29 November 2018
The Australian Parliament has passed the Modern Slavery Act which will be presented to the Governor General for assent soon.
16 November 2018
“Observation re Matters of Public Importance/Interest
The particular circumstances that were revealed by the evidence in this matter, and the unusual circumstances in which this Decision has arisen from proceedings that were consented to in circumstances where the respondent had entered into voluntary administration, has provided an opportunity for the indulgence of an observation regarding questions of public importance and interest. The determination that the applicant was properly, an employee of Foodora and not a contractor has been made having regard for the conventional and well established approach described as the application of the multifactorial tests. In my view, there may be a need to expand and modify the orthodox contemplation for the determination of the characterisation of contracts of employment vis-à-vis, independent contractor, as the changing nature of work is impacted by new technologies.
As corporate tax rates reduce and become lower than comparable marginal rates of personal income tax, incentive is created for the creation of a contractor relationship rather than one of employment. Corporations logically recognise the many potential benefits in engaging individuals to perform work utilising the machinery of independent contractor arrangements. Individuals may also be attracted to the lower tax regime of the independent contractor arrangement, and/or, as is often the case, the individual may have no option but to accept the engagement arrangement stipulated by the corporation.
As in this case, the corporation (Foodora) stipulated the requirement for individuals to obtain an Australian Business Number and to create, at least the appearance, that the individual operates a business of their own. The corporation then avoids the many responsibilities and obligations that it would normally have as an employer. The responsibility for compliance with many important regulatory obligations including but not limited to taxation, public liability insurance, workers compensation insurance, statutory superannuation, licensing and work health and safety, is transferred from the corporation to the putative contractor.
Contracting and contracting out of work, are legitimate practices which are essential components of business and commercial activity in a modern industrialised economy. However, if the machinery that facilitates contracting out also provides considerable potential for the lowering, avoidance, and/or obfuscation of legal rights, responsibilities, or statutory and regulatory standards, as a matter of public interest, these arrangements should be subject to stringent scrutiny. Further, if as part of any analysis involving the correct characterisation that should be given to a particular relationship, an apparent violation of the law, or statutory or regulatory standards is identified, as a matter of public interest, any characterisation of the relationship which would avoid or minimise the likelihood of such violation should be preferred.”
Klooger v Foodora Australia Pty Ltd (2018) FWC 6836 delivered 16 November 2018 per Cambridge C
10 September 2018
“Good people make mistakes, including bad ones. It does not make them bad people. In cases such as these, the Commission’s responsibility is to concern itself with the alleged conduct and the circumstances as a whole, based on evidence before it.”
Nemcic v Australian Electoral Commission (2018) FWC 5645 delivered 7 September 2018 per Anderson DP
23 August 2018
On 1 August 2018, as part of its four yearly review of the modern awards under the Fair Work Act , the Fair Work Commission inserted a new term into all 122 modern awards providing all Australian employees covered by the modern awards with a statutory entitlement to 5 days’ unpaid family and domestic violence leave that is to say leave if
- they are experiencing family and domestic violence, and
- they need to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that outside their ordinary hours of work.
The model term provides that an employee may take the leave entitlement for reasons which may include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
The new term also requires employers to take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided, is treated confidentially, as far as it is reasonably practicable to do so.
5 July 2018
The Registrar of the Western Australian Industrial Relations Commission has published a new prescribed amount under the Industrial Relations Act 1979 (WA) which is $162,990.00. The prescribed amount is similar in purpose to the high income threshold under the Fair Work Act 2009. The prescribed amount is a cap which applies to the income of employees who are able to pursue claims in the WAIRC for unfair dismissal and denied contractual benefits.
25 June 2018
The Fair Work Commission has this morning announced that for the period between 1 July 2018 and 30 June 2019 the new high income threshold will increase to $145,400 and thus the compensation limit for unfair dismissal will lift to $72,700.
1 June 2018
National Wage Case decision today; this is the end result of the Fair Work Commission’s national wage case delivered today.
“The national minimum wage order will contain:
(a) a national minimum wage of $719.20 per week or $18.93 per hour. (This
constitutes an increase of $24.30 per week to the weekly rate or 64 cents per hour to
the hourly rate);
(b) two special national minimum wages for award/agreement free employees with
disability: for employees with disability whose productivity is not affected, a
minimum wage of $719.20 per week or $18.93 per hour based on a 38-hour week, and
for employees whose productivity is affected, an assessment under the supported wage
system, subject to a minimum payment fixed under the SWSS;
(c) wages provisions for award/agreement free junior employees based on the
percentages for juniors in the Miscellaneous Award 2010 applied to the national
(d) the apprentice wage provisions and the NTWS in the Miscellaneous Award 2010
for award/agreement free employees to whom training arrangements apply,
incorporated by reference, and a provision providing transitional arrangements for first
year award/agreement free adult apprentices engaged before 1 July 2014; and
(e) a casual loading of 25 per cent for award/agreement free employees.”
15 May 2018
“ It never ceases to amaze me that employees often plead a lack of training of self-evident unacceptable conduct, such as bullying or harassment, to justify, in some bizarre way, their behaviour. This is particularly so given the extensive media and community focus on the effects of threatening or harassment behaviour in life generally and the workplace specifically. In my view, an employee does not need training to know that you do not accuse a subordinate of damaging your vehicle, without a skeric of evidence. Further, an employee does not need training to know that you do not scare or threaten a young subordinate by using expressions such as ‘Watch out’ and ‘you don’t know how furious John is’. No employee needs training to know that it is wrong, offensive and inappropriate to Facebook friends to accuse a subordinate of malicious damage, without any evidence and refer to that person as a ‘little fucker’ (knowing that your Facebook friends will know who it is referring to). To then ‘like’ a reply message of the type Mr Macris’s posted exacerbated the applicant’s inappropriate and unacceptable behaviour. I continue to be baffled by employees who use social media to adversely comment on other employees or Management, when they would not dream of saying such things ‘face to face’. To do so, when it is common knowledge a Facebook post can be passed on to others, by anyone who receives it, is just incomprehensible and foolish in the extreme.”
Natoli v Anglican Community Services T/A Anglicare (2018) FWC 2180 delivered 14 May 2018 per Sams DP
21 November 2017
“I am satisfied that Mr Sim’s termination was unjust and unreasonable. Apprentices are not a form of labour that an employer can simply dispose of at will. There was no valid reason for the termination of his employment and he was certainly not afforded procedural fairness.”
Sim v New Leaf Developments  FWC 6021 delivered 16 November 2017 per Harper-Greenwell C
24 October 2017
“The Book of Leviticus tells the story of Aaron presenting a goat (on which the lot fell for the Lord) as a sin offering. 26 It was the original “scapegoat”. To the extent that there is any suggestion that Mr Ramos was responsible for the escape of the Detainee on 13 February 2017, he is a modern day scapegoat. He has been blamed for the wrongdoings, mistakes, or faults of others, especially for reasons of expediency. As the Respondent’s own report found the escape was “well researched, planned and highly coordinated”. Further, “the escape methodology exploited security vulnerabilities in the external facing wall of the Hotham Visits Centre.”
Ramos v Serco Australia Pty Ltd (2017) FWC 5470 delivered 23 October 2017 per Johns C
5 October 2017
In Robinson v State of Queensland  QSC 165, the Supreme Court of Queensland has awarded an executive employee $1,468,991.11 in damages (plus costs) after finding that she had been subjected to “repeated managerial mistreatment” by her boss, the CEO of a health organisation in Queensland. The employer was held to have been liable in negligence for failing in its duty of care to provide a safe system of work.
The Court found that over the period of a year, the CEO engaged in “unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard” towards the employee, which resulted in the employee ceasing work permanently and developing a serious psychiatric injury.
24 September 2017
The WA McGowan government has announced that it has commissioned a review of the State’s industrial relations system. The last review was from memory one which I undertook for the then government about 20 years ago. The terms of reference include a review of the Western Australian Industrial Relations Commission, public sector employment issues, the definition of “employee” (which I assume is intended to contemplate sham contracting protections and protections for some sub-contractors), minimum conditions of employment implications and an equal remuneration objective.
Here is a link
16 August 2017
On 16 August 2017, the Minister for Justice Michael Keenan announced that the Federal Government proposes to introduce legislation to require large businesses to report annually on their actions to address modern slavery. This announcement reinforces Australia’s commitment to having one of the strongest responses to modern slavery in the world.
10 August 2017
The Western Australian labor government has announced plans to introduce a newa Work Health and Safety Bill intended to bring the State’s occupational, health and safety legislation into line with the rest of the States and Territories (other than Victoria).
Minister for Commerce and Industrial Relations, Bill Johnston, says the current WA OHS legislation is 30 years old and out of date. The announcement of the new Bill also comes more than five years after all Australian States and Territories, with the exception of WA and Victoria, adopted uniform OHS laws.
This announcement marks the start of a lengthy consultation period with stakeholders in which the Bill is expected to be introduced to Parliament two years from now.
The Bill will be based on the national Work Health and Safety Act, providing consistency across Australia in OHS legislation.
It will replace the following Acts:
- Occupational Safety and Health Act 1984;
- Mines Safety and Inspection Act 1994; and
- Petroleum and Geothermal Energy Safety Levies Act 2011.
23 July 2017
The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, introduced into the Federal Parliament on 1 March 2017 by the Federal Government, proposes a number of initiatives to put an end to or at least seriously reduce systematic exploitation of vulnerable workers. The main initiatives are to very substantially increase the potential penalties for such misconduct, to expand the accessorial liability provisions of the Fair Work Act to holding companies and franchisors, and to extensively increase the investigative powers of the Fair Work Ombudsman.
5 July 2017
New rights to permanent employment for casual employees
In a major decision by a Full Bench of the Fair Work Commission delivered on 5 July 2017, the Commission after hearing a major test case has said that it is prepared to amend most of Australia’s modern awards to provide casual employees who have worked regular hours for at least 12 months the right to demand that their employment become permanent which employers must agree to unless there are “reasonable grounds” to refuse. The commission has also said it is prepared to grant casual employees a minimum shift of 2 hours.
The commission has also indicated it is prepared to vary awards applying to retail, fast-food and hair and beauty workers to give casual workers access to overtime penalty rates if they work long hours in a single day.
New high income threshold
From 1 July 2017, the high income threshold has increased to $142,000 per annum.
National Wage Case decision today 6 June 2017
We have determined that it is appropriate to increase the NMW (National Minimum Wage) and the factors identified in our decision have led us to award an increase of 3.3 per cent. The national minimum wage will be $694.90 per week, or $18.29 per hour. The hourly rate has been calculated by dividing the weekly rate by 38, on the basis of the 38-hour week for a full-time employee. This constitutes an increase of $22.20 per week to the weekly rate or 59 cents per hour to the hourly rate.
Maximum penalties for Fair Work Act breaches to increase on 1 July 2017.
The Federal government has enacted the Crimes Amendment (Penalty Unit) Bill 2017 which will come into effect on 1 July 2017. The effect of this new law will be to increase the value of a Commonwealth “penalty units” which are provided for by various federal laws including the maximum civil penalties which can be imposed against corporations and individual Australians, for example company directors, for breaches of the Fair Work Act 2009.
The Fair Work Act provides for the imposition of civil penalties for contraventions of the NES, modern awards and enterprise agreements, various workplace rights and general protections and unprotected industrial action.
|Before 1 July 2017||After 1 July 2017|
|Maximum Penalty for a Corporate Entity||$54,000||$63,000|
|Maximum Penalty for an Individual||$10,800||$12,600|
21 April 2017 Registered Organisations Commission set up
On 24 November 2016, the Fair Work (Registered Organisations) Amendment Act 2016 received royal assent. This Act included the creation of the Registered Organisations Commission.
The Registered Organisations Commission will commence on 1 May 2017, and will provide support to the Registered Organisations Commissioner in regulating unions and employer associations. New powers and functions, including the registration of auditors and officer disclosures, will commence on 2 May 2017.
22 March 2017
On 22 March 2017, the Federal Coalition Government introduced the Fair Work Amendment (Corrupting Benefits) Bill 2017 into Parliament. It seeks to implement a number of key recommendations from the 2015 Royal Commission into Trade Union Governance and Corruption particularly to outlaw ‘sweetheart deals’ between unions and employers.
Interesting cases and decisions
“The language of s. 390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.” DP World Sydney Limited (2013) FWCFB 923 at 138
“The law generally deals with substance and not trifles. It would be something of a travesty of justice or otherwise inequitable to make a default order which might include an order for summary judgment under the FCC Rules in respect of a week and a fortnight’s lateness in filing affidavits and submissions in respect of a preliminary issue which is months away from hearing. It would also be inappropriate if what is, in fact, sought is summary judgment on the merits in circumstances where the default relates to the preliminary issue and the Court does not yet have evidence before it in relation to the substantive merits of the case as such, or certainly not such evidence as would be put before the Court in relation to any final hearing.”
Kape v The Golden Mile Loopline Railway Society Inc & Ors (2016) FCCA 2906 delivered 10 November 2016 per Lucev J
“JGL’s reliance on the doctrine of severance is an invitation to the Court to engage in the task of curial disentanglement to salvage a patently unreasonable restraint. Absent severance the second limb is unenforceable as an unreasonable restraint.”
Just Group Limited v Peck (2016) VSC 614 delivered 17 October 2016 per McDonald J
As Gleeson CJ and Kirby J said in Ostrowski v Palmer (2004) 218 CLR 493 at 500 “Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence [Williams, Textbook of Criminal Law, 2nd ed (1983) at 451]. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.”
Griffin Coal appeal rejected
Moments ago, a Full Bench of the Fair Work Commission has unanimously (and resoundingly on legal grounds) rejected an appeal by the AMWU against a decision by the Commission made on 9 June to terminate the applicable enterprise agreement which, according to public assertions by the union and some people in Collie, will result in some workers suffering a $50,000 pa pay cut. The decision re-asserts the impact of what most industrial lawyers believe is a powerful enterprise bargaining tool, in this case a move by the employer to break the impasse of stalled EA negotiations by seeking to cancel the current EA and return to the conditions provided for by the black coal award. It will be a bitter pill for the workers, and Collie itself, which according to press reports is struggling as a town to maintain a decent standard of living in the community. The company will no doubt argue that it is the conditions provided for by tthe EA which have brought the operation to its knees economically.
Increase to high income threshold and fling fees from 1 July 1016
From 1 July 2016 the filing fee for dismissals, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009 will increase to $69.60.
Also effective from 1 July, the high income threshold in unfair dismissal cases will increase to $138,900 and the compensation limit will be $69,450 for dismissals occurring on or after 1 July 2016.
National wage increase 31 May 2016
The Fair Work Commission has this afternoon (31 May 2016) granted award-reliant workers a 2.4% increase (and those employees whose remuneration is formally or informally linked to movements in the national minimum wage), lifting the national minimum wage by $15.80 a week or 41 cents an hour, in this year’s annual national wage review case
‘It was not the legal responsibility of the employer to its employees to provide a happy workplace or one in which their productivity might have been enhanced by temperate and polite behaviour from those in managerial positions.’
Eaton v TriCare (Country) Pty Ltd (2016) QCA 139
It is sometimes thought, in the traditional union movement at least, that to label someone a scab is the worst insult that can be given. At a minimum, it is a call to shame and ostracise that person. It signifies that they have been guilty of unforgivable, and unredeemable, treachery which will blight their reputation forever.
Maritime Union of Australia v Fair Work Ombudsman  FCAFC 102 delivered 11 August 2016 per TRACEY and, BUCHANAN JJ
“That the Blue Norwegian Parrot was dead was obvious. However this didn’t stop the pet shop owner from claiming that it was merely sleeping, or that it was merely stunned nor did it stop the pet shop owner from explaining away the fact that the parrot had been nailed to its perch as merely a means to stop it from escaping……. When one of his arms is cut off he responds with, ‘Tis but a scratch.’ and when he loses his second arm he retorts with ‘It’s just a flesh wound’. Finally when the Black Knight has had both arms and both legs cut off he responds with ‘We’ll call it a draw…….The humour in both of those Monty Python sketches arises from the sheer absurdity of the situation portrayed. The same sense of absurdity is found in the actions of the department.”
Somasundaram v Department of Education & Training, North-Eastern Victoria Region (2016) FWC 4231 June 2016 per Ryan C
“It is normal, so I am informed, to see patterns in clouds or among trees. However, we also see patterns where others do not – especially gamblers. Sometimes we are just overly sensitive to what is happening around us when we allegedly see a pattern.”
Re Gore (2016) FWC 2559 delivered 24 May 2016 per Cloghan C
“Office civilisation could not be feasible without the hard take-offs and landings effected by coffee and alcohol”.
Bista v Glad Group Pty Ltd (2016) FWC 3009 delivered19 May 2016 per Hatcher VP
When is a mobile phone not a mobile phone?
A bus driver who tapped a mobile phone which had no sim card and was being solely used as a music playing device has won an unfair dismissal case on the basis that the dismissal was relevantly unfair even though the Fair Work Commission found that there was a valid reason for dismissal because the device was still strictly speaking a mobile phone for the purposes of the law and the employer’s policies; Perry v Hillsbus Co. Pty Ltd. (2016) FWC 1901 delivered 20 May 2016 per Drake SDP
Gems from the Fair Work Commission
“minor indiscretions and inadvertent slips in professionalism” do not constitute misconduct and “at its highest” could only be characterised as “work performance deficiencies rather than misconduct”
Meyers v 2evolve Pty Ltd (2016) FWC 2921 delivered13 May2016 per Cambridge C
“I’ll fix you up” not accepted by FWC as meaning “I will settle the debt” in Irish
“From an objective perspective, most people would in my view associate the term as either someone indicating that they were was going to repay money or alternatively that they meant it as a threat.”
Hennigan v Xmplar Building Solutions Pty Ltd (2016) FWC 2938 delivered12 May 2016 per Kovacic DP
“Unlike politics where a policy position can be dead, buried and cremated, an employer can only dismiss an employee once.”
Welsby v Artis Group Pty Ltd (2016) FWC 2251 delivered 8 April 2016 per Pratt C
“We do not live in a society where employees are prohibited from discussing their employment status or their treatment at work with others.”
Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium (2016) FWC 1168 delivered 1 March 2016 per Roe C
Employer must take workforce, warts and all
“An employer cannot expect to have a model workforce. A workforce will include people who are ill, are affected by the stresses and strains of life outside work and who may at times be both difficult, unconventional and unusual.”
Cole v PQ Australia Pty Ltd (2016) FWC 1166 delivered 29 February 2016 per Roe C
Bombers fined for workplace breaches during the supplements’ scandal
29 January 2016; The Essendon Football Club has today been fined $200,000 for workplace law breaches by having failed to provide a safe place and system of work (read being a rotten employer) during the supplements’ scandal which has rocked the AFL.
CFMEU mining and energy division stripped of power to conduct own elections
12 January 2016; Construction, Forestry, Mining and Energy Union-Mining and Energy Division and another v Fair Work Commission  FWCFB 197
High Court on general protections motives
Yesterday (12 December 2015) , the High Court has today refused the CFMEU permission to appeal against a finding of a Full Federal Court to the effect that an employer did not contravene the general protections of the Fair Work Act by moving an employee from weekend to weekday shifts (said to be adverse action) because the employee exercised a workplace right, argued by the CFMEU to arise from the employee taking lawful personal and carer’s leave.
The employer contended that the decision to change the employee’s shifts arose due to its view of the “lack of predictability” of his attendance at work and pursuant to a management right to do so under the applicable enterprise agreement.
The case turned on the distinction between a decision by an employer to manage the “economic problems visited upon the employer” by the employee’s attendance record and the fact that the employee was absent under a lawful right to take the leave.
CFMEU v Endeavour Coal Pty Ltd (citation not yet available from High Court’s web site)
High Court ruling on sham contracting
The High Court has today confirmed that the reach of the sham contracting provisions of the Fair Work Act extend to render an employer liable for misrepresentations to the effect that a contract of service between the employer and the employee is in fact a contract for services between the employee and a third party. The Full Federal Court had previously held in the case which was appealed to the High Court that the employer was only liable for breaching the Act where the misrepresentation was by a party to the effect that there was a contract for services between another party and the employees.
Changes to Fair Work Act
Changes to greenfields agreements bargaining, protected action ballots and unpaid parental leave have come into effect today, after the Federal Government’s Fair Work Amendment Bill received Royal Assent on 27 November
New TOIL model clause for modern awards
A very senior Full Bench of the Fair Work Commission has inserted a new model clause into al modern awards abut the circumstances in which employees can trade off overtime payments for time off in lieu; see
4 yearly review of modern awards—Award flexibility common issue – time off in lieu of payment for overtime – model term  FWCFB 6847 delivered 6 October 2015
New prescribed amount
The Registrar of the Western Australian Industrial Relations Commission has calculated that the new prescribed amount under the Industrial Relations Act 1979 WA will be $153,900. The sum serves a similar function to the jurisdiction of the Commission as the high income threshold does to the Fair Work Commission.
New high income threshold
The high income threshold from 1 July 2015 until 30 June 2016 will be $136,700 and the compensation limit will be $68,350.
National wage case
The Fair Work Commission has this morning (2 June) delivered a 2.5% increase in wage rates to those whose remuneration is governed by, or linked to award rates. This is 1.86 million Australian workers. It increases the minimum wage by $16 per week.
High Court upholds retaining the tort of intimidation in Australia
Today (29 May 2015) in the High Court of Australia, the CFMEU roundly lost an application for special leave to appeal against a decision of the Supreme Court of Victoria to uphold the continuing existence of the tort of intimidation in Australian common law. The tort was described this way by one of the barristers;”……. the Australian common law has developed and landed in a position where intimidation, which is constituted by a threat to commit an unlawful act which inflicts economic harm on a third party is actionable….” See Construction, Forestry, Mining & Energy Union v Boral Resources (Vic) Pty Ltd and Ors  HCATrans 122 heard 15 May 2015 but delivered today.
SBS sued again
Reporter Marion Ives has now (22 May 15) commenced proceedings against SBS seeking an unfair dismissal remedy claiming she was sacked the day after posting an article on Facebook which was critical of SBS management.
The can of worms which is McIntyre v SBS
The SBS journalist Scott McIntyre who was sacked because he tweeted what were regarded my many as offensive but personal opinions about Anzac Day has sued SBS for adverse action, presumably under sec 351 of the Fair Work Act which renders it unlawful to take adverse action against an employee because of the employee’s political opinion. Sec 771 of the Act also renders unlawful a termination of employment if one of the reasons is political opinion.
The case will be watched closely by employment law practitioners because the Act approaches the issue by prohibiting an employer taking action because of an employee’s political opinion, and not because of the expression of that opinion. At the time, SBS announced that the dismissal was based upon its Code of Conduct, but as I understand it, McIntyre’s conduct did not purport to be as a reporter, nor did it suggest that it was his employer’s views. Accordingly the case really does open up a can of worms, including the extent to which McIntyre’s conduct as a person was caught by the SBS Code of Conduct and whether the conduct alleged against him is about the publication of his views, or his views themselves.
New prescribed amount
There is a new prescribed amount for the purposes of the Industrial Relations Act 1979 WA. It has a similar legal effect to the high income threshold under the Fair Work Act. The new prescribed amount has been calculated by the Registrar of the WA Industrial Relations Commission to be $153,900 from 1 July 2015.
Party poopers; no implied term of trust and confidence
The New South Wales Court of Appeal has refused to acknowledge the implication of an implied term of mutual trust and confidence or good faith in the contracts of employment of two probationary teachers with the majority of the court agreeing with Justice Ward who said “”Bearing in mind the caution sounded by the High Court ( in Barker’s Case my insertion) as to the implication of a term of this kind into a broad-ranging class of contracts . . . I am not persuaded that the probationary nature of the teachers’ employment required, for the efficacy or worth of their employment contracts, that such a term be implied.” And then “It has not been demonstrated that a probationary common law contract of employment would be rendered nugatory or worthless or that it would be seriously undermined or devalued because of the absence of a term of mutual trust and confidence to this effect,” the court ruled.”The fact that the employment is of a probationary character does not therefore provide a meaningful point of distinction from the conclusion reached in Barker. Such a term does not meet the test in Byrne.” State of New South Wales v Shaw  NSWCA 97 delivered 17 April 2015
Pimple on a pumkin; significance of penalty rates exposed
There are 122 modern awards in Australia and only half of them provide for weekend penalty rates; and 26 expressly rule them out! There are some startling revelations about misconceptions about penalty rates in the Department of Employment’s submission to the Productivity Commission today.
Militant union fined for sacking “Trot”
The mining and energy division of the CFMEU has been fined $45,000 for sacking a union organiSer after a fellow union the AWU complained that he was a “Trot” who was “bagging” the AWU and the Federal Court found as fact that the organiser’s treatment was due largely to his political opinions and membership of the Socialist Alliance group.
“Making decisions which result in a person losing his employment because of his allegiance and membership of a political party should be the kind of conduct which simply does not occur in the Australian community any more,” Justice Mortimor said.
“It should be subject to strong disapproval by the courts. That it should occur within a union which, from the tenor of (the general secretary’s) evidence, places great store in the rights to freedom of speech and freedom of conscience, emphasises why this Court must mark its disapproval of the union’s conduct by the imposition of penalties.”
Sayed v Construction, Forestry, Mining and Energy Union  FCA 338 delivered 13 April 2015
Hot off the press; no general duty of good faith in employment contracts
An employee who was abused by a manager, to such a degree that he never recovered and never returned to work, has failed in the Federal Court in a claim for damages for breach of contract and adverse action.The breach of contract claim was based upon a proposition that the employment contract contained a general duty of good faith by the parties to each other, presumably on the basis that it is arguable, having been left open by the High Court in Barker’s case.Justice Jessup said the accepted contractual duty to co-operate was specific, but there was no such general duty in employment contracts.By way of example from an employee’s perspective “An employee who declines an invitation to act in a supervisory position to cover a temporary absence may be viewed by his or her employer as being distinctly uncooperative, but this would not give rise to a breach of contract,” he said.Justice Jessup said the manager used “intemperate and inappropriate terms” in the tirade, telling the inspector he was “a useless piece of fucking shit” and threatening to roster him on for weekend work so that he would not get to see his daughter.”You are the worst person in this place. I know what the fuck you’ve done,” the employee claimed the manger had told him.Justice Jessup said the exchange could not be described as a conversation.”It was almost completely one-sided. The employee was given little or no opportunity to say anything. He was subjected to such a vehement and vitriolic dressing down by the manager that it left him in no condition to return to his normal work.”Nevertheless in what might be regarded as a rather odd description n of such conduct the judge said “There was nothing underhand, opportunistic, expedient, self-interested or calculated about his conduct. Neither did he harbour some ulterior purpose, or exercise powers for purposes for which they were not intended.”Rather, albeit that his actions were unreasonable, and in some respects irrational, they were on any view spontaneous, and genuinely reflective of his then state of mind. They involved what must be regarded as the paradigm case of straight talking.”
Regulski v Victoria (2015) FCA 206 delivered on 13 March 2015
Brendan McCarthy belts the Fair Work Commission after retirement
Former Fair Work Commission Deputy President has strongly criticized the constitution and operations of the Fair Work Commission in a thoughtful submission to the Productivity Commission. A very fair, decent and intelligent man, he should be listened to. 12 March 2015
Drug testing in the workplace
A Full Bench of the Fair Work Commission has ruled that employers in safety-critical industries are prima facie entitled to enforce zero tolerance recreational drug policies because there is no scientific test for impairment arising from cannabis use.
Sharp v BCS Infrastructure Support Pty Limited (2015) FWCFB 1033 delivered on 27 February 2015.
What is workplace bullying?
In obiter dicta in Mac v Bank of Queensland Limited; Locke; Thompson; Hester; Van Den Heuvel; Newman  FWC 774 (13 February 2015) Vice President Hatcher said that in a dull spot — he called it a “longueur” — in the hearing he jotted down a list of features that might constitute bullying.”My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”
Free speech in the workplace
In an interesting case about the distinction between the expression of free speech in one’s own time and the expression of it in and via the workplace, a Full Bench of the Fair Work Commission has upheld the sacking of an employee who disseminated an anti-Muslim e-mail by publishing it vis his employer’s e-mail system. The tribunal said that while the employee was “no doubt entitled to hold views of the nature articulated in the email, the expression and propagation of those views in the workplace by the use of the employer’s computer and email system is a different matter”.It said there were constraints on freedom of speech even outside the workplace, citing the Federal Court’s Eatock v Bolt ruling and noting that the Queensland Anti-Discrimination Act made religious vilification by any “public act” unlawful, and “it has been held that it is arguable that an email sent to a large number of persons is a public act”.
The Full Bench continued by saying that within the workplace, the express terms of the employment contract and employer policies and lawful and reasonable directions could also impose further “significant constraints”.It said it was “well established that it is lawful and reasonable for an employer to require an employee to comply with policies and directions which control the nature of communications over the employer’s electronic communications system”; and “objectively inappropriate and offensive communications by an employee in the workplace may, depending on the circumstances, constitute a valid reason for dismissal”. According to the tribunal, Thiess’s workplace conduct policy required employees to treat each other with dignity, courtesy and respect and specifically prohibited religious vilification.
Accordingly the Full Bench dismissed the employee’s appeal against the original decision to the effect that the company had a valid reason for dismissal but that in the particular circumstances of the employee’s employablity elsewhere the dismissal was harsh and that compensation should be ordered in lieu of reinstatement.
Anderson v Thiess Pty Ltd (2015) FWCFB 478 delivered 30 January 2015
Social media issues
The use of social media is unquestionably ubiquitous in the workplace, both as a powerful communication tool, and as a distraction, depending upon your view and the context.
In Bradford Pedley v IPMS Pty Ltd  FWC 4282, the Fair Work Commission was called upon to determine the fairness of the dismissal of a senior interior designer of IPMS who was dismissed for using LinkedIn to contact the clients of his employer, to advertise that he was expanding his own business from a part-time to full-time operation and to solicit work.
The Commission’s conclusion was that the employee’s conduct constituted a breach of two provisions of his employment contract, one prohibiting the employee from competing with the employer, and another a requirement for the employee to at all times act honestly and in a manner consistent with employment.
In Naiman Clarke Pty Ltd v Tuccie  NSWSC 314 it was alleged that an employee who was a recruiter of staff had used her employer’s confidential target candidate list to systematically contact them before departing to work for a competitor. It was alleged that she was then able to use those LinkedIn contacts to place some of those candidates in her new role, obtaining financial benefits for both herself and the new employer. Although the case was more about pre-trial discovery processes, it is another example of the misuse of social media in the workplace. The case is expected if it reaches trial to be a useful guide to the question of the ownership of and right to use contacts elicited from social media, in that case LinkedIn.
In Cronin v Choice Homes (Queensland ) Pty Ltd (2013) FWC 10240, Asbury DP has held a dismissal to be unfair even while accepting that the employee had used internal e-mail functionality to send an “ill-considered, and personally offensive” e-mail to the CEO of the company.
The employee had claimed his email was intended as a joke, and there was evidence that the workplace culture was one where sexually explicit, sexist and racist emails were both accepted and endorsed.
He also argued that other employees who had engaged in serious misconduct had not been dismissed, and contended that his dismissal was disproportionate to the severity of the conduct in which he engaged.
The Deputy President agreed, finding that the dismissal was unfair, saying “Generally, an employee who sends an email inferring that the Chief Executive [Officer] is a ‘wanker’ will be found to have engaged in misconduct”.
However, in all the circumstances it did not constitute a valid reason for his dismissal, both because it was intended as a joke and “on an objective basis, no reasonable person could have perceived the email in any other way”.
Asbury DP also observed that he dismissal was “disproportionate when it is viewed in the context of the workplace culture at Choice Homes” which was
of “distributing and disseminating emails that tick every box in the spectrum of highly offensive material including hard core pornography, sexism and racism”.
Members of the management team, she said, were among the worst perpetrators, and even the staff who gave evidence that they were offended by the email were “shown to have regularly and systematically disseminated material which on any objective view was much worse than the email which resulted in [the employee’s] dismissal”.
“This is not a case where an employer had a firm and well established policy about use of its electronic communication system for the dissemination of inappropriate material and dismissed an employee for breach of that policy.
Personal use of internet at work
In an unfair dismissal case which centred upon the issue of whether personal use of internet browsing at work was a “sackable offence”, the Australian Department of Defence, described in the case as one of Australia’s largest employers, has been slammed by a senior member of the Fair Work Commission for its “amateurish and unfair” investigation which lead to the dismissal of an employee for excessive use of the internet at work and for using an anonymous search engine for personal purposes. The investigation was “an extraordinarily drawn out affair” and the Commission said that it had an expectation given the Department’s size for its investigation to be more “sophisticated”. In upholding the employee’s case against the validity of the dismissal, the Deputy President also criticized the Department’s finding about the efficacy of its policies and the seriousness of the conduct by the employee.
The Commission has adjourned to another day the question of the appropriate remedy for the employee.
Gmitrovic v Australian Government, Department of Defence (2014) FWC 1637 delivered on 13 June 2014.
Reinstatement of employment following unfair dismissal
In this case a Full Bench of the Fair Work Commission has upheld an appeal against a decision of a single commissioner to decline to order re-instatement having found the dismissal of a catholic teacher unfair, on the basis of accepting evidence from the school’s principal that he (the principal had lost trust and confidence in the teacher; and instead awarded the teacher almost the maximum allowable by way of compensation. In my view, the case is another of an emerging trend for the Commission to reject what had been becoming a trite way for employers to avoid reinstatement orders (which can admittedly have embarrassing and difficult management implications) by leading evidence that it is all too hard. The matter was sent back to the commission at first instance for further consideration.The case also involves a finding that although there was a valid reason for the dismissal it was nonetheless unfair and contains useful dicta about the need for the process to meaningfully identify possible adverse outcomes for employees. King v Catholic Education Diocese of Parramatta et al (2014) FWCFB delivered on 10 April 2014.
and in adverse action
In determining that the Act does not entitle an employee to have an advocate present, the Full Bench also reviewed the whole facts and determined that the employee’s resignation did not constitute a constructive dismissal.
This case is an excellent reference for the principles involved in determining whether the conduct of an employer constitutes a constructive dismissal.
Ode to a scab
I recently came across the following extract from American author Jack London’s poem, if that is what you can call it, “Ode to a Scab”.
“When a SCAB comes down the street men turn their backs and Angels weep in Heaven, and the Devil shuts the gates of Hell to keep him out. No man has a right to SCAB as long as there is a pool of water deep enough to drown his body in, or a rope long enough to hang his carcass with. Judas Iscariot was a gentleman compared with a SCAB. For betraying his Master, he had character enough to hang himself. A SCAB hasn’t.”
CFMEU v BHP Coal Pty Ltd (2012) FCA 1218
Drug and alcohol policies; their legal effect
Generally speaking, an employer’s policies which propound a zero tolerance to the presence of alcohol or drugs at work will be read down to mean a zero tolerance to the presence of drugs or alcohol above the Australian standard. In Toms v Harbour City Ferries Pty Ltd (2014) FWC 2327 delivered on 16 April 2014, the employer accepted in an unfair dismissal case that the policy should be so construed.
The Fair Work Commission held that there was a valid reason for the dismissal because the quantity of the drug present exceeded the Australian standard and therefore the Commission accepted that there had been a breach of the company’s drug and alcohol policy. Nevertheless the Commission held that the dismissal was unfair and ordered the reinstatement of the master on the basis of a number of the factors dealt with in sec 387 namely that the master had a long record of service (17 years), the drug had been taken for pain relief, he was not a drug user and had been tested negatively many times before, there was no evidence that the presence of the drug caused the accident, and the penalty of dismissal was too severe.
Defamation in the workplace
There has been a terribly interesting case about defamation in the workplace. The plaintiff brought an action in defamation in relation to an email disseminated on 18 July 2011. The plaintiff and defendant were both employed by the Department for Correctional Services (“DCS”) as correctional services officers and were working at the Adelaide Remand Centre at the time. The plaintiff alleges that the defendant published an email, from the plaintiff’s work email account, which was distributed to all of the people with email addresses at DCS and other government bodies.The email said:“hello people, just a note to say that i am a homosexual and i am looking for like minded people to share time with”.The plaintiff argued that the imputations arising from the email include that the plaintiff is homosexual, promiscuous and of loose moral character and is seeking to solicit sexual relationships or encounters with others. Also, that the plaintiff was a person who would use his employment to seek sexual relationships and would act in an unprofessional manner by using his work email to solicit sexual relationships.The defendant denied sending the subject email but Judge Cole of the South Australian District Court found as fact that the defendant hijacked the plaintiff’s e-mail account and sent the e-mail out as if it had been published by the plaintiff.The court held that the defendant sent the subject email, and that although it conveyed an imputation that the plaintiff was homosexual, which was false, such an imputation in Australia in these contemporary times (following other authoritative decisions) is not defamatory. All the other imputations contended for by the plaintiff were held to be defamatory and to have been conveyed and the plaintiff was awarded damages for non economic loss of $75,000 and damages for economic loss at a sum yet to be determined.
Restraints of Trade (Channel 10 versus Channel 7)
In an unedifying legal brawl between the Ten and Seven television networks over the seduction of a television programming executive, the Supreme Court of New South Wales has been required to determine how the status quo should be persevered pending the trial of allegations by Network Ten to the effect that when the executive resigned from his employment with Seven, Network Seven executives had induced the executive to breach his contract with Ten to move over into a programming role with it. The allegations, which were accepted by the judge for the purpose of the interim injunction hearing were that when the executive had tendered his resignation to Seven, that Network pulled out all stops to induce him to breach his contract with Ten, including a massive salary increase.
The judge refused to grant the Ten Network an injunction restraining the executive from working for Seven on the basis that even though the judge found Seven conduct a material factor in inducing the breach of the contract, because the effect of the injunction sought would be to force the executive to either remain without work or to work for the Ten Networks which he did evidently not want to do. The judge relied upon the traditional reluctance of courts of equity to enforce a contract of person service by specific performance. The case makes compelling reading for media followers and also those with a taste for the legal principles involved in the tort of wrongly inducing breach of contract and repudiation, and the principles which apply to injunctions in these types of cases.
Network Ten Pty Ltd v Seven Network (Operations) Ltd (2014) NSWSC 692 delivered on 29 May 2014
.There has been a terribly important Federal Court decision delivered on 25 March 2014 to the effect that the exercise of a workplace right to found an adverse action claim must be at the very least a genuinely held view, and not a strategic device to secure some other outcome. See my blog of 27 March in Shea v Truenergy.
Time limits for filing applications in the Fair Work Commission
I have posted a blog dated 26 October on this issue
A proposal for casual employees by the ACTU
The ACTU has announced a campaign to persuade the Fair Work Commission, currently undertaking its statutory 4 year review of modern awards, to insert into all awards a standard clause to guarantee casual employees, who are permanent in all but name, to become permanent employees, whether full time or part time. It has not yet announced any details of what it is seeking and employer bodies have already signaled opposition to the proposal. It is my understanding that the ACTU is not intending to propose that the guarantee apply to genuinely casual employees such as students employed in the hospitality industry.
High income threshold (a rare pronouncement)
Regulation 3.05(6) of the Fair Work Regulations provides that the value of some benefits other than the payment of money are to be included in the high income threshold for the purpose of sec 382 of the Act.
“(6) If:(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and (b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and (c) the FWC is satisfied, having regard to the circumstances, that: (i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and (ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and(iii) the FWC can estimate a real or notional money value of the benefit; the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act”.
In Maturu v Leica Geosystems Pty Ltd (2014) FWCFB 6735 delivered on 29 September 2014, a Full Bench of the Fair Work Commission has refused to allow the value of private use of a laptop and mobile phone to be included in the determination of whether the employee’s annual rate of earnings exceeded the high income threshold because there had been no agreement between the employer and the employee about it, or to value it
The reasoning of the Full Bench was as follows. “As there is no evidence of any agreed monetary value in relation to the mobile broadband usage, it appears that such usage could not meet the definition of “non-monetary benefit” as found in s.332(3) of the Act. It would appear, therefore, that the Commissioner utilised the Commission’s power under reg 3.05(6)(c) of the Regulations to estimate the real or notional money value of this “benefit.”
It is clear, in this context, that the mobile broadband service was provided to the Appellant as a piece of equipment that was essential to the performance of his job. The Commissioner found that the mobile broadband had been utilised while the Appellant was on sick leave, and calculated that 80% of this usage had been for private purposes. While this finding was open to the Commissioner on the basis of the evidence before her, we are not satisfied that, in all of the circumstances of the case, the private usage of the mobile broadband service is sufficient to enliven the Commission’s powers under reg 3.05(6).
In order for the Commission to make an estimate of the real or notional money value of a benefit pursuant to reg 3.05 and to have that estimate contribute to the calculation for the purposes of s.382(b)(iii) of the Act, each part of the cumulative test in reg 3.05(6) must be satisfied. Regulation 3.05(6)(a) requires that “the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer” (emphasis added).
While the contract of employment does not explicitly limit the use of mobile broadband to work purposes, the context in which it appears in the contract does not give rise to any implication of an agreement between the Appellant and the Respondent that the mobile broadband service may be used for private purposes.
The High Court has delivered its decision in the long awaited Barker’s case this week. The case concerns the important question whether Australian law will henceforth recognize an implied term of mutual trust and confidence in contracts of employment. The High Court has ruled that Australian courts should not follow England’s lead and the term is not to be incorporated as an implied term in Australian common law.
Redundancies during maternity leave
In a series of related cases, Justice White of the Federal Court of Australia has held that it is not unlawful for an employer to terminate the employment of a woman who is absent taking maternity leave, provided that the termination of employment is in no way motivated by considerations of gender, pregnancy or family responsibilities. Specifically, His Honour concluded that several redundancies which affected three women in that situation were not unlawful as contraventions of discrimination laws because they legitimately arose from restructuring of operations and economic strategies and were not because of the pregnancies. Interestingly the court found that the company’s conduct did not breach the obligation to keep the positions open pending completion of maternity leave because those positions were no longer available.
Poppy v Service to Youth Council Incorporated  FCA 656
Stanley v Service to Youth Council Incorporated  FCA 643
Stanley v Service to Youth Council Incorporated (No 2)  FCA 644
Dismissal by text or e-mail
I have posted a blog on 5 July about the law regarding this subject.
New high income threshold
The new annual high income threshold under the Fair Work Act, which inter alia determines eligibility for making applications for unfair dismissal remedies and award coverage will increase to $133,000 from 1 July 2014.
New super levy from 1 July
The mandatory minimum superannuation guarantee levy will rise from 1 July from 9.25% to 9.5% and remain at that level until 2018 from when it will increase in annual increments of 0.5% until it totals 12% in 2022. At least that is the position of the Coalition government announced by the Treasurer during the delivery of the 14/15 b