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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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