These important cases have been summarised and included in the Wolters Kluwer (CCH) Australian Industrial Law Reports. The Australian Industrial Law Reports summarise industrial cases from all Australian jurisdictions on a weekly basis with links to the full text judgment provided by Austlii. Not a subscriber? Try a free 4 week subscription to the Australian Industrial law Reports here.
EMPLOYEE ENTITLEMENTS: CONTROL TIPPED THE SCALES IN FINDING CALL CENTRE WORKERS WERE EMPLOYEES AND NOT RUNNING OWN BUSINESS
The Federal Court found that the applicants were employees and not independent contractors, and were covered by the Clerks – Private Sector Award 2010. It followed that the respondent employer had contravened the Clerks Award and the Fair Work Act 2009 (Cth) by not paying the applicants the award rate, overtime and penalties, or superannuation. The respondent also contravened the FW Act by misrepresenting that the applicants were independent contractors, and by not providing them with pay slips.
Putland v Royans Wagga Pty Limited (2017) AILR ¶102-857
GENERAL PROTECTIONS: TRAINING CANCELLED WHEN EMPLOYEE EXERCISED WORKPLACE RIGHT TO CARER’S LEAVE
The Federal Circuit Court of Australia held that an employer took unlawful adverse action against an employee because he exercised his workplace rights to take carer’s leave and to take care for his own workplace safety, and because of his family or carer’s responsibilities.
Australian Rail, Tram and Bus Industry Union v Australasian Western Railroad Pty Ltd (2017) AILR ¶102-856
INDUSTRIAL DISPUTE: EVIDENCE COVERED BY PARLIAMENTARY PRIVILEGE
A Full Bench of the Fair Work Commission has ruled that evidence filed by the parties in an industrial dispute is covered by Parliamentary privilege as set out in s 16 of the Parliamentary Privileges Act 1987 (Cth).
Department of Immigration and Border Protection v CPSU (2017) AILR ¶102-855
GENERAL PROTECTIONS: TIMING OF REDUNDANCY OF PREGNANT EMPLOYEE WAS ADVERSE ACTION FOR A PROHIBITED REASON
The Federal Circuit Court held that bringing forward a pregnant employee’s redundancy so that it took effect two days before she went on paid parental leave was adverse action taken for a prohibited reason.
Power v BOC Ltd & Ors (2017) AILR ¶ 102-854
ENTERPRISE AGREEMENT: COMMISSION TERMINATES AGREEMENT PREVENTING EMPLOYER FROM COMPETING IN GLOBAL MARKET
The Fair Work Commission has terminated an enterprise agreement despite significant employee objections. The Commission accepted evidence that the existing agreement imposed significant constraints on how the employer operated and managed its employees and its ability to compete in the challenging, global education marketplace.
Re Murdoch University Enterprise Agreement 2014 (2017) 69 AILR ¶102-853(3)
CONTRACT OF EMPLOYMENT: RESTRAINT OF TRADE CLAUSE OF NO EFFECT WHERE EMPLOYER REPUDIATED CONTRACT
The Victorian Court of Appeal upheld a decision of the Supreme Court of Victoria which found that a financial services firm repudiated its Managing Principal’s contract when it sought to restructure the organisation and change the way bonuses were calculated. The VCA also concluded that an employer cannot rely upon a restraint of trade clause in circumstances where the employer has repudiated the contract, and the employee has accepted this repudiation.
Crowe Horwath (Aust) Pty Ltd v Loone (2017) AILR ¶250-071