- November 7, 2025
- Posted by: Justin Prince
- Category: Human Resources and Industrial Relations
Fair Work Commission Full Bench decisions — what actually matters
Reality vs Hype
This IR Geek wrap breaks down Fair Work Commission Full Bench decisions and what they mean for employers right now—coverage notes, service mistakes, the “not required” casual email, and platform deactivations. The law hasn’t changed; enforcement has. Here’s what actually went wrong and how to fix it.
The Facts (need-to-know decisions)
- UWU v Centacare (FB) — Appeal upheld; approval varied to add a s.201 coverage note for UWU. “Not involved in bargaining” was the wrong test; UWU had filed F18 and had prior coverage.
- ASU v Warrnambool City Council (FB) — Approval quashed/remitted. Council failed to serve F16/F17B on the union—not a technicality—denying the chance to seek coverage (s.183) and be heard.
- Humeniuk v Sculpture by the Sea (FB) — “You’re not required” email could be read by a reasonable person as ending employment. First-instance “not dismissed” quashed; remitted.
- Hotak v Uber (FB) — Unfair deactivation found; reactivation ordered despite Uber’s later voluntary reactivation; lost pay to be assessed. Code steps weren’t followed (no rep available for discussion).
Case-by-case: what actually went wrong (and how to fix it)
1) UWU v Centacare — coverage note missing, test misread
What went wrong
- The Commission approved the EA without recording UWU as covered. The employer’s F16 answer about “involved in bargaining” was treated like a proxy for coverage. The FB said involvement ≠ coverage; unions can be reps without being in the room, and UWU had both history and a 14 Nov 2024 “cover us” email.
Fix it
- Make coverage a checklist item: log prior coverage, F18s, and any “cover us” notices; answer F16 literally; provide the s.201 note on approval.
2) ASU v Warrnambool — didn’t serve F16/F17B
What went wrong
- Council lodged but didn’t serve the union. The FB called it procedural fairness denied, not a technicality. The union lost the chance to seek s.183 coverage and make submissions. Approval quashed/remitted.
Fix it
- Serve F16 + F17B on every rep (active or “quiet”) and keep proof. Don’t assume “not involved” = “no service required.”
3) Humeniuk v Sculpture by the Sea — the “reasonable person” test
What went wrong
- First instance treated the message as a pause. The FB asked: how would a reasonable person read it? Answer: like termination—even if re-engagement later was “possible.” Decision quashed; remitted.
Fix it
- If it’s a pause, say it (“temporary suspension of shifts until [date]”), confirm employment continues, and set a review point. If it’s dismissal, follow UD process.
4) Hotak v Uber — deactivation code + “reactivation” gambit
What went wrong
- Uber argued reactivation made the case moot. The FB rejected it: unfair deactivation is judged at the point in time; later reactivation doesn’t erase jurisdiction or remedies. Also, Uber didn’t comply with the Code (no rep available for discussion).
Fix it
- Treat the Deactivation Code like an award clause: notice, discussion access, reasons; evidence high enough for serious allegations. Expect orders for reactivation and lost pay if you miss steps.
Where it turned (reasoning in plain English)
- Coverage is a right, not a vibe. Prior coverage + F18 + notice to employer meant UWU should have been recorded as covered; “involved” in the F16 wasn’t the legal gate.
- Serving forms isn’t optional. Failure to serve F16/F17B denied s.183 rights and submissions—approval couldn’t safely stand.
- Reasonable person test matters. “Not required” can read as termination depending on context, even for a casual.
- Deactivation: past event, present remedies. Later reactivation doesn’t cure earlier unfairness; orders still issue.
- These Fair Work Commission Full Bench decisions show process is your defence, not paperwork
IR Geek Analysis (what actually matters)
- EA approvals are paperwork sports. Build a coverage map and a service log. If a union could be covered, assume it must be served—because it must.
- Letters make or break cases. If the valid reason you rely on at hearing wasn’t put to the employee, reinstatement risk rises (general UD principle).
- Platforms: the Code now bites. Miss the discussion access step or rely on shaky allegations and you’ll wear reactivation + lost pay.
- Language precision saves money. “Pause” ≠ “finish up.” Say what you mean, back it with dates and process.
What Employers Should Do
For future Fair Work Commission Full Bench decisions, this checklist will keep approvals clean
- Map reps & coverage at bargaining start; log prior coverage, F18s, and “cover us” emails.
- Serve F16 + F17B on all bargaining reps; keep email proofs.
- Pre-draft your s.201 note before approval so coverage is recorded cleanly.
- For any pause in work, issue a “temporary pause” letter with a review date; avoid accidental dismissal.
- Deactivation SOP: notice → discussion access → evidence threshold → decision record → written reasons.
- Don’t do this: treat “not involved in bargaining” as a get-out-of-service free card. The FB has said nope.
Valid Grounds / Not Good Enough
Lawful business grounds that fly (if evidenced):
- Recording a union as covered where they have prior coverage or filed F18; serving reps consistently.
- Deactivations that follow the Code (notice + discussion access) with supported facts.
Arguments that flop:
- “They weren’t involved in bargaining, so we didn’t serve them.” ❌
- “We reactivated them, so case is over.” ❌
Templates & Controls to Wire In
- EA Service & Coverage Pack: rep list, service proofs, draft s.201 note.
- Show-Cause Letter Pack: single valid reason, evidence list, response window (support person).
- Deactivation Decision Record: Code tick-box, discussion access log, evidence summary, remedy consideration.
- “Pause” Letter Template: states continuity of employment and review date (avoid accidental dismissal).
Final Word from the IR Geek
This isn’t new law—it’s old law with teeth. If you want to say no, or press pause, or deactivate, prove the how: serve the forms, name the reason, follow the Code, and keep the receipts!
Estimated reading time: 5 minutes