Recent cases in labour law — November 2020

Welcome to recent cases in labour law — November 2020:

• The Full Court of the Federal Court of Australia (Bromberg J; Mortimer J agreeing; Anastassiou J dissenting) has observed, in obiter, that there is no requirement to identify a right or an entitlement (or the source of such a right or entitlement) for a complaint or inquiry to be a “complaint or inquiry made in relation to [an employee’s] employment” for the purposes of section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth); in so doing, the majority of the Court reasoned that there was “no textual or contextual basis” to construe section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) as requiring the identification of a subject right or entitlement, let alone identifying a source for such right or entitlement ([64] (Bromberg J); [209] (Mortimer J); [214] (Anastassiou J, dissenting)). (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204)
• The Full Court of the Federal Court of Australia (Allsop CJ; Flick J; White J dissenting) has held that the statutory expression, “[a] person engages in industrial activity if the person… does, or does not… comply with a lawful request made by, or requirement of, an industrial association”, which appears in section 347(b)(iv) of the Fair Work Act 2009 (Cth), requires that any such request must involve some condition of participation in the activities of the industrial association and does not extend to the making of any request or requirement by an industrial association (at [27]-[29] (Allsop CJ); [54], [55] and [73] (Flick J)). In so doing, the Court considered, in detail, the nature and the task of statutory construction (at [3]-[5] (Allsop CJ)) and the judicial hesitancy towards, and features of, “reading into” or “reading down” of a statutory provision (at [61]-[66] (Flick J)). Further, the Court also observed that the accepted construction of a statutory provision could be departed from, in circumstances where “detailed competing arguments” were not advanced before previous iterations of the Court (at [58] and [72] (Flick J)). (Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192)
• The Full Court of the Federal Court of Australia (Rares and Colvin JJ; Bromberg J dissenting) has held that an employee who is stood down from their employment pursuant to section 524(1) of the Fair Work Act 2009 (Cth) is not entitled to access personal/carer’s leave (under section 96 of the Fair Work Act 2009 (Cth)) or compassionate leave (under section 106 of the Fair Work Act 2009 (Cth), on the basis that the taking of such leave would not constitute a “period when the employee is otherwise authorised to be absent from his or her employment” within the meaning of section 525(b) of the Fair Work Act 2009 (Cth) (at [28], [82] and [86]-[87] (Rares and Colvin JJ)). In so doing, the Court also reviewed the historical meaning of the industrial concept of “stand down”, but observed that the earlier authorities provided limited assistance to the proper construction of section 525 of the Fair Work Act 2009 (Cth) (at [46]-[61] (Rares and Colvin JJ)). (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205)
• The Full Court of the Federal Court of Australia (Logan J; Collier J agreeing; Griffiths J dissenting) has held that procedural fairness had not been denied to an employer, in circumstances where a trial judge allowed an employee to pursue a case based on section 343 of the Fair Work Act 2009 (Cth) (which relevantly deals with “coercion” with respect to a workplace right), rather than the employee’s pleaded case based on section 348 of he Fair Work Act 2009 (Cth) (which relevantly deals with “coercion” with respect to industrial activity) (at [1]-[2] (Collier J); [17]-[18] and [131] (Logan J); and [155] Griffiths J dissenting). In so doing, the Court considered the power and practice of a Court to “amend for variance as between the evidence in a civil penalty proceeding and the contravention pleaded so as to allege a different contravention revealed by that evidence” (at [49] (Logan J)), by detailed reference to the history of such power and practice in civil penalty proceedings (at [45]-[67]), as well as the Court’s adjudicative role within an adversarial system (at [71]-[79]). (Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCAFC 208)
• The New South Wales Court of Appeal (Basten JA; McFarlan JA agreeing; Leeming JA agreeing) has held that the acquittal of a corporate defendant for alleged breaches of the Work Health and Safety Act 2011 (NSW) was incapable of being reviewed within the supervisory jurisdiction of the Supreme Court of New South Wales, as such a power to review would run “counter to the general principle of law that a person who is prosecuted for a breach of the law, if acquitted, “is not to be a second time vexed”” (at [43]). In so doing, the Court considered the principle against double jeopardy and its relevance to the construction of statutory appeal rights and to the understanding of the limits of the Court’s supervisory jurisdiction (at [15]-31]). (SafeWork NSW v BOC Limited [2020] NSWCA 306)
• The Full Court of the Federal Court of Australia (Allsop CJ; Middleton J agreeing; White J agreeing) has allowed an appeal against an interlocutory judgment of the Federal Court of Australia, setting aside orders that a litigation funder provide security for the costs to respondents in two group proceedings (at [1], [2], [87] (Allsop CJ); [89] (Middleton J); [93] (White J)). In so doing, the Court observed that, if the litigation funder refused or for some failed to put up the respondents’ security for costs, the usual consequence would be to stay or dismiss the applicants’ proceeding, which would result in an outcome that “could not possibly be just” (at [21], [89] and [93]); discussed the Court’s power (at [75]-[86] (Allsop CJ); [89] (Middleton J); [93] (White J)) and discretion (at [62]-[74] (Allsop CJ); [89] (Middleton J); [93] (White J)) to award costs against a non-party to litigation, such as a litigation funder; and considered the application to the proceedings of section 570 of the Fair Work Act 2009 (Cth), which relevantly limits the circumstances in which costs could be ordered to be paid (at [66] (Allsop CJ); at [89] (Middleton J agreeing); [126]-[133] (White J)). (Augusta Ventures Limited v Mt Arthur Coal Pty Limited [2020] FCAFC 194)
• The Full Court of the Federal Court of Australia (Rares and Logan JJ; Wigney J agreeing) has held that, where an enterprise agreement does not contain a consultation term that complies with sections 205(1) and 205(1A) of the Fair Work Act 2009 (Cth), the model consultation term contemplated by section 205(3) of the Fair Work Act 2009 (Cth) is deemed to be a term of the enterprise agreement, to the exclusion of any pre-existing defective, deficient, or non-compliant consultation term, by force of section 205(2) of the Fair Work Act 2009 (Cth) (at [80] and [82]). In reviewing the consultation term contained in the subject enterprise agreement, the Court found that the impugned consultation term failed to comply with sections 205(1) and 205(1A) of the Fair Work Act 2009 (Cth) (at [47]-[66] (Rares and Logan JJ)) and issued declarations to the effect that the model consultation term was a term of the subject enterprise agreement and that such term applied to the exclusion of the non-compliant consultation term contained in such enterprise agreement (at [67]-[79] and [81] (Rares and Logan JJ)). (Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206)
• The Federal Court of Australia (Rangiah J) has held that a group of construction workers had not engaged in “industrial action” within the meaning of section 7(1)(c)(ii) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), in circumstances where those workers alleged they were entitled to not perform work pursuant to clause 23 of the Building and Construction General On-site Award, which relevantly provided that “[w]hen inclement weather conditions exist an affected employee is not required to commence or continue to work where it is unreasonable or unsafe to do so” (at [1], [9], [13], [26], [124] and [126]). In so doing, the Court observed that the relevant statutory provisions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) were not relevantly distinguishable from similar provisions contained in the Fair Work Act 2009 (Cth) (at [113]), and usefully summarised the relevant case law governing the meaning of the words “failure [to perform work]” and “refusal [to perform work]”, (at [105]-[126]) and “organise [industrial action]” (at [128]-[166]), as regards the statutory context governing the taking of industrial action. (Australian Building and Construction Commissioner v Ingham [2020] FCA 1632)
• The Federal Court of Australia (Kerr J) has found that a law firm partnership was liable for tortious deceit in respect of its dealings with a fixed profit share partner (at [1], [57], and [216]-[217]) and, in so doing, the Court usefully set out the elements of the tort of deceit (at [59]-[60]). The Court also considered the heads of damages available in claims based on the tort of deceit, holding that loss of opportunity damages were conceptually available for tortious deceit, but not available in the instant case (at [253], [254] and [319]); that aggravated damages were available for tortious deceit (at [347]-[356]), even though damages for emotional hurt and distress are not within the remit of the tort of deceit (at [326]); and that exemplary damages were available for tortious deceit (at [357]-[363]). (Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641)
• The Federal Court of Australia (Murphy J) has held that a registered industrial association was entitled to bring proceedings, in which the association sought declarations that terms of an enterprise agreement had been contravened, in the Federal Court of Australia, notwithstanding that similar claims had been the subject of an arbitration conducted by the Fair Work Commission (at [1], [2], [118]). In so doing, the Court considered the meaning of the word “matter”, as it appears in section 562 of the Fair Work Act 2009 (Cth), and the legal consequences of arbitration under the Fair Work Act 2009 (Cth) (at [33]-[43]), observing that the subsisting controversy between the parties, as regards the seeking of orders for declarations, compensation, and penalties, was the appropriate “matter” before the Court for the purposes of section 562 of the Fair Work Act 2009 (Cth) (as distinct from the arbitral determination of issues by the Fair Work Commission) (at [63]-[118]). (Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665)
• The Federal Court of Australia (Colvin J) has dismissed an application for a declaration that the Fair Work Commission lacked jurisdiction to determine a dispute under an enterprise agreement, rejecting a submission that the Commission’s jurisdiction had not been enlivened because the enterprise agreement’s dispute resolution process had not been properly followed (at [1]-[9] and [16]). In so doing, the Court observed that it was of no issue that compliance with the steps required by the dispute resolution process had occurred prior to the enactment of the enterprise agreement (at [103]-[110]), and considered generally the scope of the arbitral jurisdiction conferred by the enterprise agreement and regulated by the Fair Work Act 2009 (Cth) (at [130]-[147]). (Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694)
• The Federal Court of Australia (Logan J) has helpfully affirmed that, where a contraventions of the Fair Work Act 2009 (Cth) have occurred over a period of time during which the maximum penalty for such contraventions has increased, the level of penalty to be appropriately imposed should be measured against the yardstick provided by the maximum penalty applicable at the end of that period rather than the maximum penalty at the commencement of that period (at [47]). (Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd (No 2) [2020] FCA 1644)
• The Federal Court of Australia (Thawley J) has held that a clause contained in an enterprise agreement, which “committed” the parties to “the protection and promotion of intellectual freedom”, was not capable of being enforced because it failed create an enforceable obligation, but that a clause, which provided that the parties “will uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards” was enforceable according to its terms, but could nevertheless be subject to fetters and qualifications contained in clauses that elsewhere appeared in the enterprise agreement (at [126]-[141]). (National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709)
• The Full Court of the Federal Court of Australia (Reeves and O’Callaghan JJ; Charlesworth J agreeing) has dismissed an appeal against a judgment of the Federal Court, holding that a body corporate, such as a trade union, could be accessorily liable for a contravention of the Fair Work Act 2009 (Cth), committed by an “official” of the body corporate, such as an officer, employee, or agent , solely by means of statutory attribution prescribed by section 793 of the Fair Work Act 2009 (Cth) (at [2]-[4] and [28]-[53] (Reeves and O’Callaghan JJ); [55] (Charlesworth J)). (Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203)
• The New South Wales Court of Appeal (Bell P; Bathurst CJ and Payne JA agreeing) has usefully summarised the authorities relevant to whether or not “silence” will constitute “conduct” that is misleading or deceptive, for the purposes of section 18 of the Australian Consumer Law (at [107]-[121] (Bell P); [1] (Bathurst CJ); [161] (Payne JA)). (Wormald v Maradaca Pty Ltd [2020] NSWCA 289)
• The Federal Court of Australia (Steward J) has helpfully summarised the distinction between a “complaint”, being a statement of a “particular grievance or finding of fault” (at [247]), and an “inquiry”, being a “an investigation or an examination made for the purposes of acquiring knowledge or information” (at [248]), for the purposes of section 340(1)(c)(ii) of the Fair Work Act 2009 (Cth). Further, and with respect to complaints or inquiries that could be made in relation to a Chief Executive Officer’s employment, the Court observed that such complaint or inquiry “must, as a matter of substance, be about the C.E.O.’s employment, as distinct from the person’s course of conduct as the C.E.O. of a company” (at [261]). (Flageul v WeDrive Pty Ltd [2020] FCA 1666)
• The Federal Court of Australia (Snaden J) has granted leave to appeal an interlocutory judgment of the Federal Circuit Court, in which the primary judge relevantly held that a swimming coach was not covered by the Fitness Industry Award 2010 (at [1]-[3] and [25]). In so doing, the Court considered, in obiter, whether or not the judgment of the primary judge was properly an “interlocutory” judgment or a “final” judgment (at [4]-[9]). (King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1639)
• The Federal Circuit Court of Australia (Judge Kendall) has helpfully affirmed that redundancy pay obligations under an industry-specific redundancy scheme contained in a modern Award is expressly unfettered by the redundancy pay obligation exemptions contained within the Fair Work Act 2009 (Cth) (at [28]-[32]). (Bodycoat v It Blows Air Con Pty Ltd Trading As IBAC Plumbing [2020] FCCA 3033)
• The Full Bench of the Fair Work Commission (Vice President Hatcher) has helpfully affirmed that the determination of whether or not the employment of a casual employee was on a “regular and systematic basis” is to be based on the casual employee’s “engagement”, rather than any “regular, predictable or assured” pattern of hours worked pursuant to such engagement (at [14]-[22]). (Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019)
• The New South Wales Court of Appeal (Leeming JA; Meagher JA agreeing; Payne JA agreeing) has helpfully observed that the law of precedent, and, in particular, the rule set down in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 that seriously considered dicta of a majority of the High Court of Australia be followed, does not apply to dissenting judgments of the High Court of Australia (at [98]-[105] (Leeming JA); [1] (Meagher JA); [171] (Payne JA)). (Chief Commissioner of State Revenue v Benidorm Pty Ltd [2020] NSWCA 285)