Fair Work system turns two – 10 of the most notable cases we’ve covered

The contentious issue of industrial relations is back on the political agenda, with Opposition leader Tony Abbott promising to take a “strong and effective” workplace relations policy to the next election.

Yesterday the Australian Industry Group marked the two-year anniversary of Fair Work Australia by calling for amendments to the Act, seemingly with a heavy heart.

“Ai Group has not called for amendments lightly, or as a first recourse, and we are not seeking large-scale reform of the system. However, we have identified areas where the Act is not working as intended and where amendments are essential,” it said.

In particular, the business body says the transfer of business and general protection laws and some aspects of the bargaining laws have proven problematic. It also says the laws need to be amended to outlaw union bargaining claims to restrict the engagement of contractors and labour hire.

With this in mind, SmartCompany has taken a look at 10 interesting cases we’ve covered under the Act in the past couple of years.

Fair Work’s redeployment message

Back in June 2010, the issue of how Fair Work Australia would treat unfair dismissal cases was still very much up in the air. In this case, senior deputy president Ian Watson found a company that terminated a worker because of an economic downturn in the automotive sector had unfairly dismissed the staff member because it did not make reasonable efforts to redeploy her, as is required under the Fair Work Act. It’s a big lesson for employers.

The sacked-by-text case

In late May, a retail employer was awarded almost $10,000 after being fired by a text message. Fair Work Australia ruled the sacking was harsh, unjust and unreasonable, saying if the dismissal is “implemented by any means other than face-to-face communication, both the legal and ethical basis for the decision to dismiss is likely to face strong and successful challenge”.

When a criminal record is valid grounds for sacking

When a case arose last year of a worker taken off the roster after being found guilty of several sex-related offences, senior deputy president Drake said the convictions related to “conduct of a sexual nature of a particularly offensive kind towards females, and this workplace [Uncle Tobys] has a significant female base.” Citing the employee’s poor character in this regard, plus the company’s responsibility to provide a safe workplace for its employees as far as it is able to do so, it was ruled that the employee’s convictions were a valid reason for termination. This surprised many experts, who felt the case set a new precedent and further blurred the lines of work and outside work.

Safety breaches, but sacking overturned

A paper mill employee, who was sacked for repeatedly removing his safety glasses while cleaning a piece of machinery during a plant shutdown, was reinstated after his sacking was found to be harsh. FWA vice president Michael Lawler said his prospects of future employment were poor. Employer groups were outraged. “The principal concern so far is here is a company that is quite clearly aware of its health and safety obligation and has taken actions in accordance with those obligations. But its decisions taken in the health and safety area are being second-guessed by the industrial trial,” ACCI’s workplace policy director David Gregory told SmartCompany in February 2010.

Gossiping sacking overturned

In February, a dismissed childcare worker was awarded more than $9,000 in compensation after a ruling the Victorian company’s no “back-biting” policy could not constitute a valid reason for dismissal. “Gossiping might be frowned upon, but it’s not cause for sacking.”

The great student worker battle

After almost two years, the issue of whether secondary school students can work just 90-minute shifts after school, rather than three hours, has not been resolved. While business groups welcomed a draft ruling earlier this month permitting retail workers to work 90-minute  shifts, with the permission of the parents or guardians, there are suggestions the SDA might appeal.

Right to strike fight

Employer groups remain furious with a decision this month when Fair Work Australia found that the Transport Workers Union genuinely sought to negotiate with a waste-collection company, and therefore had the right to proceed to strikes, despite attempted talks falling in non-bargaining periods and the fact majority workplace support for industrial action had yet to be determined. While governments and unions welcomed the decision, the case will be the subject of further debate.

Right of entry win

Twelve months ago, a full bench overturned a decision that would have given a New South Wales union almost unfettered access to a workplace. AIG chief Heather Ridout welcomed the decision, saying the right of entry provisions contained in the Fair Work Act were drawn up after extensive negotiations between employers, unions and the government.

Take-home pay

In September last year, FWA made its first take-home pay order, ordering women’s fashion retailer Fast Future Brands to provide a female staff member with nine months of back-pay.

Flexibility win for employers

In May 2010, the full bench overturned a ruling that found that individual flexibility arrangements could not be used to vary the terms of an enterprise agreement – even where the union and employer had agreed to do so. The case was seen a victory for employers.