Recent cases in labour law — May 2021

Welcome to recent cases in labour law — May 2021:

• The New South Wales Court of Criminal Appeal (Gleeson JA; Garling J; Cavanagh J) has dismissed an appeal from the District Court of New South Wales, in relation to a work health and safety conviction of a roofing company (at [9] and [123]). In so doing, the Court observed that the statutory attribution of liability created by section 244 of the Work Health and Safety Act 2011 (NSW) is distinct to, and broader than, the common law concept of vicarious liability (at [79]-[85]) and also observed that section 244 of the Work Health and Safety Act 2011 (NSW) does not import considerations of foreseeability, or associated issues of an employee’s deliberate disobedience, in relation to the issue of statutorily attributed liability (at [86]-[90]). (Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95)
• The Full Court of the Federal Court of Australia (Logan, Katzmann and Snaden JJ) has held that the costs shield established by section 570 of the Fair Work Act 2009 (Cth) is capable of applying to a cross-claim proceeding, which did not seek relief or plead a cause of action under the Fair Work Act 2009 (Cth), on the basis that such proceeding was sufficiently connected or related to the principal proceeding, which raised matters under the Fair Work Act 2009 (Cth) (at [95], [103], [105]-[116] and [121]). In so doing, the Court observed that the separate sets of proceedings shared a common substratum of facts (at [118]) and that matters raised in the cross-claim proceeding and defence to the principal proceeding supported such a connection or relationship between the proceedings (at [117]-[120]). (Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67)
• The Full Court of the Federal Court of Australia (Bromberg, Katzmann and O’Callaghan JJ) has held that the purpose of an award of interest under section 547 of the Fair Work Act 2009 (Cth) “is to compensate a plaintiff for the loss or detriment he or she has suffered by being kept out of his or her money” and that delay, by itself, is insufficient to foreclose an award of interest, drawing from authorities that considered analogous statutory provisions (at [60]-[64]). (Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2021] FCAFC 83)
• The Full Court of the Federal Court of Australia (McKerracher, Kerr, and Charlesworth JJ) has held that the Federal Court of Australia has an inherent power to stay proceedings in cases where a party refuses a reasonable request to attend an independent medical examination (at [38]-[44]). In so doing, the Court also observed that an order to permanently stay proceedings was an interlocutory order and thus required a grant of leave to appeal from that order (at [18]). Further, the Court also observed that the trial judge had not erred in admitting extracts from a medico-legal report on the basis that such extracts were not adduced for the purposes of proving the truth of the opinion, but to establish a basis for the subject to undergo a further independent medical examination such as to provide a further opinion on the issues raised in the medico-legal report (at [83]-[84]) (Hastwell v Kott Gunning [2021] FCAFC 70)
• The Federal Circuit Court of Australia (Judge Manousaridis) has held that the Court, by operation of sections 8 and 15(a) of the Federal Circuit Court of Australia Act 1999 (Cth), has the power to order an employer to specifically perform a “salary sacrifice” clause contained within the parties’ contract of employment, such that the employer be made to pay monies for unpaid superannuation contributions to a superannuation fund nominated by an employee (at [8], [38]-[40]). (Wood v Semantic Software Asia Pacific Pty Ltd [2021] FCCA 1006)
• The Federal Court of Australia (Rares J) has held that the Court‘s power to make a non-indemnification order under section 81(1)(a) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) is not fettered by any agreement between the parties before it, including an express agreement that no such order would be sought to be made, contrary to existing first instance authority (at [18]-[29]). (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525)
• The Federal Circuit Court of Australia (Judge Reithmuller) has held that contemporaneous records kept by an employee should be accepted as evidence of the employee’s hours worked and pay received, in circumstances where the employer retained no records of the employee’s working hours or the amounts it had paid to the employee in cash (at [36]-[42]). Further, the Court held that the contract law doctrine of illegality did not render the employee’s contract of employment unenforceable, in circumstances where the employee’s working rights were subject to a student visa and where the employee had worked in breach of a condition of his student visa (at [45]-[51]). (Lal v Biber [2021] FCCA 959)
• The Fair Work Commission (Deputy President Binet) has ordered, pursuant to section 526 of the Fair Work Act 2009 (Cth), that an employer pay to an employee it had stood down, absent authorisation under section 524(1) of the Fair Work Act 2009 (Cth), an amount equivalent to 16 days’ wages in respect of a stand down period that lasted 17 days (at [11]-[21]). (Christopher Carter v Auto Parts Group [2021] FWC 2364)
• The New South Wales District Court (Strathdee DCJ) has held that evidence of changes to an employer’s systems of work was “relevant” for the purposes of section 55 of the Evidence Act 1995 (NSW) in a work health and safety prosecution against an abbatoir and, accordingly, ordered that such evidence was admissible in the prosecution (at [7] and [26]). In so doing, the Court usefully summarised the authorities relevant to whether a particular safety measure could be assessed to be “reasonably practicable” at a time anterior to a safety incident (at [9]-[22]). The Court also held that such evidence should not be excluded due to the “danger of unfair prejudice to the [employer]” for the purposes of section 137 of the Evidence Act 1995 (Cth), observing that any such prejudice could be cured by the giving of an appropriate direction as to the weight to be placed on such evidence (at [23]-[25]). (SafeWork NSW v Southern Meats Pty Ltd [2021] NSWDC 192)
• The Fair Work Commission (Commissioner Cambridge) has held that a food delivery rider was an employee, rather not an independent contractor, of a gig economy company and, accordingly, eligible to be protected from unfair dismissal under section 382 of the Fair Work Act 2009 (Cth) (at [88]-[96] and [137]-[139]). In so doing, the Commission observed that the “capacity” of control, in contradistinction to the “apparent” control, exercised by the company over the rider (at [110]-[114]); the fact that work performed by the rider for competitors was akin to modern casual and part-time employment relationships (at [115]-[118]); the lack of bargaining power held by the rider in entering so-called “supply/supplier agreements” with the company (at [119]-[123]); the company’s encouragement that the rider wear branded clothing and use branded equipment (at [129]); the fact that food deliver riding was not a distinct or established profession, trade or calling (at [133]); and the absence of evidence that the rider was conducting an entrepreneurial business accruing his own goodwill (at [134]), all weighed in favour of the rider being an employee, rather than an independent contractor, of the company. (Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818)
• The Full Bench of the Fair Work Commission (Vice President Hatcher, Deputy President Dean, Commissioner Platt) has held that legal professional privilege applies to documents sought to be produced, pursuant to section 590 of the Fair Work Act 2009 (Cth), in proceedings before the Fair Work Commission as a rule of substantive law and common law immunity (at [61]). In so doing, the Commission usefully summarised the principles relevant to determining claims of legal professional privilege when such production is sought (at [63]). (Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons [2021] FWCFB 2623)
• The High Court of Australia (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) has usefully summarised the elements to be satisfied for a claim for unlawful means conspiracy (at [25]) and, further, usefully summarised the principles governing the assessment of a diminution in value of a plaintiff’s rights to tangible or intangible property in such claims (at [45]-[51]). (Talacko v Talacko [2021] HCA 15)
• The Full Court of the Federal Court of Australia (Rares J; Flick J; Kerr J) has held that, on a proper construction of clauses 3 and 4.1 of the Live Performance Award 2010, a DJ was covered by the Award and, accordingly, entitled to the benefits conferred under the Award (at [13]-[26] (Rares J); [41]-[45] (Flick J); [48] (Kerr J)). (Hazell v Sewell [2021] FCAFC 76)
• The Supreme Court of New South Wales (Cavanagh J) has held that a client of a law firm was entitled to, among other things, copies of file note documents, including file notes of meetings between the law firm and third parties, prepared by the law firm under the parties’ costs agreement (at [54], [59] and [65]) and, accordingly, ordered the law firm to give to the client such documents (at [90]). In so doing, the Court usefully summarised the principles relevant to the proper ownership of documents prepared by a law firm for a client (at [28]-[37]). (Alexiou v Alexandra White and ors t/as HWL Ebsworth Lawyers [2021] NSWSC 485)
• The Federal Court of Australia (White J) has held that, by operation of sections 2B and 6 of the Australian Consumer Law, the Court lacked jurisdiction to hear and determine claims based on contraventions of the Australian Consumer Law against Sydney Trains, and one of its employees, on the basis that the Australian Consumer Law did not apply to Sydney Trains, or its employees, on the basis that Sydney Trains is an agency of the State of New South Wales (at [37]-[46]). Notwithstanding, the Court observed that it had jurisdiction to hear and determine non-federal claims that had been pleaded alongside federal claims, so long as the federal claims were not “colourable” (at [47]-[50]), holding ultimately that the subject claims were not colourable and accordingly that the Court had jurisdiction to hear and determine the matters raised in the proceeding (at [51]-[55]). (McCully v Sydney Trains [2021] FCA 562)
• The Queensland Supreme Court (Henry J) has usefully summarised the legal principles relevant to whether legal professional privilege is or is not waived when legal advice is disclosed in “without prejudice” correspondence for forensic or commercial purposes (at [18]-[28]). In the instant case, the Court observed that there was no sufficient inconsistency between the “bare unpersuasive posturing” of referencing such legal advice in “without prejudice” correspondence with the maintenance of of the confidentiality that legal professional privilege serves to protect (at [36]-[37]). (Habermann v Cook Shire Council [2021] QSC 101)
• The New South Wales Civil and Administrative Tribunal (Cole DCJ, Deputy President; M Schyvens, Deputy President; E Hayes, General Member) has found a solicitor guilty of professional misconduct (at [87]), and ordered that he be reprimanded and be required to undertake an appropriate course in ethics (at [91]), on the basis that the solicitor had sent threatening and intimidating letters to an unrepresented litigant, who was a refugee and in Australia on a bridging visa (at [61]-[72] and [81]), in contravention of rule 34 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (at [30]-[34]). (Council of the Law Society of New South Wales v Hammond [2021] NSWCATOD 52)
• The Appeal Panel of the New South Wales Civil and Administrative Tribunal (R C Titterton OAM, Senior Member; M Gracie, Senior Member) has held that, in determining if a dentist had breached sections 60 and 61 of the Australian Consumer Law, which respectively create statutory guarantees to render services with due care and skill and to supply products that are fit for purpose, regard must be had to sections 5B and 5C of the Civil Liability Act 2001 (NSW), which relevantly deal with duties of care generally (at [35]-[47]). Further, the Appeal Panel usefully summarised the principles relevant to the admissibility of, and weight to be given to, expert evidence before the Tribunal (at [103]-[105]). (Wickremeratne v Dr Ina Van der Merwe t/as Balgowlah Family Practice [2021] NSWCATAP 161)