed at him and the union as part of a major investigation into the construction division by The Australian Financial Review, The Age, The Sydney Morning Herald and 60 Minutes.
This has been reported in all major newspapers.
Federal Workplace Relations Minister, Tony Burke, claims that he has put the CFMEU on notice and may even consider deregistering the construction division of the union. For instance, see ABC report here.
On Monday 15 July 2024 it was reported that national construction union leaders had placed the Victorian branch of the CFMEU into administration. See report here.
Demerger Bill passes Parliament
Parliament has promptly passed legislation aimed at enabling the manufacturing division of the CFMEU to withdraw from the broader union. The Manufacturing Division is expected to now commence the process for the foreshadowed demerger.
See a copy of the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamation) Bill 2024 here.
New decisions about industrial action
In the last fortnight, there were two notable decisions concerning applications under s418 of the Fair Work Act 2009 to stop unprotected industrial action.
Healthcare Supply Partners – unprotected industrial action
Healthcare Supply Partners obtained orders to stop unprotected industrial action. The United Workers’ Union notified of 8-hour stoppages between 11pm and 7am on consecutive days. The employer argued that this was, in effect, a one-hour stoppage because employees rarely ever worked between 6pm and 6am. Only a stoppage of work for a duration of 8 hours was authorised under s459 of the Fair Work Act 2009 (Cth). A one-hour stoppage would not be protected.
Commissioner Matheson said at [77]:
“… I consider that a withdrawal of labour that would only have the likely impact of a one hour actual stoppage of work, being work between the hours of 6am and 7am, is of an essentially different character than the action contemplated in the form of a ‘stoppage of work of 8 hours duration’ as authorised by the protected action ballot…”
There could be significant implications (in terms of organising protected action and responding to s414 notices) if this decision is followed in the future.
See link to the decision in Healthcare Supply Partners Pty Ltd v UWU [2024] FWC 1816 here.
Transgrid – rolling 24-hour bans
Transgrid was unsuccessful in obtaining orders to stop rolling 24-hour bans. The bans were notified by the CEPU to commence at 12am each day. Employees were picking and choosing to engage in the notified bans. On any given day, employees would inform Transgrid that they were going to engage in the bans. Transgrid argued that this form of notice was a “blank cheque”, which did not meet the notification requirements and circumvented the requirement to provide at least 3 working days’ notice.
Deputy President Cross concluded:
“[31] Nothing in the terms of the Notice indicates that the Bans will be collectively, as opposed to individually, imposed. The Notice is simply compliance with s414(1) of the Act, and is written notice by the CEPU, as a bargaining representative of employees of Transgrid for whom the CEPU is the bargaining representative, that those employees intend to take protected industrial action as outlined.
[32] The complaint of Transgrid appears to relate, at least in part, to the notification of, yet failure to undertake, notified industrial action. As noted above, there is no obligation to undertake notified industrial action, and it has been observed that such conduct can be used as a disruptive tactic in negotiations. Were an allegation of such conduct advanced, there are available avenues to address such allegations pursuant to the Act.”
See link to the decision in NSW Electricity Networks Operations Pty Ltd v CEPU [2024] FWC 1704 here.
Wilmar Sugar – suspension of protected industrial action
The Fair Work Commission also made a rare order under s424 of the Fair Work Act 2009 (Cth) to suspend protected industrial action because it was threatening to cause significant damage to an important part of the Australian economy (being the sugar industry). Wilmar Sugar made this application after receiving notice of four one-hour stoppages.
Deputy President Dobson found:
- The four one-hour stoppages would cause at least $34.424 million in loss to Wilmar Sugar.
- Wilmar is responsible for producing 50% of all sugar in Australia.
- Wilmar is responsible for producing 50% of the total industry revenue.
- The Queensland sugar industry contributes 19,673 direct and indirect full time equivalent jobs.
- Wilmar’s revenue contributes 7.3% of the total GRP in North Queensland, 3.8% of the GRP in the Mackay region and 1.9% of the GRP in the Far North Queensland region.
This meant that the Deputy President was satisfied that the protected industrial action has threatened, is threatening or would threaten to cause significant damage to an important part of the Australian economy. An order was issued suspending protected industrial action for 6 weeks.
Deputy President Dobson suspended the protected industrial action on 30 June 2024. The reasons for the decision were published on 4 July 2024. The following day the Full Bench quashed the decision and dismissed the employer’s application, meaning that the suspension order was lifted and the union could continue its industrial action campaign. The Full Bench has not yet published its reasons.
See the first instance decision of Deputy President Dobson in [2024] FWC 1767 here.
See the Full Bench decision in CEPU, AMWU and AWU v Wilmar Sugar Pty Ltd (PR776753) here.
Another workplace determination for Cleanaway
A Full Bench of the Fair Work Commission has made another workplace determination for Cleanaway. This determination concerns Cleanaway’s workers at its Unanderra depot.
The Bench arbitrated a number of disputed terms, including ordinary hours of work, dispute resolution procedure, wage increases, redundancy, classifications and the nominal expiry date.
This was the first decision dealing with the new s270A of the Fair Work Act 2009. The Full Bench summarised the new provision as follows:
“[135] The purpose of s 270A is apparent from its terms. It is to regulate the content of terms to be included by the Commission in a workplace determination that are “still at issue” and to do so by requiring that, in relation to those particular terms, employees and any employee organisation that was a bargaining representative of those employees cannot be worse off than they were under a term of a current enterprise agreement.”
The Bench considered that Cleanaway was pursuing changes to existing terms and conditions which would have been less favourable.
Interestingly, this limitation did not apply to Cleanaway’s proposal to remove arbitration from its dispute settlement procedure. Following previous authorities, the Bench confirmed that it did not have the power to impose a compulsory arbitration clause on a party without their consent:
“[174] The Commission is required to have regard to the Constitutional power of the Commonwealth Parliament in interpreting how far provisions such as ss 274(3)(a) and 270A of the Act reach. It is clear from the decision of the Full Bench in Home Affairs and the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission21 that the legislative power of the Commonwealth does not extend to empowering the Commission to include within a workplace determination a dispute resolution procedure that empowers the Commission to arbitrate a dispute absent the consent of the parties. In the present case, Cleanaway has made very clear that it does not consent to a workplace determination being made which includes a power of arbitration, unless the parties to the particular dispute consent to such arbitration.
[175] Regardless of whether it might be thought that Cleanaway’s proposed dispute resolution clause (without compulsory arbitration) is less favourable than the dispute resolution clause in the Unanderra EA, section 270A of the Act cannot, in our opinion, override the limitation on the power of the Commission, as well as the legislative power of the Commonwealth Parliament, as to prevent the imposition on a party to a compulsory arbitration clause to which it does not consent.”
See a copy of the Full Bench decision in TWU v Cleanaway Operations Pty Ltd [2024] FWCFB 305 here.
Multi-enterprise bargaining update
The Fair Work Commission published a single-interest employer authorisation in respect of four employers in the Catholic Education system in Tasmania.
Each employer provides educational services in the Catholic education system in Tasmania. They have broadly the same ethos and objectives and are subject to the same regulatory and policy systems. They have a history of bargaining together and the core terms and conditions of employment are the same at each workplace.
See link to the decision of Deputy President Hampton here.
Retail Industry Award varied
The General Retail Industry Award 2020 has been varied with respect to rostering requirements and overtime for part-time employees.
See the Fair Work Ombudsman’s summary of the changes here and a copy of the Full Bench decision here.
General protections
The Federal Court of Australia is piloting a new National General Protections List. The pilot program will commence on 1 September 2024 and run for eight months. The purpose of the new List is to enable general protections proceedings to generally be undertaken by Registrars of the Court in the hope of allowing these matters to be programmed more consistently and efficiently.
See the Federal Court of Australia’s Notice to the Profession here.
Fair Work Ombudsman activity
In the last fortnight, the regulator has reported the following notable updates:
- Nearly $250,000 in court ordered penalties against the CFMEU and three of its officials for various forms of unlawful conduct at the Yatala Labour Prison upgrade project in Adelaide in 2021. Justice O’Sullivan described the various conduct as “physically threatening behaviour” which could “only be described as thuggish”. See report here.
- It has recovered over $220,000 in underpayments for employees at food outlet stores operating on the Sunshine Coast, following a surprise inspection of 21 businesses. Of the 19 finalised investigations, 13 were considered to be in breach of workplace laws, with the most common breach being underpayment arising from a failure to pay penalty rates. See report here.
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