Recent cases in labour law — February 2020

Welcome to recent cases in labour law — February 2020:

  • The Full Court of the Federal Court of Australia (Rangiah and Charlesworth JJ; Snaden J dissenting) has clarified that, for the purposes of section 341(1)(c)(ii), the potential sources of an employee’s ability to make a “complaint” or “inquiry” include workplace laws, legislative provisions that are not workplace laws, contractual terms and the general law (at [16]) and further provided some examples of such sources that could found a statutorily protected complaint or inquiry (at [17]-[20] and [26]-[27]). (PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15)
  • The Full Bench of the Fair Work Commission has held that it was not reasonably open to the Commission at first instance to find that a memetic parody video clip, which concerned an employer’s purported approach to enterprise bargaining, was “offensive and inappropriate” (at [29]). Further, the Full Bench observed that the sharing of the video clip to “a private Facebook page accessible by fellow employees covered by the 2014 Agreement” was “ purely out-of-work conduct, and the evidence did not demonstrate that it had any relevant adverse effect on the conduct of work at the [employer’s work premises]” (adopting the approach taken in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, 250 IR 27 at [104]) (at [33]). (Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820)
  • The Federal Circuit Court of Australia has ordered that a respondent commercial aviation services operator pay fines of $10,800 to the plaintiff professional association (at [61]), in circumstances where the respondent had admitted it had failed to provide three pilots with Fair Work Information Statements, and further failed to provide those pilots with rosters that complied with the Air Pilots Award 2010 (at [5). Despite finding that the pilots had suffered no financial loss (at [32]), the Court observed that the respondent’s failure to provide proper rosters “could cause inconvenience and disruption to employees” (at [33]) and concluded the respondent’s contraventions were of “low to moderate severity”. (Australian Federation of Air Pilots v Geraldton Air Charter Pty Ltd [2020] FCCA 380)
  • The Federal Circuit Court of Australia has held that subjecting a person to bullying, including organisation-wide bullying and targeted bullying, is capable of constituting an “injury” to a person’s employment within the meaning of section 342(1)(b) of the Fair Work Act 2009 (Cth) (at [258]-[263]), but that such conduct would not relevantly alter the position of an employee to their prejudice within the meaning of section 342(1)(c) of the Fair Work Act 2009 (Cth) (at [264]). (Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214)

Monthly bulletin of Australian labour law cases