In the original claim, the respondent union filed an application on behalf of its member regarding an ongoing working from home request made under clause 51 of the Public Sector CSA Agreement 2022.  The union member was employed as an Investigator Advocate for the appellant and had been working from home for approximately 12 months when an extension to the arrangement was requested due to health concerns.  The appellant’s refusal coincided with a blanket direction for all employees to cease COVID-19 WFH arrangements.  The matter was not resolved by conciliation and was referred for arbitration. 

An application was made by the appellant that the application be dismissed on jurisdictional grounds, contending the matter involved enforcement of the Agreement.  It was also contended that the proceedings contravened the no extra claims clause of the Agreement in cl 7.2.  The Arbitrator dismissed the appellant’s application, concluding that clause 51 of the Agreement imposes substantive obligations on the employer to consider working from home requests, unless there are reasonable business grounds to refuse them. Further, the Arbitrator concluded the dispute was amenable to the dispute resolution provision in the Agreement and that the proceedings did not involve the enforcement or contravene clause 51 or clause 7.2 of the Agreement.

The Full Bench considered the principles of procedural fairness, the interpretation of clause 51 of the Agreement, and the distinction between judicial and arbitral power. The Full Bench found that clause 51 creates an enforceable entitlement for employees to request working from home arrangements, which can only be refused on reasonable business grounds.  It was concluded that the dispute was about enforcing the terms of clause 51 and that the orders sought were problematic because they aimed to seek an entitlement of WFH under the Agreement, which is the exclusive jurisdiction of the Industrial Magistrates Court.  The Full Bench also held that the claim was covered by the no extra claims clause and was precluded on that basis.  There was no denial of procedural fairness. 

Accordingly, the Full Bench upheld the appeal, quashing the decision at first instance and dismissing the substantive application on the basis of want of jurisdiction. 

The decision can be read here. 

The appellant, who was employed as a safety operations business partner with the respondent, was dismissed following investigations into allegations against him and his work-related grievances. The appellant applied to the Work, Health and Safety Tribunal alleging discriminatory conduct, and claimed that the respondent took discriminatory action against him when it placed him on a performance plan and dismissed him for raising work health and safety concerns. The Tribunal dismissed the appellant’s application finding that the respondent had proved that a prohibited reason was not a substantial reason for the conduct the appellant was aggrieved by.

The appellant lodged his notice of appeal three days out of time, and argued that the Tribunal erred by excluding a recording he sought to rely on, applied the wrong case law, denied him a fair process by failing to make reasonable adjustments, and did not properly understand or apply the objects of the Work Health and Safety Act 2020. 

The Full Bench considered the extension of time for the appeal based on several factors, including the length and reasons for the delay, the prospects of success of the appeal, and the extent of any prejudice to the respondent. In its determination, the Full Bench found that the recordings the appellant sought to admit were not relevant, the case law applied by the Tribunal was appropriate, and the Tribunal had afforded him procedural fairness. The Full Bench also noted that the appellant’s notice of appeal did not identify proper grounds of appeal by alleging an error of law or error of fact in the Tribunal’s decision.

The Full Bench concluded the grounds for the late notice of appeal did not weigh in favour of granting an extension.  Accordingly, the appeal was dismissed.

The decision can be read here.