Recent cases in labour law — September 2020

Welcome to recent cases in labour law — September 2020:

• The Federal Court of Australia (Collier J) has held that several individual respondents to civil penalty proceedings do not need to raise a “positive defence” in their defence pleadings, affidavits, and submissions, and would be entitled to raise positive defences not previously pleaded subsequent to the close of the applicant’s case, on the basis that the individual respondents had claimed privilege against self-exposure to penalty (at [1]-[15] and [24]). In so doing, the Court considered, in detail, the case law regarding the privilege against self-exposure to penalty (at [16]-[23] and [25]FF). (Australian Building and Construction Commissioner v O’Halloran [2020] FCA 1291)
• The Supreme Court of New South Wales (Cavanagh J) has usefully summarised the principles applicable to determining if a contract of employment has been varied, or discharged and replaced by a new contract, in circumstances where an employee’s roles and duties had changed significantly (at [111]-[135]); the principles applicable to determining the length of a notice period required under a implied term of “reasonable notice period notice” (at [195]-[209]); and the principles applicable to the repudiation of a contract of employment and the recovery of “loss of opportunity” damages (at [370]-[398]). (Roderick v Washington H Soul Pattinson & Company Limited (No 2) [2020] NSWSC 1224)
• The Full Court of the Federal Court of Australia (Rares, Collier and Charlesworth JJ) has held that the Fair Work Commission has the power to determine, and must determine, if a dismissal has occurred, and when that dismissal occurred, when dealing with a so-called “dismissal dispute” under section 365 of the Fair Work Act 2009 (Cth) (at [67]). In so doing, the Full Court also observed that, should the Commission err in determining the question of if, or when, a dismissal has occurred, it would be open to a party seeking relief against the Commission to seek writs of certiorari or mandamus against the Commission to remedy that jurisdictional error (at [79]). (Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152)
• The Supreme Court of New South Wales (Sackar J) has usefully summarised legal principles governing the determination of the existence of informal contracts, being contracts that are partly-oral and partly written ([39]-[46]), and the legal principles governing whether a contract has been abandoned or repudiated as a question of law (at [47]-[52]). (Belflora Pty Ltd v Vinflora Pty Ltd and Anor [2020] NSWSC 1229)
• The Full Bench of the Fair Work Commission has held that the power to reduce an amount of redundancy pay owed to an employee that is conferred upon the Commission under section 120 of the Fair Work Act 2009 (Cth) does not apply to an amount of redundancy pay an employee is entitled to receive should that entitlement arise under a provision other than section 119 of the Fair Work Act 2009 (Cth), such as, in the instant case, a provision of a modern Award (at [25]-[26]). (Cameron Fraser; Construction, Forestry, Maritime, Mining and Energy Union v JFM Civil Contracting Pty Ltd [2020] FWCFB 4866)
• The New South Wales Court of Appeal (Bell P; McFarlan JA agreeing; Wright J, dissenting) has dismissed a summons seeking judicial review of a decision of the Full Bench of the Industrial Relations Commission of New South Wales, holding that the Full Bench had not erred in its consideration and construction of section 181F(2) of the Police Act 1990 (NSW), which relevantly provides that “at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust”; in so doing, the Court usefully discussed the concepts of, and distinction between, a “legal burden” and “evidential (or tactical) burden (or onus)” (at [61], [62], [68]-[70] (Bell P); [96]-[98] (McFarlan JA); and [200] (Wright J)). (Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236)
• The Fair Work Commission (Deputy President Booth) has declined to create a “charter of rights”, which would have had the effect of, among other things, causing backpay to be made to employees who had been stood down, on the basis that to do so would be an impermissible exercise of judicial power (at [128]-[131]). Rather, in dealing with the dispute under section 526 of the Fair Work Act 2009 (Cth), the Commission recommended that an order be made that “[the affected employees] should be compensated by receiving a payment equivalent to 50% of the pay that was deducted from them”, observing that “[such] remedy does not constitute an exercise of judicial power” (at [142]-[143]). (Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Limited [2020] FWC 4623)
• The Federal Court of Australia (Snaden J) has declined to summarily dismiss, and further declined to strike out, a claim based on the tort of breach of statutory duty; in so doing, the Court usefully summarised the elements of the tort (at [15]-[20]) with respect to its putative and potential application the Public Service Act 1999 (Cth) and the Superannuation Act 1990 (Cth) (at [21]-[42]). (Srikantha v Commonwealth of Australia (No 2) [2020] FCA 1347)
• The Fair Work Commission (Commissioner Platt) has held that an “implied undertaking”, analogous to that of the so-called “Harman undertaking”, applied to documents disclosed to the Commission (at [8]-[12]) and that, where “special circumstances” exist, a party could be released from their implied undertaking (at [13]-[19]). (Brian Klippert v Veolia Environmental Services (Australia) Pty Ltd [2020] FWC 4669)
• The Full Bench of the Fair Work Commission has held that it has no jurisdiction to deal with a dispute pursuant to a disputes procedure in an Enterprise Agreement that had ceased to operate (at [18]), observing, among other things, that claims for a breach of the superseded and inoperative Enterprise Agreement could still be dealt with by a Court, by way of the relevant statutory provisions of the Fair Work Act 2009 (Cth) (at [25]). (Simplot Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2020] FWCFB 5054)
• The Industrial Relations Commission of New South Wales (Commissioner Sloan) has dismissed a notice of motion seeking an interim order that would require a particular employee’s role be filled by a particular person, should the role be vacant, for duration of the hearing and determination of the parties’ substantive proceeding (at [1] and [16]), on the basis that the Commission lacked the power to make the interim order sought by the applicant union (at [5]-[15]). (Fire Brigade Employees’ Union of New South Wales (on behalf of Rampling) v Industrial Relations Secretary (Fire & Rescue NSW) (No 2) [2020] NSWIRComm 1060)
• The Federal Circuit Court of Australia (Judge Altobelli) has found that a DJ had been engaged as a casual employee rather than an independent contractor (at [12]-[25]), but held “not without hesitation and regret” that DJs were not covered by the Live Performance Award 2010 (at [35]-[46]). (Hazell v Sewell [2020] FCCA 2446)
• The New South Wales Court of Appeal (McCallum JA; McFarlan JA and Leeming JA agreeing) has held that a litigant’s previous history of vexatious litigation can be relevant to determining whether or not proceedings commenced by that litigant were vexatious and, accordingly, susceptible to being dismissed as an abuse of process (at [49]-[53]). (Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232)