Recent cases in labour law — December 2019

Welcome to recent cases in labour law — December 2019:

  • The Federal Court of Australia (Collier J) has held 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 (at [4]-[9], [22]). In so doing, the Court found that the bringing of such a General Protections application would not be contrary to section 725 of the Fair Work Act 2009 (Cth), which relevantly prevents a person from themselves filing both of a General Protections application and Unfair Dismissal application in relation to their dismissal (at [24]-[38]). (Construction, Forestry, Maritime, Mining and Energy Union V BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146)
  • The Federal Court of Australia (Collier J) has declared that an employer had breached a clause of its enterprise bargaining agreement, which stipulated that “[the employer] may require an employee to work reasonable overtime and the employee shall work such overtime as required”, in circumstances where the employer had required its employees to work 8.75 overtime hours per week, in excess of their ordinary working hours of 35 hours per week (which relevantly accumulated to 455 overtime hours per annum) (at [2], [5], [69] and [73]). In so doing, the Court considered, among other things, the case law regarding “reasonable overtime” (at [46]-[48]) and the whole of the enterprise bargaining agreement and its stated definition of “reasonable overtime” as being 104 hours per annum (at [7], [66]-[68]). (Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services [2019] FCA 2145)
  • The New South Wales Court of Appeal (Meagher JA, Bell ACJ and Barrett AJA agreeing) has observed that the opportunity to seek alternative employment with the “benefit of incumbency” was not a compensable loss of opportunity (at [53]-[60]). (Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust [2019] NSWCA 310)
  • The District Court of Queensland (Barlow QC DCJ) has found that an employee had deliberately breached contractual confidentiality obligations owed to his former employer on at least seven occasions (at [120]), albeit in circumstances where no loss or damages had been actually suffered as a result of the employee’s breaches (at [119]). In these premises, the Court ordered that the former employee pay to his former employer a nominal sum of $100 for each contractual breach he committed, totaling $700 plus interest (at [121]-[122]). (Champions Ride Days Pty Ltd v McFarlane & Anor [2019] QDC 236)
  • The Federal Circuit Court of Australia (Judge Riethmuller) has affirmed that proceedings based on contraventions of the Fair Work Act 2009 (Cth), which had been commenced against a company and its sole director and shareholder, may be continued alone against the sole director and shareholder in circumstances where the company had been placed in liquidation and the proceeding against it had been stayed (at [1], [2] and [11]). In so doing, the Court observed that, in his “the claimant [would] still need to prove all of the necessary elements of the action, which includes proof that the principal breached a civil remedy provision” and that “[a]s the proceeding against the principal … are stayed, the findings as between the applicant and [the company] [would] not bind the [the company] and there will therefore be no apparent prejudice to the [the company’s] rights” (at [11]). (Lal v Biber & Anor [2019] FCCA 3653)
  • The Federal Circuit Court of Australia (Judge Manousaridis) has declined to strike out paragraphs from a Statement of Claim, which alleged that the respondent’s failure to renew a fixed-term contract of employment constituted “adverse action” (at [26]), observing that such conduct could relevantly fall within Item 2(a) of section 342 of the Fair Work Act 2009 (Cth) (which relevantly states that “[a]dverse action is taken by… a prospective employer against a prospective employee… if the prospective employer … refuses to employ the prospective employee”) (at [22]-[25]). (Botha v George Weston Foods Limited Trading as Tip Top Bakeries (Chullora) [2019] FCCA 3700)
  • The Federal Circuit Court of Australia (Judge Egan) has usefully set out, in the format of written submissions, the approach to be taken to determine the total compensation payable to an applicant for past economic loss suffered, having regard to the tax liability that would apply to such judgment sum (at [3], [8]-[9])(Smith v SBP Employment Solutions Pty Ltd & Ors (№3) [2019] FCCA 3516).
  • The Federal Court of Australia (Rares J) has usefully summarised the principles to be applied when considering whether or not a subpoena should be aside in civil penalty proceedings (at [9]-[17]). (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087)

Monthly bulletin of Australian labour law cases