Recent cases in labour law — December 2020

Welcome to recent cases in labour law — December 2020:

  • The Full Court of the Federal Court of Australia (Besanko, Bromberg and O’Bryan JJ) has held that a trade union was not a “corporation” within the meaning of section 4 of the Competition and Consumer Act 2010 (Cth) (at [65]), and that its campaigning and advocacy activities was not conduct that was “in trade or commerce” for the purposes of section 18(1) of the Australian Consumer Law (at [57]). In so doing, the Court usefully summarised the principles relevant to determining whether an entity will be a “corporation” within the meaning of section 4 of the Competition and Consumer Act 2010 (Cth) (at [37]-[38] and [62]-[65] and the principles relevant to determining whether conduct is “in trade or commerce” for the purposes of section 18(1) of the Australian Consumer Law (at [27]-[36] and [51]-[57]). (ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) v Transport Workers’ Union of Australia [2020] FCAFC 231)
  • The Full Court of the Federal Court of Australia (Jagot, Markovic and Thawley JJ), following a detailed review of the Australian and English authorities regarding the so-called Hearne v Street obligation (at [39]-[82]), has held that such obligation applies “not only to the documents themselves but also to the information in the documents” and, further, that such obligation “applies to a document filed in court or discovered under compulsion until the document is admitted into evidence considered”(at [83]). Further, the Court also considered, in obiter, the factors that a Court should take into account when determining if relief should be granted from the Hearne v Street obligation (at [95]-[105]). (Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226)
  • The Federal Court of Australia (Collier J) has admitted “tendency” evidence and “coincidence” evidence, which demonstrated that a chicken processing factory a “propensity” to engage in sexually harassing conduct or a “culture” that increased the likelihood of such conduct occurring pursuant to sections 97 and 98 of the Evidence Act 1995 (Cth), whilst observing that the weight of such evidence would still need to be assessed against all of the evidence admitted in the proceeding (at [142]-[144] and [166]-[167]). In so doing, the Court helpfully summarised the test to be applied in determining if “tendency” evidence and “coincidence” evidence should be admitted (at [144]); the authorities governing the admission of such evidence (at [145]-[148]); and the application of the authorities to a civil claim based on contraventions of the Sex Discrimination Act 1984 (Cth) (at [158]-[165]). (Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784)
  • The Federal Court of Australia (Bromwich J) has usefully summarised the principles relevant to determining if a contract of employment has been entered into, in the absence of a signed and formal contract of employment (at [44]-[48]); the principles relevant to determining the proper identity of an employer, in circumstances where an employee could have multiple possible employers (at [51]-[52]); and the principles relevant to quantifying loss, in circumstances where a person’s breach of their contractual, statutory and fiduciary duties (in respect of a misuse company information) caused difficulties in proving and calculating such loss (at [339]-[350]). (Central Innovation Pty Ltd v Garner (No 4) [2020] FCA 1796)
  • The District Court of New South Wales (Scotting DCJ) has helpfully set out the principles relevant to the standard of proof that apply to a case involving allegations of dishonesty and fraud (at [93]-[102]) and, further, usefully set out the principles relevant to the assessment of damages for a claim based on a summary dismissal from a contract of employment, including in relation to claims for loss of opportunity damages and the so-called “least burdensome” rule (at [311]-[330]). (Sherry v Toyota Motor Corporation Australia Limited [2020] NSWDC 827)
  • The New South Wales Court of Appeal (Payne JA and Simpson AJA; Brereton JA agreeing) has allowed, in part, an appeal against interlocutory orders of the District Court of New South Wales, holding that the primary judge erred in joining the state of New South Wales, and removing two individual defendants from proceedings, involving claims based on malicious prosecution (at [1], [3] and [68] (Payne JA and Simpson JA); [81] (Brereton JA)). In so doing, the Court observed that a plaintiff is generally entitled to advance a case that is narrower than the broadest case available, insofar as a plaintiff can bring proceedings against individual defendants without bringing proceedings against their employer (at [18], [20] and [21]-[42] (Payne JA and Simpson JA); [77]-[78] (Brereton JA)). Further, the Court also observed that “it is by no means clear that [the Director of Public Prosecutions and the Secretary of the NSW Department of Communities and Justice] are relevantly employee[s] [of the State of New South Wales” (at [75] (Brereton JA)). (Burton v Babb [2020] NSWCA 331)
  • The Federal Court of Australia (Perram J) has held that, on a proper reading of the relevant transitional provisions, the recently enacted whistleblower protection provisions, which appear in new Part 9.4AAA of the Corporations Act 2001 (Cth), do not apply to detrimental conduct that occurred before those amendments came into effect (at [5]-[9]). (Alexiou v Australia and New Zealand Banking Group Limited [2020] FCA 1777)
  • The New South Wales Court of Criminal Appeal (Hoeben CJ at CL; Fagan J; Cavanagh J) has allowed an appeal against a sentence imposed by the District Court of New South Wales against a metal packing manufacturer for its breaches of the Work Health and Safety Act 2011 (NSW), holding that such sentence was manifestly inadequate and, in so doing, increased the penalty to be applied from $75,000 to $300,000 (at [1], [2] and [15]-[19]). (Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319)
  • The New South Wales District Court (Scotting DCJ) has helpfully summarised the relevant applicable to breaches of a person’s primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW) (at [50]-[75]); the relevant test to ascertain causation in such cases (at [76]-[78]); the availability and application of the defence of honest and reasonable mistake of fact to such cases (at [79]-[81]). (SafeWork NSW v Assign Blue Pty Ltd [2020] NSWDC 756)
  • The New South Wales District Court (Scotting DCJ) has ordered that new evidence proposed to be led by the SafeWork NSW be excluded , on the basis that the defendant could not receive a fair trial because such evidence had only recently been disclosed to the defendant (at [2], [3] and [47]). In so doing, the Court helpfully summarised the legal principles relevant to a prosecutor’s duty to disclose evidence on which it will rely and indicate how such evidence will be used (at [29]-[37]). (SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 835)
  • The Federal Circuit Court of Australia (Judge Mercuri) has held that the Court could, in its small claims jurisdiction pursuant to section 548 of the Fair Work Act 2009 (Cth), deal with an employee’s claims against his former employer for unpaid expenses, on the basis that such claims, which could arise from breaches of implied contractual terms contained in the parties’ contract of employment, could fall within the scope of a “safety net contractual entitlement” as such an entitlement could relate to a prescribed matter under section 139(1)(g) of the Fair Work Act 2009 (Cth) (at [51]-[60]). (Kotaidis v Fujitsu Australia Ltd [2020] FCCA 3334)
  • The New South Wales Industrial Relations Commission (Commissioner Webster) has granted a stay of pending the finalisation of anticipated New South Wales Court of Criminal Appeal proceedings and required the applicant to give an undertaking that any orders sought for lost remuneration would exclude the period between the date of the stay and the dissolution of the stay (at [50]). In so doing, the Commission helpfully summarised the factors relevant to the grant, or lack thereof, of a stay of proceedings by reference to the relevant authorities (at [18]-[29]) and lengthy extracts of the parties’ submissions in relation to those factors (at [30]-[34]). (Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084)
  • The Fair Work Commission (Commissioner Johns) has usefully summarised the authorities relevant to determining whether a contract of employment is for a “specified task” for the purposes of section 386(2)(a) of the Fair Work Act 2009 (Cth) (at [14]-[23]) and further observed that the existence a broad and unconditional contractual right to terminate employment on notice would be contrary to a finding that a contract of employment was a contract for a “specified task” (at [40]). (Jesse Savill and Stephen Harding v S&DH Enterprises Pty Ltd [2020] FWC 7109)
  • The Fair Work Commission (Deputy President Asbury) has held that the remuneration a gym manager would have received, or would have been likely to receive, if he had not been dismissed would have covered the 24-week period between the date of his dismissal and the cessation of the federal government’s JobKeeper programme (at [77]-[85]). (Mr Rhayne Cooper v The Trustee for Cleveland 24/7 Unit Trust [2020] FWC 6715)
  • The Federal Court of Australia (Abraham J) has sentenced a man to eight months imprisonment, following the man’s entry of a guilty plea in response to a charge of contempt of the Australian Criminal Intelligence Commission (at [1] and [4]). In so doing, the Court helpfully summarised the legal principles relevant to sentencing for statutory contempt offences (at [31]-[39]). (Lusty v CRA20 [2020] FCA 1737)
  • The Federal Court of Australia (White J) has usefully summarised the criteria to be satisfied to obtain preliminary discovery pursuant to rule 7.23 of the Federal Court Rules 2011 (Cth) (at [26]-[27]) and the evidence generally required in applications for preliminary discovery (at [28]-[34]). (Outback Stores Pty Ltd v Smith [2020] FCA 1785)
  • The Federal Court of Australia (Besanko J) ordered that a respondent provide answers to interrogatories to assist a plaintiff make an election between seeking an order for damages or an order for an account of profits (at [at [1]-[9]). (Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 2) [2020] FCA 1806)
  • The Defence Force Discipline Appeal Tribunal (Logan J (President); Brereton JA (Deputy President); Barr J (Member)) has held that, under the common law, a Defence Force Magistrate is required to give reasons for their decisions, notwithstanding that such magistrates are not judges appointed under Chapter III of the Australian Constitution, observing that a Defence Force Magistrate is obliged to act judicially (at [50]-62]). (Mikus v Chief of Army [2020] ADFDAT 1)
  • The Supreme Court of New South Wales (Stevenson J) has helpfully summarised the rules of construction that apply to the construction of court orders, observing that “[t]he “court construes [the orders] just like any other document. It does not delve into the subjective intention of the judge pronouncing [them]”” (at [7]-[8]). (The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1883)

Monthly bulletin of Australian labour law cases