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What can be protected industrial action?

A Federal Court judge has ruled that the provision of confidential information to the media by a union and its members engaged in industrial bargaining for a new enterprise agreement does not constitute “industrial action” for the purposes of being protected. In doing so the judge opposed a contrary decision of a Full Bench of the Fair Work Commission. It was common ground that the action threatened by the employees would have constituted both a breach of their employment contracts and their employer’s media policy.

Legal and professional representation

The anti-bullying panel of the Fair Work Commission has delivered a decision casting further light on the circumstances in which it will permit a party to be legally represented at a hearing. Previous cases tended to suggest that obtaining leave would be very difficult indeed but this case may suggest that the principles are the same, or will be applied to be the same, as any other jurisdiction of the Commission.

Re Vormald (2014) FWC 7378 delivered on 17 October 2014


The ability of an organization to consume an order for reinstatement in an operational sense was under scrutiny in a recent decision of the Fair Work Commission. The employee had won an appeal from a Full Bench on the ground that the Commissioner at first instance had not adequately considered reinstatement as an optional remedy but failed when that Commissioner dealt with the matter when it was referred back to him. The respondent in the case was able to show that although other alternative places might be found within branches of the Catholic Church, none of them was sufficiently identified in a legal sense with the respondent.


Under many enterprise agreements, there is a clause to the effect that certain disputes, arising out of the agreement, can be resolved by the Fair Work Commission. This is an arbitral jurisdiction which is vested or conferred by agreement in advance, and thus self evidently the terms of the consent will determine whether the Commission, or any other third party for that matter, can become involved to arbitrate the dispute. The Commission sitting in Perth has ruled that it has no jurisdiction to exercise an arbitral jurisdiction under a conferral by an enterprise agreement in a dispute between a former employer and a former employee, even though the dispute concerned entitlements argued to arise during employment because the particular clause spoke of a dispute between the employer and an employee.

Different horses for different courses; unfair dismissal

A series of cases in the Queensland Industrial Relations Commission have highlighted the impact of personal circumstances on whether an employer has a valid reason for dismissal and whether dismissal is the appropriate remedy for misconduct. The following cases deal with an application for an unfair dismissal remedy by a leading hand of a local government who was dismissed with pay in lieu of notice for participating in a visit to a betting shop during working hours with the employer’s truck parked outside the betting agency and a similar application by a much more junior worker who won his case for the very same incident.

Adverse action for industrial activity

The High Court, by a majority of 3 to 2, has dismissed an appeal by the CFMEU against a finding by the Federal Court that the dismissal of an employee who was also a union delegate for holding up a sign during industrial activity which inter alia read “Scab” did not constitute unlawful adverse action under sec 346 of the Fair Work Act 2009 because of engaging in industrial activity since there were findings of fact made by the trial judge to the effect that the reasons of the decision maker for the employer were that the actions of the employee constituted a breach of the company’s workplace conduct policy.

Costs in adverse action cases

A Federal Court judge had ordered a former employee to pay a portion of her former employee’s costs, on an indemnity basis, incurred in defending an adverse action case which the former employee lost. Interestingly, the judge who heard the application for costs was not the trial judge, who had since retired.
Normally, an order for costs in a civil court is on what lawyers call a party and party basis, which means that the costs which are recovered are only between about half and two thirds of the actual costs, because they are assessed by reference to a statutory scale of costs which most often lags well behind the real market for legal fees for legal services.

Drug testing in the workplace

There is a vigorous debate being had in industrial relations circles about the utility of drug testing orally as against urine testing. The Fair Work Commission has handed down contradictory decisions about the workplace efficacy and equity of the two choices, and the ACTU has vigorously campaigned, formally and informally, for the former on the basis that it is less intrusive. It also argues that urine testing can be used to determine past drug consumption of weeks, even months sometimes, without necessarily being much of a guide to the immediate and generally more relevant issue of the presence of prohibited substances or of impairment at the time of the test.

Compensation for adverse action (non-economic loss)

A casual bar tender who had his rosters revoked because he had complained about moneys which he was owed for work done over several months has been awarded compensation by the Federal Court including for non-economic loss for hurt, humiliation and distress. The employee had been underpaid wages on the basis that he was a part time employee when under the award as a casual he was entitled to be paid more. The judge was less than impressed with the offensive response by management.
Hall v City Country Hotel Management Pty Ltd (2014) FCCA 2317 delivered on 10 October 2014

Costs in adverse action cases

The Federal Court has declined to  order under sec 570(2)(b) of the Fair Work Act that a former employee pay any of her former employer’s costs of successfully defending a claim for unlawful adverse action, instead finding that she had been dismissed for poor performance though the employer twice made offers to settle with financial compensation which were each rejected. The judge decided that the first offer was premature because it was made before the applicant had received the employer’s affidavit setting out its case, and the second was not attended by sufficient time for her to properly consider it.

Adverse action injunctions

The Australian Red Cross has agreed for the time being to adjourn an endeavour to discipline a union delegate who had sent out an e-mail to her union colleagues to update them on the progress in enterprise agreement negotiations. Apparently, it had issued the employee with a first and final warning and threatened the employee with dismissal after she sent out what the union’s lawyer claimed was a "completely innocent" email, ostensibly updating employees on the results of a ballot to approve a draft enterprise agreement which was being resisted by the union.

Varying enterprise agreements

Enterprise agreements are agreements for the length of their respective terms, and may not be varied without the consent of the parties, and then by the authority of the Fair Work Commission. It is a contravention of an orthodox enterprise agreement for a party to make an extra claim within the life of the agreement. A Victorian water authority has been found to have breached the “no extra claims” principle of an enterprise agreement by purporting to remove the entitlement for a small number of senior staff having private use of an authority motor vehicle.

Sham arrangements; general protections

A building company and one of its directors have been convicted of breaching section 358 of the Fair Work Act 2009 and face penalties at a future hearing. They were held by the Federal Court to have dismissed a construction worker and then offered to re-hire her as an independent contractor in circumstances which the judge described as doing “exactly what sec 358 was designed to prevent". The judge ruled that it did not matter that the former employee had not accepted the position as an independent contractor and that was irrelevant under s358 that the company's unlawful aim was not achieved.

Constructive unfair dismissal

A senior member of the Fair Work Commission has held that a female employee who was told to “f… off” was constructively dismissed and did not resign when she did not accept an invitation to go to the office to “finalise things”. Sams DP said rather unsurprisingly that “where an employer tells an employee to ‘f- off’ and then does not take any action to explain or withdraw that expression, it constitutes a direction to the employee to leave the workplace. As such, it constituted a constructive dismissal of the applicant”.

Employer's right to medical report

The Fair Work Commission has issued guidance through an unfair dismissal decision about what an employee is required to do to satisfy an employer that the employee is fit to return to work after an absence on medical grounds.
Commissioner Bissett found that the employer’s efforts to ensure that the employee’s return would not create a health and safety risk for herself or the other employees could not be construed as unreasonable and that the employee should have consented to the employer obtaining medical evidence directly from the employee’s medical practitioner, particularly where the employer was motivated by concerns to comply with its health and safety obligations.

Casual employees

The ACTU has announced a campaign to persuade the Fair Work Commission, currently undertaking its statutory 4 year review of modern awards, to insert into all awards a standard clause to guarantee casual employees, who are permanent in all but name, to become permanent employees, whether full time or part time. It has not yet announced any details of what it is seeking and employer bodies have already signaled opposition to the proposal. It is my understanding that the ACTU is not intending to propose that the guarantee apply to genuinely casual employees such as students employed in the hospitality industry.

Compensation for unfair dismissal (WA system)

In determining whether a dismissal has been harsh, oppressive or unfair the Western Australian Industrial Relations Commission must take into account whether the employee was then on an agreed period of probation and also whether the employee had been “so employed” for less than 3 months. So whilst it is technically possible for an employee who might otherwise be able to access the unfair dismissal jurisdiction of the Commission (for example by being employed by sole trader or State government instrumentality), the Industrial Relations Act 1979 makes it clear that they are powerful factors which the Commission must take into account.


Regulation 1.12 of the Fair Work Regulations defines a pieceworker as follows
             (1)  For paragraph 21(1)(c) of the Act, this regulation prescribes a class of award/agreement free employees as pieceworkers.
Note:          Under paragraph 21(1)(c) of the Act, a pieceworker is an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.

Multiple actions for unfair dismissal

A Full Bench of the Fair Work Commission has clarified that its extensive powers under sec to permit amendments and corrections to an application or any other document relating to a matter before it does not extend to granting leave to convert an application for an unfair dismissal remedy into an application contending that there has been a general protections’ breach.
The Full Bench has found that s586 does not allow the Commission "allow an amendment to an application that fundamentally changes the kind of application that was originally made".

Non-monetary benefits and the high income threshold

Regulation 3.05(6) of the Fair Work Regulations provides that the value of some benefits other than the payment of money are to be included in the high income threshold for the purpose of sec 382 of the Act.
             “(6)  If:(a)  the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person's employer; and (b)  the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and   (c)  the FWC is satisfied, having regard to the circumstances, that: (i)  it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and (ii)  a reasonable money value of the benefit has not been agreed by the person and the employer; and(iii)  the FWC can estimate a real or notional money value of the benefit; the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act”.

Recent Posts

What can be protected industrial action?
Legal and professional representation
Different horses for different courses; unfair dismissal


Absences from work
Adverse action
Annual leave
Award and agreement free
Award entitlements
Breach of contract
Bringing actions for unfair dismissal
Bullying at work
Casual employees
Compensation for unfair dismissal
Compensation in employment
Conditions of employment
Constructive dismissal
Consultation required in the workplace
Contract of employment terms
Criminal convictions and the workplace
Defamation in the workplace
Demotion at work
Disciplinary action in the workplace
Discrimination at work
Dismissal procedures
Dismissal remedies
Dress codes in the workplace
Drug testing in the workplace
Duty of care
Email policies
Employee incentive scemes
Employee records
Employee rights
Employee rights in a transfer of business
Employees' duties
Employment Advice
Employment contracts and the law
Employment remuneration issues
Enforcing employment contracts
Enterprise agreements
Enterprise bargaining
Equal Opportunity
Fair Work Act
Fair Work Commission practice direction
Fair Work Commission procedures
Fair Work procedures
Fair Work remedies
Fair Work time limits
Flexible working arrangements
General protections
Grounds for dismissal
Guarantee of annual earnings
Harassment at work
High income threshold
How workplace rights are protected
Implied terms and conditions of employment
Independent contractors
Individual flexibility arrangements
Industrial action
Industrial awards
Industrial torts
Instructions by an employer
Interesting cases
Internet at work
Interpreting awards and enterprise agreeents
Lawful and reasonable directions
Legal issues in employment
Legal Professional Privilege
Legal representation
Long service leave
Lying in enterprise bargaining
Managing poor performance
Minimum entitlements
Misconduct out of hours
Mobile phone records
Modern awards
NES paid leave
Notice periods for termination of employment
Offer of alternative employment
Onus of proof
Parental and maternity leave
Parental leave
Payment of remuneration
Position descriptions
Privacy in the workplace
Procedural fairness
Protected industrial action
Public holidays
Racial villification in the workplace
Recording conversations in the workplace
Recovering entitlements
Redundancy concepts
Remedies in employment law
Representation in the Fair Work Commission
Restraints of trade
Rosters and working hours
Salary, wages and remuneration
Settlement deed
Severance payments
Sexual harassment in the workplace
Sick leave
Social media in the workplace
Soicial media in the workplace
Springboard principle
Summary/instant dismssal
Support person
Termination of employment
Termination of Employment and Probation
Termination of employment by small businesses
Termination of empoyment
The Australian system of employment regulation
Time limits
Transmission/transfer of business
Tribunal procedures
Unfair dismissal
Unfair dismissal and small businesses
Visa laws and the workplace
Visa workng rights
Wages and salary
Western Australian workplace rights laws
Withholding entitlements
Workers compensation rights
Workplace bullying
Workplace health and safety
Workplace Right
Workplace rights
Wrongful dismissal
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