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Discrimination in recruitment
Qualifying period for unfair dismissal protection; casuals
General protections multiple actions
Assessing compensation for unfair dismissal
High income threshold; allowances

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Discrimination in recruitment

A decision of the Queensland Civil and Administrative Appeals Tribunal has found that Woolworths contravened the Queensland Anti-Discrimination Act by discriminating against online job applicants by requiring them to provide their gender, date of birth and proof of their right to work in Australia and in doing so also held that Woolworths could not rely on a defence in sec 123(3) that it was "reasonably required". The Tribunal rejected an argument that the statutory provisions were invalid as being inconsistent with Federal laws, namely the Migration and Privacy Acts.

Qualifying period for unfair dismissal protection; casuals

Sec 383 of the Fair Work Act requires an employee to have completed a period of employment of at least the minimum employment period to be protected from unfair dismissal, which in the case of a small business employer is one continuous (see sec 384) year and other employers is 6 continuous months. In Affinity Education Group Limited v Kogler (2014) FWCFB 8752 a Full Bench of the Fair Work Commission is determining whether a casual employee qualifies for protection in the event that the employee was employed for 6 months and several days but had been absent for 10 days during that time.

General protections multiple actions

The Fair Work Commission has resolved that an application to the Equal Opportunity Commission of Victoria which was made before an employee was dismissed was not a decision of the kind contemplated by sec 732 purposes being an application or complaint under another law that has been made by Mr Jobson in relation to the dismissal. Consequently, on the facts there found (the action under the Equal Opportunity Act (Vic) was commenced before the termination of the employment relationship and in circumstances where dismissal was not threatened or pending and where the probability of dismissal was indeterminate) the unfair dismissal application was not a multiple action for the purposes of that prohibition.

Assessing compensation for unfair dismissal

The Fair Work Commission continues to apply Sprigg’s case as one of the leading authorities on assessing compensation for unfair dismissal; that case is also authority for the proposition that the Commission is not to take into account any social welfare payments which may have been received between the dismissal and the assessment. Sprigg v Paul’s Licensed Festival Supermarket  (1998) 88 IR 21.

High income threshold; allowances

There is remarkably little dicta of the Fair Work Commission about what allowances are included in an employee’s rate of earnings for the purposes of the high income threshold, and what are not. This is particularly surprising given the prevalence of allowances in total remuneration packages in the mining industry. In Venning v McDowell Constructors (Aust) Pty Ltd 2013 FWC 7838 Smith DP in an extempore decision held that a site allowance the express purpose of which was to compensate an employee for site conditions and which the employer expressly reserved the right not to pay in the event that the employee ceased working on site was not included as “wages” in the employee’s rate of earnings because it was payable for “disabilities associated with the site” and was not “guaranteed”.

Inferring agreement by conduct

The perils of accepting a salary increase and then denying that the other provisions of a new contract were binding was on show in Tiago v John Hopkins Property group Pty Ltd (2014) FCCA 2822 delivered on 5 December 2014. "The general principle is that the performance of a contract after the receipt of an offer is a means of accepting the offer by conduct," the judge ruled.

Jurisdiction; general protections

A decision of the Full Bench of the Fair Work Commission has clarified its role in relation to a claim made by an employee alleging that he or she has been dismissed in contravention of the general protections under the Fair Work Act 2009. The Full Bench has decided that it does not need to be satisfied that a dismissal has occurred before it can conciliate a general protections dispute and issue a certificate, allowing the dismissal to be pursued in the Federal Court (or since1 January 2014 by consent arbitration).

Implied terms and conditions of employment agreements

A Full Bench of the Fair Work Commission has determined that an enterprise agreement does not contain an implied term and condition that the employer may move its workplace to another site a considerable distance away from that which is the subject of the agreement, and that in making a decision to do so, the company had rendered the employment of some employees redundant.
It rejected the company's argument that a provision in those terms should be implied, doubting the applicability of the High Court's 

Suppression orders

The principles which will be used to determine applications to suppress the details of a case and the identities of the parties involved due to potential embarrassment  were reviewed recently by the Fair Work Commission which re-affirmed the general principle of open justice in Australian courts and tribunals. There is a presumption that the courts should be open and thus subject to scrutiny and it will be a rare case where a suppression order is granted.

Haskin v Plumbers Supplies Co-operative Ltd & Ors (2014) FWC 8402 delivered on 1 December 2014

Interpreting enterprise agreements

A Full Bench of the Fair Work Commission has rejected an appeal and an argument to the effect that in interpreting and construing enterprise agreements it should do so in the manner prescribed by the Acts Interpretation Act (CW) because EAs are instruments made by the Commission.
It determined that the Commission can consider evidence of the surrounding circumstances "before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists".
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