The high income threshold for the purposes of the Fair Work
Commission’s jurisdiction is $133,000 for the year from 1 July 2014. The prescribed
amount for the Western Australian Industrial Relations Commission’s
jurisdiction for the same period is $149,400.
Employee records are exempted from the Privacy Act
for the private sector (but not Australian government agencies),
notwithstanding that they may include the very “personal information” which the
legislation sets out to protect. A private sector organisation which is
or was an employer of an individual is exempt from the operation of the Privacy
Act where its act or practice is related directly
to: the employment relationship between the organisation and the individual;
and an employee record held by the organisation.
A worker with a heart condition
has won an adverse action verdict against a company which argued that his
departure from the company was by mutual agreement. The Federal Court rejected
the argument (which was made curiously and if I may say so dangerously in a no
case to answer submission on the basis that there had been no dismissal with
the company electing not to give evidence thus exposing itself to the full
force of the reverse onus of proof implications), instead concluding that the
company gave the employee a fait accompli.
In a claim by
BHP Coal for an order for costs against an employee who had unsuccessfully
sought an unfair dismissal remedy, Commissioner Johns of the Fair Work Commission
has ruled that seeking a costs order in these circumstances could be described
as "akin to kicking a man when he is down" and acting without a
"sense of Christian charity or empathy". The costs order was
sought under the new power in sec 400A of the Act (if the Commission is
satisfied that the first party caused those costs to be incurred because of an
unreasonable act or omission of the first party in connection with the conduct
or continuation of the matter), which is in
addition to the former power in sec 611 ( if the Commission is satisfied that
the first person made the application, or the first person responded to the
application, vexatiously or without reasonable cause or it is satisfied that it
should have been reasonably apparent to the first person that the first
person's application, or the first person's response to the application, had no
reasonable prospect of success).
HR Managers and other senior managers of companies
which breach the Fair Work Act and associated laws may be successfully
prosecuted under what is termed "accessorial liability".
Following the successful prosecution of a HR Manager after employees
were fired and them re-hired as independent contractors in an arrangement
found to be a sham* the then Fair Work Ombudsman said at a conference at the
time, “This is the first time we have used the accessorial liability provisions
against a non-owner manager, and serves as a warning against managerial
decisions which know proposed conduct is contrary to the Fair Work Act.
Technicalities are alive and
well. The Federal Court has thrown out an attempt by the Fair Work Ombudsman to
have penalties applied to Jetstar and two foreign based companies bound by
service agreements with Jetstar to pay remuneration under the Australian
Aircraft Cabin Crew Award to cabin crew flying routes in Australia which had
their origin or final destination in Singapore and Thailand. The court concluded
that those companies were not national system employers and that in the case of
Jetstar the cabin crew were not national system employees.
question of whether damages can be awarded for such unliquidated damages (ie
those not capable of being proved by figures) such as distress, humiliation and
loss of reputation under an employment contract has again been before the
courts. In Shadiac v SAAFL (2014) SADC 124 delivered on 11 July 2014 a football
administrator claimed that he had been sacked mid season and in breach of his
contract of service an d sought damages to include a sum to compensate him for
inter alia loss of reputation, reduced earning capacity, humiliation hurt and
distress. On appeal a judge has held that whilst the Baltic Shipping Line case
( (1993) 176 CLR 344) is authority for
the proposition that such damages can be awarded for breach of contract, the
law in South Australia is settled and such damages cannot be received there
unless the very strict exceptions outlined by the High Court in that case are
Sec 352 of the Fair Work
Act renders it unlawful for an employer to dismiss an employee because the
employee is temporarily absent from work because of illness or injury of a kind
prescribed by the regulations. This provision is in the general protections
provisions of the legislation. I have set out the regulation in this blog,
however the regulations provide inter alia that an illness or injury is not
prescribed if the employee’s absence exceeds 3 months.
The Federal Court has however found that an employee with cancer who had
been absent from work for 10 months could nonetheless bring proceedings for a
contravention of t other Commonwealth laws.
Court has ordered an employer to produce to an employee who has commenced
proceedings for adverse action a copy of a report prepared by its lawyers into
the circumstances of the publication of an e-mail and on which the employer
allegedly based its decision to dismiss the employee. The Court rejected the employer’s
argument that the report was the subject of legal professional privilege on the
basis that while it had been produced for the purposes of the provision of
legal advice, it nevertheless contained findings of fact which were relevant to
the decision to dismiss, which of course is the integral issue in such cases.
There is a 14
day time limit for bringing a general protections contravention application in
the Federal Court following the issue of a sec 369 certificate by the Fair Work
A union’s endeavour
to have an award it manages amended in the award modernization process to prohibit
retailers from requiring service staff to wear clothing which is humiliating,
either from its tackiness (“I Love sex" T shirts ) covered in badges was at first rejected by the
Fair Work Commission.
Lewin at first instance held that the claim it did not fall within the list of
award terms in section 139 of
the Fair Work Act, and was not an "incidental term" under sec
142 because it was not essential to make another term operate in a practical
The Fair Work Commission has rejected an application under sec 789FC of the Fair Work Act for an anti bullying order brought by an employee who complained of bullying when he was instructed to carry out a project which was not expressly within his position description. Commissioner Cloghan, who sits in Perth, held that it was not unreasonable for an employee to be asked to perform a function which might not necessarily be covered by his PD observing that it is not uncommon for position descriptions to be "couched in general terms and not contain each and every current or projected task to be undertaken", also pointing out that the particular PD contained "no mention of specific projects".
The Fair Work Commission remains philosophically opposed to allowing supervisors to be covered by the same enterprise agreement which covers employees who they supervise ."They also represent employees who report to the supervisors. It would be fundamentally inappropriate to do anything other than to regard those unions as relevant bargaining representatives or to deprive them of the opportunity to express a position relative to the inclusion of the supervisors in the agreement given the stage reached in the bargaining process," the Commission has recently ruled.
Morrow v Tattsbet Ltd (2014) FCCA 1327 delivered on 4 July 2014 is a useful decision of the Federal Circuit Court about a modern approach to distinguishing between an employee and independent contractor. In an action for adverse action by a former operator of a betting agency, the court concluded that notwithstanding that the applicant was responsible for deciding how best to run her agency to maximise its financial return and to employ people and set their pay rates, hours of work and conditions of employment, the applicant was in reality working in the business rather than “a business of her own” and she was thus an employee and capable of bringing the application.
A Full Bench of the Federal Court of Australia has dramatically increased the compensation for the non-economic loss component of damages awarded to a female employee who was the victim of sexual harassment at work over a 6 month period and in doing so has re-written the Court’s view of the condemnation which it considers the public has for this conduct and its effect upon victims.
The Full Bench increased the award of damages for non-economic loss from $18,000 to $100,000. The judgments of the court make very interesting reading and are a powerful insight into the way some judges approach the task of analyzing the inter-play between society’s values and awards of damages.
As a general rule, overtime payable to casual employees for overtime, or other work outside of ordinary hours where penalty rates might be called for, is calculated by reference to the rate for ordinary hours and not the causal rate which includes the standard 15% loading (which compensates casual employees for not having paid leave or guaranteed hours. However some industrial instruments provide that the rate is to include the penalty rate. An example is the Manufacturing and Associated Industries and Occupations Award 2010. Clause 14 of that modern award treats the casual loading of 15% as being included in what the awards terms the all purpose rate.
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 discriminations laws because they legitimately arose from restructuring of operations and economic strategies and were not because of the pregnancies.
The Fair Work Commission has determined that it is not permissible to incorporate a payment for annual leave into an hourly rate of pay in an enterprise agreement because to do so is to exclude annual leave contrary to the NES; furthermore, so the decision holds, such an arrangement offends the provision which requires annual leave to be paid at the base rate of pay at the time the leave is taken and “paid annual leave” means annual leave to be taken with pay.
Re Caravan Building Pty Ltd  FWCFB 3202
Lawyers call the concept of responsibility depending upon metal capacity and intent as "means rea". The need for caution when considering the dismissal of an employee who is suffering mental illness is apparent in Salazar v John Holland Pty Ltd (2014) FWC 4030 delivered on 26 June 2014. The Commissioner of the Fair Work Commission was scathing of the decision makers not taking mental illness into consideration when dismissing an employee for misconduct.
"It is neither sound nor defensible to rely upon the conduct of an employee with an obvious mental health problem in drawing a conclusion that the conduct of the employee amounts to serious misconduct," Commissioner Ryan found.
On employer is entirely within its rights to restructure its operations and in the process redistribute the tasks which may have previously been performed by another employee, even if the new role has a need for higher qualifications and thus the occupant of that former position is no longer suitable to fill it.. The fact that much of the functionality of a former position still needs to be carried out does not mean that the position has not become legitimately redundant. The question is whether the changes are reasonable from an operational perspective, in which event the Fair Work Commission will not interfere with the exercise of legitimate managerial prerogative.