Recent cases in labour law — May 2020

Welcome to recent cases in labour law — May 2020:

• The Full Court of the Federal Court of Australia (Bromberg J; White J; and Wheelahan J) has held that a production worker had been engaged as a permanent employee, rather than a casual employee, and, in so doing, provided further guidance on the indicia relevant to determining whether or not an employee has a “firm advance commitment” to the duration of their employment or their agreed pattern of work (White J at [441]-[444], with whom Wheelahan J agreed, at [952]; Bromberg J at [71]-[75]). Further, the Court rejected the employer’s claim that the weekly payments it had to made to the production worker could be “set off” against the statutory entitlements that were now owed, as a result of the Court’s findings regarding the production worker’s employment status; in so doing, the Court provided useful guidance on the principles regarding an employer’s entitlement to “set-off” wage payments it had made against other entitlements owed (Bromberg J at [218]-[235]; White J at [865]-[870]; Wheelahan J at [1007]-[1008]). (WorkPac Pty Ltd v Rossato [2020] FCAFC 84)
• The Full Court of the Federal Court of Australia (Bromberg, Colvin and Abraham JJ) has held that, for the purposes of section 342(2) of the Fair Work Act 2009 (Cth), a “[threat] to take action” will constitute “adverse action” if the “threat” is a threat to bring about the effect of an identified form of adverse action, in the present case, “the effect of prejudicing an independent contractor in relation to a contract for services”; accordingly, the identified form of adverse action must form part of that which is threatened (at [22]-[26]). Furthermore, and significantly, the Court held that section 361 of the Fair Work Act 2009 (Cth) (being a provision that partially reverses the burden of proof as regards a person’s “intent” to take certain actions) applies to the statutory prohibitions on “coercion” (being sections 343, 348 and 355 of the Fair Work Act 2009 (Cth)) (at [83]-[93]), following a detailed review of the statutory language (at [55]-[59]), the decided cases (at [60]-[74]) and various statutory contextual matters (at [75]-[82]). (Australian Building and Construction Commissioner v Molina [2020] FCAFC 97)
• The Federal Court of Australia (Flick J) has held that an employee, who has been stood down under section 524 of the Fair Work Act 2009 (Cth), is not entitled to access paid personal leave or compassionate leave under sections 96 and 105 of the Fair Work Act 2009 (Cth) (at [35]-[36] and [42]-[45]). (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656)
• The Federal Court of Australia (Rangiah J) has observed that a “formal warning” (at [69]), “distress falling short of a recognisable psychiatric illness… if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state” (at [71]), and the “taking of disciplinary proceedings” could all amount to “injuring [an] employee in his or her employment”, for the purposes of section 342(1)(b) of the Fair Work Act 2009 (Cth) ([58]-[78]). (Lamont v University of Queensland (No 2) [2020] FCA 720)
• The Federal Court of Australia (Katzmann J) has granted an injunction restraining the Fair Work Commission from arbitrating a dispute, on the basis that, among other things, there existed a prima facie case that certain steps in the dispute resolution process contained in the parties’ enterprise agreement had not been followed (at [38]-[43]), and that the interests of justice favoured the dispute being dealt with by a Court rather than the Commission (at [83]-[99]). (Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2020] FCA 682)
• The District Court of New South Wales (Smith SC DCJ) has held that a disability care provider had repudiated its contract of employment with a disability support worker, when it unilaterally altered the location of the employee’s place of work (at [40]-[43]). Further, the Court rejected the disability care provider’s submission that the Court’s award of damages should be limited to the disability support worker’s notice period (being, five weeks) (at [59]-[64]). (Smith v LWB Disability Services South Limited t/as Life Without Barriers [2020] NSWDC 141)
• The Federal Circuit Court of Australia (Judge Riley) has held that declarations, compensation orders and penalty orders could be made against a sole director of a building company, whose building company had gone into liquidation, based on the sole director’s accessorial liability for his building company’s contraventions of the Fair Work Act 2009 (Cth) (at [9] and [75]). (Australian Building and Construction Commissioner v SWAT Building Systems Pty Ltd (In Liq) & Anor [2020] FCCA 1360)
• The Federal Circuit Court of Australia (Judge Humphreys) has held that the closure of laundry and linen services was not a “major change” in the production, program, organisation, structure or technology, of an business, and, accordingly, did not enliven consultation obligations contained in an enterprise agreement (at [18]-[32]). (Health Services Union v Healthscope Operations Pty Ltd [2020] FCCA 1045)
• The Full Bench of the Fair Work Commission has held that a Commissioner had erred in declining to order that a saw mill operator, who had been unfairly dismissed, be reinstated to his former employment, finding the Commissioner had failed to take into account “materially relevant considerations” and focused on “the issue of mutual trust and confidence to the exclusion of a number of matters which plainly favoured [the employee’s] case” (at [73]-[78]). In so doing, the Full Bench also usefully summarised the role that a loss of mutual trust and confidence should play in determining the appropriateness of granting, or declining to grant, an order for reinstatement under section 391 of the Fair Work Act 2009 (Cth) (at [49]-[54]). (Jeremy Lee v Superior Wood Pty Ltd [2020] FWCFB 1301)
• The Fair Work Commission (Deputy President Lake) has usefully summarised the test to applied when determining if a “stand down” direction is lawful under section 524(1)(c) of the Fair Work Act 2009 (Cth) (at [7]), as well as helpfully distilling the legal principles to be applied to the statutory concepts of “a stoppage of work” (at [8]-16]) and “useful employment” (at [17]-[22]). (Michael Marson v Coral Princess Cruises (N.Q.) Pty Ltd T/A Coral Expeditions [2020] FWC 2721)
• The Fair Work Commission (Deputy President Anderson) has helpfully observed that an employer “cannot abrogate responsibility” from not fairly dismissing an employee, notwithstanding that its discretion to dismiss an employee may be “constrained by the conduct or decision of third parties” (at [208]). (D. A. v Baptist Care SA [2020] FWC 2773)
• The Federal Court of Australia (Anderson J) has held that a notice to produce records, issued by the Fair Work Ombudsman under section 712 of the Fair Work Act 2009 (Cth), was wholly invalid (at [66]-[68]), on the basis that the notice had not sufficiently particularised the contraventions alleged, being the purpose for which the notice was issued (at [35]-[61]). (Fair Work Ombudsman v United Petroleum Pty Ltd [2020] FCA 590)
• The Fair Work Commission has handed down three costs decisions, in respect of three separate and unrelated unfair dismissal proceedings, providing guidance on the circumstances that would justify the Commission making a costs order against an employee (Kai Zhu v Keco City Development Group (Australia) Pty Ltd [2020] FWC 913 at [37]-[53]; Annette McNeill v Toyota Motor Corporation Limited [2020] FWC 2342 at [31]-[41]; Alison McCaffery v Warren Smith & Partners Pty Ltd [2020] FWC 2491 at [42]-[73])
• The Federal Circuit Court of Australia (Judge Kendall) has declined to grant leave to a legal practitioner to represent a respondent to a small claims proceeding (at [31]), and, in so doing, usefully summarised the factors relevant to the Court’s discretion to grant such leave pursuant to section 548(5) of the Fair Work Act 2009 (Cth) (at [21]). (D’Sylva v Ellenbrook Family Medical Centre Pty Ltd and Bibok v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171)
• The Fair Work Commission (Commissioner Hunt) has held that an employee’s refusal to take annual leave, in response to a request made by her employer pursuant to a JobKeeper enabling direction, was “unreasonable”, for the purposes of under section 789GJ of the Fair Work Act 2009 (Cth) (at [42]-[64]). (Leonie McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480)
• The Supreme Court of New South Wales (Hammerschlag J) has invoked the Court’s inherent supervisory jurisdiction over its lawyers (at [28]-[34]) and elected to withhold its assistance in assisting a a firm of solicitor from recovering fees from their former client (at [75]-[79]), finding that the firm had performed work, whilst in a position of conflict, without obtaining the informed consent of their client (at [35]-[45] and [80]-[85]). (John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd — Supervisory Jurisdiction [2020] NSWSC 573)
• The Supreme Court of New South Wales (Ball J) has declined to grant a specific performance order against a party to a deed of settlement, which had failed to make monetary payments under the deed of settlement, instead ordering a judgment for the deed sum owed against that party (at [16]-[26]). (Hu v Blue Whale Entertainment Pty Ltd [2020] NSWSC 562)