Recent cases in labour law — July 2023

Welcome to recent cases in labour law — July 2023:

• The Full Bench of the Fair Work Commission (Vice President Catanzariti; Deputy President Gostencnik; Deputy President Clancy) has held that the Commission cannot vary a terminated enterprise agreement, pursuant to section 217 of the Fair Work Act 2009 (Cth), on the basis that the enterprise agreement no longer “covered” the party who sought to vary it (at [14], [19]-[20] and [60]). (Qube Ports Pty Ltd T/A Qube Ports v Construction, Forestry, Maritime, Mining and Energy Union — The Maritime Union of Australia Division [2023] FWCFB 102)
• The District Court of New South Wales (Russell SC DCJ) has held that, where there has been an increase in the maximum penalty for an offence provision, and a defendant is convicted of a continuing offence against the offence provision, the increased maximum penalty is to be applied at sentence (at [29]-[39]). (SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274)
• The New South Wales Court of Appeal (White JA; Simpson AJA; Basten AJA) has affirmed the observations of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] as to the principles applicable to the presentation of speech in affidavits (at [119]). (Gan v Xie [2023] NSWCA 163)
• The Supreme Court of New South Wales (Rees J) has usefully summarised the principles relevant to ascertaining the terms of an informal or oral contract (at [204]-[208]). (White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817)
• The Federal Court of Australia (Jackman J) has observed that, though it is permissible to examine post-contractual conduct to infer the terms of an informal or oral contract, “it is necessary to avoid the fallacy of inferring, from conduct which is not inconsistent with a contract, the conclusion that the conduct actually took place because of the contract” (at [59]). (Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826)
• The Fair Work Commission (Deputy President Wright) has helpfully summarised the principles relevant to determining if an employee’s demotion constitutes a “dismissal” for the purposes of section 386 of the Fair Work Act 2009 (Cth), observing that the issues to be determined may include whether the demotion was voluntarily consented to, whether the demotion was authorised by contract or an industrial instrument, and whether the demotion constituted a repudiation that had been accepted (at [37]-[38]). (Rory Maloney v Knowmore Legal Service Limited [2023] FWC 1780)
• The New South Wales Civil and Administrative Tribunal (Deputy President M Harrowell) has held that the Tribunal has the power to award costs in a matter before it, which is later determined to be a federal matter that the Tribunal would lack jurisdiction to hear and determine, on the basis that the power to award such costs does not itself involve a prohibited exercise of federal judicial power (at [42]-[54]). (Auskosu Pty Ltd v Lendlease Real Estate Investments Limited; Auskosu Pty Ltd v Lendlease Real Estate Investments Limited [2023] NSWCATCD 33)
• The Federal Court of Australia (Goodman J) has usefully summarised the principles regarding waiver of legal professional privilege, in circumstances where waiver is alleged on the basis that the provision of legal advice has been referred to in an affidavit (at [1], [8]-[19]). (Qantas Airways Limited v Australian and International Pilots Association [2023] FCA 853)
• The Federal Court of Australia (Burley J) has usefully summarised the principles regarding the Court’s power to make orders for the inspection of property pursuant to rule 14.01 of the Federal Court Rules 2011 (Cth), observing that such principles include the strength of the applicant’s case and the utility and contribution that would follow from the making of such an order (at [23]-[24]). (Alzheimer’s Association of Queensland Inc v Nabelsy [2023] FCA 851)
• The Supreme Court of New South Wales (Hammerschlag CJ in Eq) has observed that a non-disparagement clause contained in a deed of release could, in principle, be a restraint of trade, but, in the circumstances of the case did not constitute a restraint of trade at ([97]-[99]). (Network Ten Pty Limited v van Onselen [2023] NSWSC 829)
• The New South Wales Civil and Administrative Tribunal (Deputy President M Harrowell and Principal Member K Rosser) has usefully summarised the principles regarding how and when inferences can be drawn in civil penalty proceedings (at [44]-[49]). (The Owners — Strata Plan No 4393 v Roberts [2023] NSWCATCD 57)