Ai Group lodges appeal against Workpac decision - meaning of ‘service’ under the Fair Work Act

The Australian Industry Group has filed an appeal against the decision of Commissioner McDonald of Fair Work Australia (FWA) in the case Bambach v WorkPac. The appeal concerns the meaning of ‘service’ and ‘continuous service’ under the Fair Work Act.

The case revolves around the dismissal of Michael Bambach, who was engaged as a casual worker at a mine site by labour hire company WorkPac in March 2010. After sustaining a workplace injury in May, Bambach was placed on workers compensation until September 2011. Once medically cleared to return to duty, Bambach was told that there was no work available for him at the site and he was issued with a Separation Certificate, which listed his termination date as 24 September 2011 and the reason for termination as “Unsuitability for this type of work”.

When Bambach filed for unfair dismissal, WorkPac objected that he was employed on a casual basis, he had only had 2.5 months service until suffering the injury and the company had not technically dismissed him as they were trying to secure him further employment. However, Fair Work Australia ultimately found that workers compensation leave counted as ‘service’ and Bambach was still covered by unfair dismissal laws.

Heather Ridout, CEO of Australian Industry Group, had the following to say on the difference between ‘service’ and ‘continuous service’:

“The general meaning of ‘service’ and ‘continuous service’ under section 22 of the Fair Work Act is relevant for the Minimum Employment Period under the unfair dismissal laws, the accrual of annual leave, the accrual of personal/carer’s leave and redundancy pay.

“The meaning is also critical in determining entitlements when an employee is on a wide range of different types of leave and when absent from work in a wide range of different circumstances. These are issues of relevance to all employers and all employees.

“While the WorkPac decision centred around a workers compensation absence, the interpretation placed on section 22 and related provisions of the Fair Work Act by Commissioner McDonald has implications for numerous types of leave and absences.

“Ai Group is representing WorkPac in the proceedings and we also intend to apply to the Full Bench of FWA to intervene in our own right to represent the interests of industry.

“This latest appeal follows 16 other appeals which Ai Group has pursued, or intervened in, dealing with critical principles under the Fair Work Act.”

Grounds for the appeal

1. The Commissioner erred in deciding that Fair Work Australia had the jurisdiction to determine the applicant’s unfair dismissal application.
2. The Commissioner erred in deciding that the applicant was a person ‘protected from unfair dismissal’ for the purposes of ss 382 and 390 of the Fair Work Act 2009 (FW Act).
3. The Commissioner erred in deciding that the applicant had ‘completed a period of employment with his or her employer of at least the minimum employment period’ for the purposes of ss 382(a) and 383 of the FW Act.
4. The Commissioner erred in deciding that a ‘period of employment’ and a ‘period of continuous service’ for the purposes of s 384(1) of the FW Act includes a workers compensation absence.
5. The Commissioner erred in deciding that a ‘period of service as a casual employee’ for the purposes of s 384(2)(a) of the FW Act includes a workers compensation absence.
6. The Commissioner erred by identifying a wrong issue and by asking a wrong question. Namely, the Commissioner wrongly identified the issue and question as being whether the workers compensation absence was an ‘authorised absence’ (see Para [33] of the Decision). The Commissioner ought to have asked whether the workers compensation absence was an ‘unpaid authorised absence’.
7. The Commissioner erred in concluding that an ‘authorised absence’ is an ‘excluded period’ under s 22(2) of the FW Act (see Para [33] of the Decision) when in fact the only authorised absences which are excluded periods are ‘unpaid authorised absences’.
8. The Commissioner erred in concluding that a workers compensation absence is not an ‘excluded period’ for the purposes of s 22(1), (2) and (3) of the FW Act.
9. The Commissioner erred by adopting the reasoning of Deputy President Bartel in Badenhorst v Teys Bros (Naracoorte) Pty Ltd [2011] FWA 5622, when His Honour’s reasoning was not correct. His Honour’s conclusion that ‘whether the payments received by a worker constitute a paid absence from the workplace requires that there be sufficient connection between the payments and the employment relationship’ (see para [24] of Badenhorst), does not result in a workable or correct definition of the term ‘unpaid authorised absence’ in s 22(2) of the FW Act.
10. The Commissioner failed to interpret s 384 of the FW Act in a manner which would best achieve the purpose and object of the FW Act (see s.15AA of the Acts Interpretation Act 1901 (Cth)).