Recent cases in labour law — February 2021

Welcome to recent cases in labour law — February 2021:

• The Full Court of the Federal Court of Australia (Bromberg and Kerr JJ; Flick J, dissenting) has held that an employer’s voluntary election to be bound by a former employer’s enterprise agreement could be objectively ascertained from its conduct in structuring its acquisition of the former employer’s childcare business and, in so doing, held that the employer had consented to participate in private arbitration to be conducted by the Fair Work Commission in accordance with a dispute resolution clause contained in the former employer’s enterprise agreement (at [78]-[85] (Bromberg and Kerr JJ)). In so doing, the Court usefully discussed, by reference to the case law, the distinction between judicial power and arbitral power within the context of private arbitration (at [59]-[77] (Bromberg and Kerr JJ)) and unanimously disagreed with the primary judge’s observation that the employer’s consent had been achieved by way of “statutorily mandated consent” (at [38] (Flick J) and [80] (Bromberg and Kerr JJ)). (One Tree Community Service Inc v United Workers’ Union [2021] FCAFC 15)
• The Federal Court of Australia (Wheelahan J) has held that amounts referable to an employee’s casual loading cannot be deducted from an employee’s entitlement to an advance for unpaid annual leave or redundancy payments under the Fair Entitlement Guarantee Act 2012 (Cth), in circumstances where the employee was found to have been a permanent employee for the purposes of the Black Coal Mining Industry Award 2010 and the Fair Work Act 2009 (Cth), on the basis that the such payments were not “attributable to the entitlement” in accordance with section 19(2) of the Fair Entitlement Guarantee Act 2012 (Cth) (at [3], [116] and [124]). In so doing, the Court helpfully observed that the an employment relationship represents a “compound of statutory elements and of the common law of contract, where the statutory elements predominated” (at [9]); that “contractual terms of employment may provide for additional benefits, but cannot be effective to derogate from the statute and the benefits that it confers, whether under the National Employment Standards, or under the Award” (at [93]); and that, rather than the doctrine of illegality sterilising terms of a contract of employment that are inconsistent provisions with the Fair Work Act 2009 (Cth), any such terms of the contract would be “simply ineffective to displace the statutory obligations [of the Fair Work Act 2009 (Cth)]” (at [101]-[102]). (Warren v Secretary, Attorney-General’s Department [2021] FCA 89)
• The Federal Court of Australia (Abraham J) has held that a police officer is an employee for the purposes of the Disability Discrimination Act 1992 (Cth) (at [6], [96]-[125]); that, in the police officer’s claim based on direct disability discrimination, the revocation of the police offer’s appointment as a leading senior constable was a denial or limiting of access to opportunities for promotion, transfer or training, or was subjecting the police officer to a detriment, within the meaning of section 15(2)(b) or 15(2)(d) the Disability Discrimination Act 1992 (Cth), respectively, rather than the police officer’s pleaded case that the alleged discrimination had occurred in the provision of terms or conditions of employment to the police officer, within the meaning of section 15(2)(a) of the Disability Discrimination Act 1992 (Cth) (at [9], [194]-[212]); and that, in the police officer’s claim based on indirect disability discrimination, the inherent requirements of the leading senior constable position, as alleged by the Commissioner of Police, were reasonable (at [11], [243]-[258]). (Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106)
• The Federal Court of Australia (Rangiah J) has declined to make a personal payment order against an union official, on the basis that the Australian Building and Construction Commissioner had failed to seek such an order in its originating application and that to grant such an order would not be just in the circumstances (at [59]-[70]). The Court also usefully summarised the principles relevant to the determination of the “appropriate” civil penalties to be imposed on a recidivist contravener (at [21]-[28]), observing that such recidivism “does not of itself require assessment of a penalty at the highest level” and that it remained “necessary to take into account all the circumstances that bear upon the character and seriousness of the contravention before the Court” (at [29]). (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105)
• The Supreme Court of Queensland (Bowskill J) has held that, for the purposes of the whistleblower protection provisions, which appear in Part 9.4AAA of the Corporations Act 2001 (Cth), matters that are not within the knowledge of the discloser at the time of the disclosures are not relevant to to question of whether the discloser had “reasonable grounds to suspect” that their information concerned misconduct or an improper state of affairs or circumstances; accordingly, a discloser cannot rely on matters not known to them in alleging that a disclosure satisfied the “reasonable grounds to suspect” requirement contained in 1317AA(4) or 1317AA(5) of the Corporations Act 2001 (Cth) (at [22]-[37]). (Quinlan v ERM Power Ltd & Ors [2021] QSC 35)
• The Full Bench of the Fair Work Commission (Vice President Hatcher; Deputy President Gostencnik; Deputy President Mansini) has held that, in dealing with a dispute under section 526 of the Fair Work Act 2009 (Cth), the Commission may permissibly make a “monetary order to resolve a stand down dispute based on its consideration of what is a fair outcome between the parties and other issues relevant to the industrial merits of the matters”, but cannot make a monetary order with respect to a claim for unpaid wages arising from an industrial instrument of contract of employment (at [27]). In so doing, the Commission, drawing from the High Court authorities, observed the difficulties in delineating arbitral power from judicial power (at [16]-[20]), and further observed that the making of a monetary order would not, always nor by itself, constitute an impermissible exercise of judicial power (at [21]-[26]). (Christopher Carter v Auto Parts Group Pty Ltd [2021] FWCFB 1015)
• The Supreme Court of the Northern Territory (Brownhill J) has dismissed an application for judicial review against orders of a Northern Territory Local Court Judge, who allowed a prosecution under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) to proceed, on the basis that the Work Health Authority’s complaint was valid and, in the alternative, could be amended to cure defects contained within it (at [1]-[4] and [90]). (Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9)
• The Full Bench of the Fair Work Commission (Vice President Catanzariti; Deputy President Anderson; Commissioner Bissett) has allowed an appeal against a decision of the Fair Work Commission, holding that the Commission had erred in making an order that a labour-hire employee be reinstated to a position with a host employer, in circumstances where the host employer had a contractual right against the labour-hire employer to exclude labour-hire employees from its worksite (at [15]-[22]). (CUB Pty Ltd T/A Carlton & United Breweries v Chaya Johnson; Chelgrave Contracting Australia Pty Ltd [2021] FWCFB 411)
• The Full Bench of the Fair Work Commission (Vice President Catanzariti; Deputy President Anderson; Commissioner Bissett) has observed that JobSeeker payments, as a form of social security payments, cannot be counted as “remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation” for the purposes of section 392(2)(e) of the Fair Work Act 2009 (Cth) (at [15]-[29]). Accordingly, such payments could not be deducted from an award of compensation made to an applicant in an unfair dismissal proceeding (at [39]-[42]). (Megan Smith v Fearon Howard Real Estate Pty Ltd T/A Ray White (Balmain) [2021] FWCFB 581)
• The England and Wales Court of Appeal (Singh LJ; Laing LJ and Henderson LJ agreeing) has held that the doctrine of res judicata does not apply to disciplinary proceedings conducted by a trade union, on the basis that the trade union was not an independent body invested by law with jurisdiction to determine the legal rights of the parties (at [49]-[70]). (Unite the Union v Alec McfAdden [2021] EWCA Civ 199)
• The England and Wales Court of Appeal (Vos MR; Asplin LJ and Green LJ agreeing) has held that former employees, who have or may have used personal electronic devices to send receive work-related messages and emails, could be asked by a party to proceedings to produce documents from those devices, in accordance with Part 31 of the Civil Procedure Rules 1998 (UK) (at [1],[24]-[30], and [54]), subject to appropriateness and proportionality considerations (at [33]-[51]). (Phones 4U Ltd v EE Ltd & Ors [2021] EWCA Civ 116)