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JH Briefs

14/04/2022

JH Briefs is a blog summarising interesting takeaways from cases decided in the past week.

Robert Dolevski & Ors -v- Virgin Australia Airlines Pty Ltd [2022] FWC 740

https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc740.htm

Members of the Commission should be reluctant to disqualify themselves in relation to an application for apprehended bias and any apprehended bias must be firmly established [12].

The test of apprehended bias is from the perspective of a “fair-minded lay observer” and involves a two-step process [14]:

  • First, the identification of what it is said might lead the person to decide a case other than on its legal and factual merits; and
  • Second, an articulation of the connection between the matter and the feared deviation from the course of deciding the case on its merits.

(see also Ebner v Official Trustee (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ))

The Commissioner’s membership in the Respondent’s frequent flyer program and the holding of a “Club” membership issued by the Respondent did ‘not disclose a predisposition of judgement’ [25] and the Member did not recuse himself [28].

 

Sonia Louise D’Ambrosio -v- Fair Work Ombudsman [2022] FWC 846

https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc846.htm

In section 372 general protections applications, jurisdiction need not be determined by the Fair Work Commission in advance of a conference – s 372 applications simply require an allegation of a ‘contravention of this Part’ ([25] and [37]).

Contrast this with s 365 general protections applications involving dismissal where jurisdictional matters such as whether an employee has been dismissed must be resolved before the powers conferred by s 368 can be exercised ([20] and see also Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, 300 IR 146).

Importantly, and often overlooked where an individual alleges breaches of their general protections that do not involve dismissal [36]:

  • employers may elect not to participate in a conciliation in the Fair Work Commission; and
  • individuals may elect to bypass the Fair Work Commission all together.

 

Kathryn Roy-Chowdhury -v- The Ivanhoe Girls’ Grammar School [2022] FWC 849

https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc849.htm#P63_3654

It is important for all parties to be aware that, although the Fair Work Commission generally applies them, the normal rules of evidence do not apply ([8] and see s 591 of the Fair Work Act 2009 (Cth)).

The Fair Work Commission continues to emphasise that it is not a matter for it to determine the validity or otherwise of a direction or mandate imposed, in this instance, by the Victorian State Government [23].

The introduction of a COVID-19 vaccination policy may not amount to ‘change’ for the purposes of consultation obligations in an applicable modern Award [102] – contrast this with the Full Bench’s decision in in CFMMEU v Mount Arthur Coal Pty Ltd [2021] FWCFB 6059 where the Work Health and Safety Act 2011 (NSW) applied.