This is EMA’s pick of the most interesting and relevant cases reported
in the last month. Please note that these are summaries only, and should
not be relied upon in place of the full judgment. If you would like
clarification on any of the judgments, or wish to know how a particular
case may apply to a matter you currently have, please contact one of our
consultants.
Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 (4 October 2019)
Industry: Police service
Type: Disciplinary, drug testing
Summary: A police officer, during a random drug test, tested
non-negative for a number of over-the-counter medications which had been
disclosed prior to the test. Following established procedure, this
non-negative test was followed up with a hair follicle test, which also
revealed traces of illicit drugs (including types of methamphetamine).
The officer was removed from the role of police officer following this
test. In the first instance, the Commission ordered that the officer be
reinstated. This decision was appealed.
Outcome: The officer had been on duty on several occasions
leading up to the test where he was likely to have come into contact
with the illicit drugs. The Commission therefore held that the Appellant
could not have been satisfied that the positive hair test results
proved that the officer had used illicit substances. The Full Bench
upheld the original decision that the officer be reinstated.
Key notes: Employers should be wary of interpreting hair follicle
drug tests, and where possible, should only rely on those tests as
being supplementary to primary drug tests (such as saliva or urine
tests).
Application by Oakmoore Pty Ltd [2019] FWC 7368 (24 October 2019)
Industry: Building and construction, manufacturing
Type: Application for approval of an enterprise agreement, notice of employee representational rights.
Summary: The Applicant issued a notice of employee representational rights (“NERR”) which deviated from the form set out in the Fair Work Regulations 2009
(Cth) sch 2.1. For example, the NERR was on the Applicant’s letterhead,
the final paragraph was modified to read ‘please speak to the HR
department’ instead of ‘please speak to your employer’, references to
the union were deleted from the NERR, and an additional paragraph was
added referring employees listed employee bargaining representatives.
Outcome: The Commission rejected the application for the
Agreement as the NERR was invalid, and the agreement was therefore not
‘genuinely agreed’ by employees in accordance with the Fair Work Act 2009 (Cth).
Key notes: The NERR is an essential element of the enterprise
agreement bargaining process. While minor errors to an NERR can
sometimes be overlooked at the Commission’s discretion, there is a
requirement that the form and content not deviate from the notice
provided in the Regulations. In this case, there was a significant
variation from the form and content, including a misrepresentation of
employees’ rights to appoint their own bargaining representatives, as
well as, incidentally, the NERRbeing the Company letterhead. Employers can acquire a copy of the NERR from the Commission’s website.
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