Leading cases in labour law — 2019

Welcome to my predictions on the leading cases* in labour law— 2019:

• Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 — for the statement of principles regarding the application of, and evidence required to enliven, the “ordinary and customary turnover of labour” exemption to the statutory obligation to pay redundancy pay, pursuant to section 119 of the Fair Work Act 2009 (Cth). (January 2019)
• Saad v Ada Evans Chambers Pty Ltd & Anor [2019] FCCA 1101 — for the proposition that an employee must establish evidence of their economic or non-economic loss suffered, in order to obtain an order for such compensation under section 545 of the Fair Work Act 2009 (Cth) (April 2019)
• Birner v Aircraft Turnaround Engineering Pty Ltd [2019] FCA 1085 — for the summary of principles regarding the determination of whether an employee is a “casual employee” or a employee other than a casual employee, drawing from the decision of the Full Court of the Federal Court in Workpac Pty Ltd v Skene [2018] FCAFC 131. (July 2019)
• Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092 — for the summary of principles regarding the prohibition on direct discrimination under the Racial Discrimination Act 1975 (Cth), including in relation to the concepts of “comparison” , “motive” and “intent”, and the relationship between the designated characteristic and the impugned conduct. (July 2019)
• Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 — for the proposition that, for the purposes of section 96 of the Fair Work Act 2009 (Cth), a “day” of paid personal personal refers to a day of work ordinarily performed by an employee, rather than a notional day of 7.6 hours. (August 2019) [Ed’s note: The High Court of Australia granted special leave to appeal to the unsuccessful appellant in relation to this matter]
• Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409 — for the proposition that the process of determining “the place where the [adverse action] is taken”, for the purposes of section 351(2)(a) of the Fair Work Act 2009 (Cth), turns on the character of the action alleged, with, as in the instant case, a dismissal taking place in the place where the employment relationship is based. (September 2019) [Ed’s note: The identification of “the place where the action is taken” can be significant in circumstances where certain forms of discriminatory conduct, such as discrimination based on “political opinion”, can be unlawful in some states and territories (for example, in Victoria, Queensland, Tasmania, the Northern Territory and the Australian Capital Territory) and not unlawful in others (for example, New South Wales, South Australia and Western Australia).]
• Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 — for the proposition that an employee’s claimed inability to return to work did not constitute a manifestation of his “disability” (relevantly, characterised as “ significant work related stress and depression” and/or “a major depressive disorder associated with significant anxiety”), but rather amounted to a consequence or result of having a “disability”, and, accordingly, found that section 351(1) of the Fair Work Act 2009 (Cth) had not been enlivened (October 2019)
• Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680— for the proposition that a casual employee is capable of being engaged on a “regular and systematic basis” from the commencement of their employment, for the purposes of section 384(2)(a)(i) of the Fair Work Act 2009 (Cth), even if sufficient evidence of the requisite engagement had not accumulated until later during the engagement, and that there is no strict minimum period of time that must elapse before a casual employee is capable of having a “reasonable expectation of continuing employment by the employer on a regular and systematic basis”, for the purposes of section 384(2)(a)(ii) of the Fair Work Act 2009 (Cth). (October 2019)
• Rema Tip Top Asia Pacific Pty Ltd v Grüterich [2019] NSWSC 1594 — for the summary of equitable principles regarding restitution and their application to an employer’s power to recover monies mistakenly overpaid to an employee. (November 2019)
• Construction, Forestry, Maritime, Mining and Energy Union V BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146 — for the proposition that a trade union could bring a General Protections application, in its own right, on behalf of a member who had previously filed with the Fair Work Commission an Unfair Dismissal application, in her personal capacity, without engaging the statutory bar on multiple actions prescribed by section 725 of the Fair Work Act 2009 (Cth). (December 2019)

*Cases that establish a new principle or otherwise summarise, demonstrate or explain existing principles