Recent cases in labour law — June 2021

Welcome to recent cases in labour law — June 2021:

• The Full Court of the Federal Court of Australia (Rares, O’Callaghan and Wheelahan JJ) has held that a plumber, a refrigeration technician, and an electrician were not entitled to redundancy pay, when they were terminated from their employment, on the basis the termination of those employees came within the “ordinary and customary turnover of labour” exception to the obligation to pay redundancy pay (at [1]-[4], [50]). In so doing, the Court held that the employees’ contracts of employment, which expressly disclosed that each employee’s employment was conditioned on the employer operating on work sites pursuant to contracts between the employer and its clients, was wholly determinative of the “metes and bound of what the parties must be taken to relevantly have understood or expected” (at [42]) as to the ordinary and customary turnover of labour with respect to their employment (at [40]-[48]). (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Delta FM Australia Pty Ltd [2021] FCAFC 107)
• The Full Bench of the Fair Work Commission (President Justice Ross; Vice President Catanzariti; Commissioner Bissett) has held that, while it is open to the Fair Work Commission to determine whether there existed a valid reason for dismissing an employee from their employment (including a valid reason for dismissal not advanced by an employer) (at [65]), the Commission must act accord procedural fairness to the employee in relying on any reason for dismissal that was not raised by the employer (at [83]-[129]). In so doing, the Full Bench rejected the submission that an employer could waive such reason as being a valid reason for dismissal if the employer failed to rely on that reason when dismissing the employee (at [66]-[82]). Further, the Full Bench held that dishonesty in relation to out of work conduct may not found a valid reason for dismissal, having regard to case law concerning out of hours conduct generally and an employee’s implied contractual duty of good faith and fidelity (at [130]-[170]). (Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457)
• The Federal Court of Australia (Beach J) has held, in the context of the hearing of an interlocutory application, that the “inevitable disclosure doctrine”, which relevantly provides that an employee may be restrained from working for a new employer if the employee has knowledge of their former employer’s trade secrets and their new work has a substantial overlap with their former employer’s work (even where there is no evidence of actual disclosure), is capable of forming part of the Court’s equitable jurisdiction (at [263]-[270]). (Liberty Financial Pty Ltd v Jugovic [2021] FCA 607)
• The Federal Court of Australia (Snaden J) has granted an interlocutory injunction restraining a trade union, and its officers and employees, from requesting information, relating to the demographics of the employer’s workforce, its clients, and its products, from employees of a logistics provider (at [1], [21], [22] and [37]), on the basis that there existed a prima facie case that such requests amounted to a tortious inducement of breaches of the employees’ contractual confidentiality provisions (at [12] and [30]), or, in the alternative, amounted to being “involved in” contraventions of the Corporations Act 2001 (Cth) relating to the improper use of information obtained because a person is a director, officer, or employee of a corporation (at [10], [11], and [33]). (DHL Supply Chain (Australia) Pty Limited v United Workers’ Union [2021] FCA 707)
• The District Court of New South Wales (Scotting DCJ) has held that a worker’s duty of care that arises under section 28(b) of the Work Health and Safety Act 2011 (NSW) imposes on a worker a “duty not to expose those persons to a risk of injury as a result of the immediate conduct of the worker”, which does not relevantly require the occurrence of an actual injury to a person (at [63], [97] and [99]-[106]), following a detailed review of the statutory regime (at [65]-[82]), extrinsic materials (at [83]-[86]) and judicial consideration of similar provisions (at [87]-[96]). (SafeWork NSW v Scharfe [2021] NSWDC 260)
• The Full Bench of the Fair Work Commission (Vice President Hatcher, Deputy President Cross, Commissioner Lee) has observed that a House v The King error need not be established, in the process of the Commission at first instance determining whether a person is an employee or an independent contractor for the purposes of assessing a person’s eligibility to be protected from unfair dismissal, for an appeal to the Full Bench to succeed, as any such error attends ultimately to the Commission’s jurisdiction to hear and determine an application for unfair dismissal (at [27]). (Brendon Hempel v Northern Territory Air Services Pty Ltd [2021] FWCFB 3707)
• The Federal Circuit Court of Australia (Judge Baird) has usefully summarised the principles relevant to whether the provision of a medical certificate will meet the evidence requirements of section 107(3) of the Fair Work Act 2009 (Cth), which requires that an employee give to their employer evidence that would satisfy a reasonable person that the employee is not fit for work because of a personal illness (at [161]-[179]). In the instant case, the Court found that medical certificates, and accompanying correspondence, in support of a general manager’s lack of fitness for work over a period of about five months satisfied the evidence requirements of section 107(3) of the Fair Work Act 2009 (Cth) (at [180]-[197]). Further, the Court held that directions to attend an independent medical examination were neither of lawful nor reasonable, in circumstances where there was no genuine indication of any need for the medical examinations, no genuine indication of any need to attend the workplace, and where relevant medical information, medical certificates, and medical evidence had already been provided (at [207]-[214]). (Wildman v IMCD Australia Limited [2021] FCCA 1161)
• The District Court of New South Wales (Scotting DCJ) has made orders that an healthcare infrastructure company give preliminary discovery, pursuant to rule 5.3 of the Uniform Civil Procedure Rules 2005, over internal company communications and company communications with an external workplace investigations firm, in relation to anticipated proceedings based on a breach of contract arising from an alleged improper and procedurally unfair investigation and dismissal process (at [3], [4] and [46]). Further, and in so doing, the Court observed that “there is recent authority to the effect that an investigation report of the kind that is the subject of these proceedings is not privileged” (at [45]). (Smith v Ventia Pty Limited [2021] NSWDC 236)
• The Supreme Court of New South Wales (Slattery J) has held that documents obtained from an employee’s work laptop, which had been accessed directly or remotely using the employer’s administrator privileges, did not fall within the definition of “computer surveillance” for the purposes of the Workplace Surveillance Act 2005 (NSW) (at [395]-[402]), but that documents obtained as a result of the installation of a key-logger programme could fall within the definition of “computer surveillance” for the purposes of the Workplace Surveillance Act 2005 (NSW) (at [403]-[415]). (Secure Logic Pty Limited v Paul William Noble (№2) [2021] NSWSC 675)
• The Federal Court of Australia (Banks-Smith J) has held that a declaratory order as to the liability of an employer for contraventions of the general protections provisions of the Fair Work Act 2009 (Cth) is interlocutory in nature, following a review of appellate and first instance authorities, with the effect being that a party seeking to appeal such declaratory order requires leave to appeal (at [13]-[25]). (Power Ledger Pty Ltd v Griffiths [2021] FCA 624)
• The Federal Court of Australia (Kerr J) has observed that a trade union’s putting into place of measures to change the cultural and normative conduct of the contravening behaviours of its officers and employees, with respect to the alleged misuse of raising health and safety issues for collateral industrial action purposes, should be taken into account as a mitigating factor in circumstances where an union delegate was found to have engaged in unlawful industrial action in such circumstances (at [7],[8] and [101]). In so doing, the Court held that the penalty to be imposed should be within the lower end of the mid-range rather than in the high range, of the maximum penalty available (at [124]-[130]). (Australian Building and Construction Commissioner v Parker [2021] FCA 704)
• The District Court of New South Wales (Scotting DCJ) has imposed a fine of $90,000 on a company that provided supporting and caring services for children in out-of-home care and children and adults with disabilities,and a fine of $150,000 on the State of New South Wales (Department of Communities and Justice), for breaches of section 19 of the Work Health and Safety Act 2011 (NSW), which resulted in the death of a child with a disability and a casual support worker in a road accident (at [1], [17], [19], [64], [153], [163], and[169]). (SafeWork NSW v SNAP Programs Limited and State of New South Wales (Department of Communities and Justice) [2021] NSWDC 259)
• The Federal Court of Australia (Banks-Smith J) has usefully summarised the principles relevant to the circumstances in which a company director can assert legal professional privilege over advice given personally to that company director (at [18]-[35]). (Nipps (Administrator) v Remagen Lend ADA Pty Ltd, in the matter of Adaman Resources Pty Ltd (Administrators Appointed) (No 3) [2021] FCA 628)
• The Federal Circuit Court of Australia (Judge Obradovic) has held that, following a detailed review of the relevant cases and authoritative texts (at [192]-[206]), section 117 of the Fair Work Act 2009 (Cth), which relevantly provides that a minimum period of notice of termination must be given to an employee, does not displace the common law implication of a term of reasonable notice into a contract of employment that lacks an express term dealing with notice of termination (at [207]-[220]). In so doing, the Court held that a period of 9 months constituted reasonable notice for a 54-year-old administration and human resources manager, who had been employed for nearly 19 years (at [2] and [221]-[234]). (McAlister v Yara Australia Pty Ltd [2021] FCCA 1409)
• The Full Bench of the Fair Work Commission (Vice President Catanzariti; Deputy President Saunders; Commissioner Lee) has held that time spent “donning and doffing” personal protective equipment prior to taking a meal break was not part of a meat worker’s entitlement to an unpaid 30-minute break arising under clause 15.1 of the Meat Industry Award 2020 (at [53]-[57]). In so doing, the Full Bench usefully summarised the authorities relevant to construing the meaning of the statutory word “work” as it appeared in that provision of the Award (at [33]-[43]). (Jay Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691)
• The Federal Court of Australia (Katzmann J) has held that section 83 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) does not operate so as to exclude the common law “course of conduct” principle, in circumstances where two union officials, over the course of two days, had engaged in three discrete contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (at [70], [96], [112], and [162]). (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622)
• The Supreme Court of New South Wales (Schmidt AJ) has held that client legal privilege had been waived over file note and cost record documents held by a law firm, entitling those documents to be compulsorily produced under subpoena (at [38]-[51]), in circumstances where the law firm had commenced proceedings against a client for unpaid fees and the client had cross-claim proceedings against the law firm alleging, among other things, misleading and deceptive conduct (at [1]-[8]). (R.H Anicich & A.J Deegan & Ors t/as Sparke Helmore v Nick Scali Ltd [2021] NSWSC 621)
• The Full Court of the Federal Court of Australia (Murphy and O’Callaghan JJ; Flick J agreeing) has observed that, in a claim based on an employer taking adverse action against an employee because of a prohibited reason, the rule in Browne v Dunn still requires that the nature of the case contradictory to a witness’s evidence be put to the witness in the course of cross-examination, and that pleading the contradictory case will not suffice to comply with the rule in Browne v Dunn (at [22] (Flick J). (Flageul v WeDrive Pty Ltd [2021] FCAFC 102)
• The Federal Court of Australia (Colvin J) has released an engineering company from the so-called Hearne v Street obligation owed to the Court, in relation to a litigation funding agreement to which two trade unions were parties, for the purposes of permitting the engineering company to use such agreement in separate proceedings against those trade unions based on alleged breaches of provision of financial services laws under the Corporations Act 2001 (Cth) (at [3], [4], [6] and [17]). (White v UGL Operations and Maintenance Pty Ltd [2021] FCA 587)
• The Federal Court of Australia (O’Callaghan J) has held that, when determining a penalty for contempt, an offender’s prior convictions for contempt should be treated as relevant to the determination of such penalty, but that prior convictions for other offences dissimilar to contempt should be treated as irrelevant (at [20]). (Ferguson v Dallow (No 5) [2021] FCA 698)