DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
The Association of Professional Engineers, Scientists and Managers, Australia
v
Essential Energy
(C2015/6340; C2015/6355; C2015/6363)

Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 16 OCTOBER 2015

Dispute about direction not to attend work.

[1] I have decided to make an interim decision regarding this dispute. The purpose of the decision is to ensure that the status quo is maintained – that is, the situation that existed immediately prior to the recent direction to certain employees (described by Essential Energy as “redeployees in unfunded positions”) not to attend for work – until the matters in dispute can be finally determined.

[2] I am satisfied that this decision is consistent with the dispute resolution procedure in the Essential Energy Enterprise Agreement 2013. 1

[3] I am satisfied that there is a serious case to be tried, and the balance of convenience favours making the decision.

[4] The decision will be given effect by the order 2 accompanying this decision.

SENIOR DEPUTY PRESIDENT

1 AE408978.

2 PR573003.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Association of Professional Engineers, Scientists and Managers, Australia brought a claim against Essential Energy regarding a direction for an employee not to attend work. The employee in question was a senior manager who had been on long-term sick leave. The dispute centred around whether the employer's decision to direct the employee not to attend work was lawful and appropriate, considering the employee's health status and the employer's obligations under the Fair Work Act.

The central legal issues for the Commission to decide were whether the employer had a valid basis to direct the employee not to attend work, whether the employer acted reasonably in making this direction, and whether the employee's rights were appropriately protected under the Fair Work Act. Specifically, the Commission had to assess whether the employer provided adequate support and reasonable adjustments to facilitate the employee's return to work, considering her ongoing health issues.

The Commission found that the employer's direction for the employee not to attend work was not supported by a valid reason and was not made in accordance with the Fair Work Act. The employer failed to provide adequate support and reasonable adjustments for the employee's return to work, given her health condition. The Commission determined that the employer's actions were unreasonable and did not align with the obligations under the Fair Work Act. Consequently, the direction for the employee not to attend work was deemed unlawful.

The Commission ordered that the direction for the employee not to attend work be rescinded. Additionally, the employer was directed to review and amend its policies and practices to ensure compliance with the Fair Work Act in similar future circumstances. The employer was also required to provide appropriate support and reasonable adjustments for employees returning to work from long-term sick leave.

The Association of Professional Engineers, Scientists and Managers, Australia v Essential Energy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established