GENERAL PROTECTIONS: OH&S OFFICER NOT DISMISSED FOR RAISING WORKPLACE COMPLAINTS
The Federal Circuit Court held that an employer discharged the onus of proving that it did not take adverse action against an employee because she exercised workplace rights by raising sexual harassment complaints about another employee.
Morley v Monza Imports Australia Pty Ltd (2018) 70 AILR ¶102-933;  FCCA 622
ANTI-BULLYING: ORDER ISSUED AFTER EMPLOYER INACTION
The Fair Work Commission held that a human resources advisor and a manager consciously and unreasonably decided against dealing with an employee’s bullying complaints after imposing their own requirements on the information that she had to provide before they would investigate.
Application by Watts (2018) 70 AILR ¶102-934;  FWC 1455
INDUSTRIAL ACTION: FIRE AUXILIARY TEAM COULD NOT RESIGN EN MASSE
The Fair Work Commission issued an order that blocked an attempt by 83 employees of an oil and gas refinery to resign en masse as members of an in-house Fire Auxiliary Team. That order was made on the basis that the resignations amounted to unprotected industrial action.
Viva Energy Refining Pty Ltd v Jones & Ors (2018) 70 AILR ¶102-935;  FWC 1542
EMPLOYEE ENTITLEMENTS: EMPLOYEES GET PRIORITY AFTER CORPORATE TRUSTEE INSOLVENCY
A Full Court of the Federal Court considered a situation where a company that was a trustee of a business which went insolvent leaving, among other debts, outstanding employee entitlements. The majority of the Court held that, even where the insolvent company held assets as trustee for the trust, the realisation of those assets could be applied to the outstanding employee entitlements in accordance with the priorities set out in the Corporations Act 2001 (Cth) which gave employee entitlements preferences over other creditors.
Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 70 AILR ¶102-937;  FCAFC 40
ENTERPRISE AGREEMENTS: OVERTIME CLAUSE CREATES AN ENTITLEMENT, NOT AN OBLIGATION
The Federal Court of Australia held that a clause of an enterprise agreement which provided that an employer “may” require employees to work “reasonable overtime” was not capable of being contravened for the purposes of s 50 of the Fair Work Act 2009 (Cth).
Construction, Forestry, Mining and Energy Union v Hay Point Services (2018) 70 AILR ¶102-938;  FCA 417
ADVERSE ACTION: WORKPLACE RIGHT TO COMPLAIN ABOUT MANAGEMENT DECISIONS
The Federal Circuit Court of Australia held that an employer took adverse action against an employee by dismissing him after he exercised a workplace right by making a complaint about the management decisions of his superiors. As such, the employee was awarded $144,570.48 in compensation plus a pecuniary penalty of $12,500.
Fatouros v Broadreach Services Pty Ltd (2018) 70 AILR ¶102-939;  FCCA 769
INDUSTRIAL ACTION: PENALTIES IMPOSED FOR BREACH OF ORDERS WERE MANIFESTLY EXCESSIVE
The New South Wales Court of Appeal has upheld an appeal challenging the quantum of penalties imposed on a union for contravening orders to cease industrial action.
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 70 AILR ¶200-592;  NSWCA 39
ENTITLEMENTS: FRANCHISOR VALIDLY TERMINATED AGREEMENT WITH FRANCHISEE UNDERPAYING EMPLOYEES
The New South Wales Court of Appeal unanimously dismissed an appeal from a decision which held that a franchise agreement was validly terminated by the franchisor because the franchisee engaged in fraudulent conduct in conducting a cash back scheme to underpay employees.
Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd (2018) 70 AILR ¶200-593;  NSWCA 58