A union’s endeavour to have an award it manages amended in the award modernization process to prohibit retailers from requiring service staff to wear clothing which is humiliating, either from its tackiness (“I Love sex” T shirts ) covered in badges was at first rejected by the Fair Work Commission.
Commssioner Lewin at first instance held that the claim it did not fall within the list of award terms in section 139 of the Fair Work Act, and was not an “incidental term” under sec 142 because it was not essential to make another term operate in a practical way.
However on appeal a Full Bench has ruled that the original decision denied the union natural justice because the decision was based upon issues not ventilated by the parties during the hearing, which was mainly conducted by written submissions.
“The SDA was not made aware that the basis for rejecting its application was a live issue and was not afforded an opportunity to address it. The Commissioner was obliged to give the SDA an opportunity to address the jurisdictional issue. In not doing so, Commissioner Lewin failed to afford the SDA of natural justice,” the bench said.
SDA v Hair and Beauty Industry Association (2014) FWCFB 4738 delivered on 16 July 2014