Recent cases in labour law — August 2023

Welcome to recent cases in labour law — August 2023:

• The Federal Court of Australia (Bromberg J) has usefully summarised the authorities relevant to determining whether an employee will be entitled to overtime for additional hours worked pursuant to a clause in an industrial instrument, observing that “requests, requirements or other approvals made or given to an employee by his or her employer” can be made expressly or impliedly (at [73]-[89]). Further, the Court also held, having regard to the relevant authorities (at [366]-[375]), that in an underpayment claim for overtime worked systematically over a period of time “there is nothing ‘inappropriate’ about proving that overtime was worked, and/or the amount of overtime, by the applicant giving evidence about the time taken to do a particular task that was done in overtime, and the regularity of that task” and further that “[there] is no rule of evidence, nor is there a common practice, requiring proof of an underpayment claim by reference to a ‘particular day’ or date” (at [376]). (Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939)
• The Federal Court of Australia (Snaden J) has held that an applicant, who alleges that a corporate respondent has contravened the General Protections provisions of the Fair Work Act 2009 (Cth), must plead the identity of the persons alleged to have engaged in the adverse action that is the subject of any such contravention, observing that section 361(1) of the Fair Work Act 2009 (Cth) facilitates, by means of a rebuttable presumption, proof of one aspect of the applicant’s case, but does not otherwise relieve the applicant from properly pleading their case (at [38]-[46]). (Forshaw v Qantas Airways Limited [2023] FCA 957)
• The Federal Court of Australia (Snaden J) has observed that the “course of conduct” principle would apply differently to an individual accessorial contravener, who was found to be “involved in” the contravention of several terms of a modern Award, than to a principal corporate contravener, holding that if an individual’s conduct is alleged (and proven) to comprise a failure to ensure compliance with several terms of a modern Award pursuant to section 45 of the Fair Work Act 2009 (Cth), the individual would only be liable for a single contravention (in contrast to a corporate contravener who would be liable for each of its failure to comply with each of the several terms of the modern award) (at [139]-[134]). In doing so, the Court observed that the situation, however, might be different if it was pleaded (and proven) that the individual engaged in discrete forms of conduct that comprised several discrete failures to ensure compliance with each of the several terms of the modern Award (at [135]). (Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge Manousaridis) has held that, for a person to be accessorily liable for a breach of a modern Award, the person must know of the conduct that constituted the contraventions of the modern Award and the existence of each term of the modern Award that had been contravened (but that there is no need for the person to know that the conduct constitutive of the contraventions was itself unlawful) (at [37]). (Fair Work Ombudsman v Chatime Australia Pty Ltd (No 2) [2023] FedCFamC2G 712)
• The Supreme Court of New South Wales (Richmond J) has helpfully summarised the legal principles relevant to determining if an oral contract has been entered into (at [18]-[22]), observing that the party seeking to prove the existence of the contract “must prove to the reasonable satisfaction of the Court (in the sense of an actual persuasion) that the words he alleges were said in the alleged conversation… and that the alleged consensus resulting from those conversations was capable of forming a binding agreement and was intended by the parties to be legally binding” and also observing that regard may be had to the surrounding circumstances and post-contractual conduct of the parties (at [23]). (Douglas v Mikhael & Ors [2023] NSWSC 979)
• The Supreme Court of New South Wales (Cavanagh J) has usefully summarised the legal principles relevant to the defence of witness immunity (at [53]-[65]), observing that the defence of witness immunity can be enlivened with respect to the work of an expert witness conducted out-of-court, including in circumstances where a medico-legal report has been prepared by an expert witness prior to the commencement of court proceedings and in circumstances where the author of the report does not actually give evidence in any court proceedings (at [83]). (Hastwell v Parmegiani [2023] NSWSC 1016)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge Lucev) has held, following a detailed review of the relevant authorities (at [47]-[59]), that an employer may impliedly authorise an employee to work overtime in circumstances where, for example, there is no alternative but for the employee to work such overtime; the employee has a legitimate expectation that overtime is to be worked (arising from the conduct of the employer); and there is an ongoing understanding or arrangement between the employee and their employer that the employee will work overtime (at [60]). (Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714)
• The New South Wales Court of Appeal (Leeming JA; Stern JA; Simpson AJA) has usefully summarised the principles and key authorities regarding the Court’s power to correct obvious drafting errors, including semantic errors, conceptual errors, and numerical cross-referencing errors, in legal documents such as primary and delegated legislation (at [43]-[59]). (Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182)
• The Full Court of the Federal Court of Australia (Bromberg and Wheelahan JJ; Snaden J) has helpfully summarised the principles and key authorities regarding the Court’s power to dispose of appeals by consent, including, in particular, in relation to the setting aside of declarations (at [6]-[15]). (Wardman v Macquarie Bank Limited (No 2) [2023] FCAFC 125)
• The Full Court of the Federal Court of Australia (Moshinksy, Abraham, and Raper JJ) has held that the whistleblower protections under Part 3.4AAA of the Corporations Act 2001 (Cth) do not apply to “detrimental conduct” that had been engaged in prior to 1 July 2019, regardless of whether the detriment continued on or after 1 July 2019 (at [1] and [35]). (Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132)
• The Supreme Court of New South Wales (Hammerschlag CJ in Eq) has helpfully summarised the legal principles relevant to construing a clause in a partnership agreement that facilitated a board of partners to retire a partner from the partnership agreement (at [43]-[49]). (Gregg v Burrowes & Ors (trading as PricewaterhouseCoopers) [2023] NSWSC 895)
• The District Court of New South Wales (Russell SC DCJ) has usefully summarised the legal principles relevant to the grant of a suppression or non-publication order pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) (at [24]-[29]), observing that mere distress and embarrassment, which does not rise to the level of a psychological threat to safety, was insufficient for a non-publication to be granted in the circumstances of the instant case (at [30]-[38]). (SafeWork NSW v Edstein Creative Pty Ltd (№3) [2023] NSWDC 335)
• The Fair Work Commission (Deputy President O’Neill) has held that the filing of a blank and unsigned Form F8 is sufficient to satisfy the requirements of section 366(1) of the Fair Work Act 2009 (Cth) (at [13]-[34]). (Amy Brunskill v Federation Children Nth Geelong Pty Ltd [2023] FWC 1756)
• The Fair Work Commission (Commissioner Matheson) has held that there is no requirement that a general protections application involving dismissal has to plead material facts, finding that an unparticularised application was sufficient to satisfy the criterion of section 365 of the Fair Work Act 2009 (Cth) (at [2], [6], [38], [53], and [55]. (Julia Cochrane v Tilers Trade Outlet (Vic) Pty Ltd T/A Tilers Trade Outlet (Vic) Pty Ltd [2023] FWC 2071)