Recent cases in labour law — August 2021

Welcome to recent cases in labour law — August 2021:

• The Full Court of the Federal Court of Australia (Allsop CJ; Jagot and Rangiah JJ) has held that “intellectual freedom” clauses contained within an enterprise agreement were capable of being contravened, despite their lacking a “precise and comprehensive or exhaustive definition” (at [9] (Allsop CJ)), and observed that the subject rights that flowed from such clauses included, at least, a duty not to punish or threaten to punish a member of academic staff for exercising the right of intellectual freedom in accordance with the relevant clauses of the enterprise agreement ([195] (Jagot and Rangiah JJ)). (National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159)
• The Victorian Court of Appeal (Niall JA; Kennedy JA and McDonald AJA) has held that section 6 of the Long Service Leave Act 2018 (Vic), which relevantly entitles an employee to long service leave on the completion of seven years of “continuous employment with one employer”, does not apply to a period of employment that lacks a sufficient connection to Victoria at the time such employment is undertaken (at [38] (Niall JA) and [92] and [103] (Kennedy JA and McDonald AJA). In so doing, the Court observed that the requisite connection clearly could be drawn, for example, in secondment arrangements and in circumstances where just one of the employee or employer based in Victoria (at [38] (Niall JA)). (Infosys Technologies Limited v State of Victoria [2021] VSCA 219)
• The Federal Court of Australia (Flick J) has held that an employer should not be permitted to re-litigate issues in relation to a dispute under an enterprise agreement, as to do so would permit the employer to engage in an abuse of process, in circumstances where that dispute had already been arbitrated by the Fair Work Commission (at [77]-[99]). In so doing, the Court considered the industrial history of, and case law governing, “no extra claims” clauses (at [100]-[109]); the appropriateness of granting declaratory relief (at [141]-[146]); and the legal principles relevant to the common law duty of an employee to obey lawful and reasonable directions of their employer (at [216]-[220]). (NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883)
• The Industrial Court of Queensland (Davis J) has set aside an award of $35,000 for general and and aggravated damages, and, in substitution, ordered that an award of $130,000 for general and and aggravated damages be paid to a laundry worker, who had been subject to sexually harassing conduct, which resulted in the laundry worker suffering a diagnosed anxiety disorder that caused her to be unable to work (at [39]-[55]). (Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14)
• The Federal Court of Australia (Katzmann J) has held that “organis[ing] or engage[ing] in an unlawful picket”, for the purposes of contravening section 47 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), must generally involve some positive action to induce or procure employees to engage in conduct (such as “marshalling”, “rallying” or “coordinating”) to bring about or maintain industrial action (at [372]-[378]). The Court also usefully summarised the legal principles governing section 500 of the Fair Work Act 2009 (Cth), which relevantly prohibits a holder of an entry permit from hindering or obstructing another person, observing that it is not necessary that the permit holder intended to hinder or obstruct the other person, but rather, just that the permit holder’s actions, which had the effect of hindering and obstructing, were deliberate (at [105] and [110]-[116]). (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920)
• The Full Court of the Federal Court of Australia (Rares, Murphy and Abraham JJ) has usefully summarised the principles relevant to how the Full Federal Court is to conduct an appeal of a decision of a single judge of the Federal Court, with particular consideration given to how the Full Federal Court is to deal with the review, and overturning of, conclusions of law and findings of fact of a trial judge (at [117]-[126]). (Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142)
• The Fair Work Commission (Deputy President Bull) has usefully summarised the legal principles governing whether a party to enterprise bargaining “has been, and is, genuinely trying to reach an agreement”, which is relevantly a pre-requisite to the Commission making a protected action ballot order, for the purposes of section 443(1)(b) of the Fair Work Act 2009 (Cth) (at [5] and [108]-[113]). The Commission has also usefully summarised the legal principles governing whether the default period of notice, which must be given before employee claim action is taken, should be extended pursuant to section 443(5) of the Fair Work Act 2009 (Cth) (at [6] and [206]-[214]). (Application by Australian Rail, Tram and Bus Industry Union [2021] FWC 4391)
• The Federal Court of Australia (Jagot J) has held, for the purposes of rule 10.43(4)(c) of the Federal Court Rules 2011 (Cth) (which relevantly deals with leave to serve an originating application outside of Australia), that there is a prima facie case that the employment of a domestic servant is not necessarily an act performed by a diplomat in the exercise of the diplomat’s functions as a member of a mission, such that diplomatic immunity would not be enlivened under the Diplomatic Privileges and Immunities Act 1967 (Cth) (at [11]-[17]). (Mahmood v Chohan [2021] FCA 973)
• The Full Bench of the Fair Work Commission (Vice President Catanzariti; Commissioner Lee; Commissioner Cirkovic) has held that any payment of redundancy monies to an employee should be deducted from any award of compensation made to an employee found to have been unfairly dismissed (at [41]). (ERGT Australia Pty Ltd v Kevin Govender [2021] FWCFB 4508)
• The District Court of New South Wales (Strathdee DCJ) has usefully summarised the legal principles relevant to the Court’s power to amend the name of a defendant, which appears in a summons commencing a prosecution under the Work Health and Safety Act 2011 (NSW) (at [42]-[61]). (SafeWork NSW v Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW [2021] NSWDC 397)
• The Federal Court of Australia (Murphy J) has ordered that an air services statutory authority pay a pecuniary penalty of $40,950 for breaching consultation provisions of its enterprise agreement (at [158]), and, in so doing, observed the basal significance of employer compliance with such consultation provisions (at [75]-[78] and [156]). (Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993)
• The Federal Circuit Court of Australia (Judge Jarrett) has ordered that an employer pay a penalty of $8,500 for its unlawful deduction of $6,388 from the final pay of one of its employees (at [24]). In so doing, the Court observed that the employer’s conduct in deducting pay from its employee, which was not permitted under the express terms of the parties’ contract of employment, amounted to a deliberate contravention of section 323(1) of the Fair Work Act 2009 (Cth) (at [11]-[21]). (Wellington v Offermans Partners (No 2) [2021] FCCA 1846)
• The District Court of New South Wales (Gibson DCJ) has usefully summarised the case authorities relevant to the summary dismissal of proceedings for want of prosecution, including where a plaintiff conducts themselves as a “reluctant gladiator” in proceedings (at [26]-[39]). (Mehajer v Seven West Media [2021] NSWDC 379)
• The Supreme Court of New South Wales (Rein J) has held that affidavits filed in the usual course of litigation do not attract the application of the Hearne v Street obligation, observing that there existed unanimous intermediate appellate authority in support of such proposition (at [24]-[26]). (Nicholas Arthur Stokes v Molly Harriss Toyne [2021] NSWSC 1049)
• The Federal Court of Australia (Jagot J) has held that the Hearne v Street obligation applied to unredacted defence and unredacted reply pleadings, in circumstances where such documents had been provided to intervening parties to a proceeding on a basis limited to those intervening parties accessing those documents for the purposes of being in heard in an interlocutory suppression proceeding (at [23]-[28]). (Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036)
• The Federal Court of Australia (Rares J) has held, by extensive reference to the English and Australian authorities (at [21]-[37]), that parliamentary privilege operates to ensure that proceedings in Parliament are not actionable outside of the House in which those proceedings occur (at [39]). In so doing, the Court held that parliamentary privilege prevented a party from impeaching or questioning proceedings that had occurred in a parliamentary committee (at [72] and [74]). (Barilaro v Shanks-Markovina (No 2) [2021] FCA 950)