Recent cases in labour law — August 2020

Welcome to recent cases in labour law — August 2020:

  • The High Court of Australia (Kiefel CJ, Nettle and Gordon JJ; Edelman J; Gageler J dissenting) has held that, for the purposes of section 96 of the Fair Work Act 2009 (Cth), a “day” of paid personal personal (also known as “sick leave”) refers to a notional day of work (being one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period), rather than an actual day of work (being the total hours of a ordinary day worked); accordingly, an employee’s entitlement to “10 days” of paid personal leave is to be calculated as being 1/26 of an employee’s ordinary hours of work in a year (at [2] and [110]). (Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29)
  • The Federal Court of Australia (O’Callaghan J) has granted an order of reinstatement to an employee pursuant to section 545(2)(c) of the Fair Work Act 2009 (Cth), and, in so doing, observed that “such an order is the normal consequence of a successful claim of [a breach of section 340 of the Fair Work Act 2009 (Cth)]” (at [8]). Further, the Court briefly summarised the circumstances that would give rise to such an order not being granted (at [9]). (Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 2) [2020] FCA 1215)
  • The Fair Work Commission (Deputy President Asbury) has held that a labourer had been forced to resign, within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth), in circumstances where his employer had failed to respond to sustained bullying, harassment and discrimination to which he had been subjected (at [4], [94]-[98] and [120]). (Mr Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd [2020] FWC 2996)
  • The Fair Work Commission (Commissioner Hunt) has found that the amounts of redundancy pay owed to nine employees should not be reduced pursuant to section 120(1)(b)(ii) of the Fair Work Act 2009 (Cth) ([1], [4], [5] and [46]). In so doing, the Commission observed that a consideration relevant to its decision was the potential consequence that making such an order would prevent the employees from accessing any severance payments under the statutory Fair Entitlement Guarantee scheme should their employer be wound up (at [26]). (The Trustee for Manesh & Jassar Unit Trust T/A Freight For You [2020] FWC 4160)
  • The Fair Work Commission (Deputy President Anderson) has helpfully summarised the test to be applied in determining the lawfulness of a stand down pursuant to section 524(1)(c) of the Fair Work Act 2009 (Cth) (at [53]-[61]), and the fairness considerations required to be taken into account pursuant to section 526(4) of the Fair Work Act 2009 (Cth) (at [62]-[71]). (Kurt Stelzer v The Trustee for The Ideal Acrylics Unit Trust T/A Ideal Acrylics [2020] FWC 4129)
  • The Federal Court of Australia (Katzmann J) has upheld the validity of a notice to produce documents to a Fair Work Inspector pursuant to section 712 of the Fair Work Act 2009 (Cth) (at [at [1], [2] and [53]). In so doing, the Court rejected the submission that the notice involved “some impermissible “retrospective element””, in circumstances where some of the documents sought came into existence prior to the enactment of the a statutory provisions that was a subject of the Inspector’s notice (at [28]-[52]) and, also, helpfully summarised the principles governing the validity of a notice to produce issued under section 712 of the Fair Work Act 2009 (Cth) (at [19]-[23]). (85 Degrees Coffee Australia Pty Ltd v Fair Work Inspector Rodwell [2020] FCA 1190)
  • The Federal Court of Australia (Katzmann J) has helpfully summarised the threshold required to be met for a Court to make an order for “deemed service” (also known as substituted service), pursuant to rule 10.23 of the Federal Court Rules 2011 (Cth) (at [18]). (Fair Work Ombudsman v DTF World Square Pty Ltd [2020] FCA 1178)
  • The Federal Circuit Court of Australia (Judge O’Sullivan) has rejected the submission that “ignorance of workplace laws” and “foreign cultural norms” could be relied upon in mitigation, in a civil penalty prosecution of a fast food company and its general manager for breaches contraventions of the Fast Food Award 2010 and the Fair Work Act 2009 (Cth) (at [1] and [44]). (Fair Work Ombudsman v Skypac Group Pty Ltd & Ors [2020] FCCA 2332)
  • The Fair Work Commission (Deputy President Sams) has usefully summarised the test to be applied, and factors to be considered, when dismissing an unfair dismissal application pursuant to section 399A of the Fair Work Act 2009 (Cth) (at [10]-[17]). (Nathan Thomas v Highway NN Pty Ltd [2020] FWC 3911)
  • The Fair Work Commission (Commissioner Hunt) has declined to dismiss an unfair dismissal application pursuant to section 587 of the Fair Work Act 2009 (Cth) and, in so doing, helpfully summarised the test to be applied when exercising its discretion under such power (at [29]-[36]). (Melissa Bell v Moranbah Boxing and Sporting Club [2020] FWC 4263)
  • The Federal Court of Australia (Wigney J) has usefully summarised the legal principles to be applied when determining if litigation privilege had attached to a documents passing between a client, a lawyer, and a third party (at [37]-[54]). (Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232)
  • The Federal Court of Australia (White J) has helpfully summarised the “special circumstances” that may warrant the release of a party from the so-called Harman undertaking (at [18]). (Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162)
  • The Supreme Court of New South Wales (Williams J) has rejected the submission that the so-called Harman undertaking had not been breached when affidavits produced in response to a so-called Norwich order were relied upon to obtain a search order in the same proceeding (at [36]-[52]). (Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169)

Monthly bulletin of Australian labour law cases