Precedent (Australian Lawyers Alliance)
IS ALL FAIR IN LOVE AND WORK?
By Kirsty Easdale
Our last industrial relations edition, in September/October 2009, primarily covered the recent introduction of the Fair Work Act 2009 (Cth) (Fair Work Act). Seven years on and there is greater clarity around the judicial application of the Fair Work Act, the functions of the Fair Work Ombudsman and Fair Work Commission, and what impact this pivotal legislation has had on employees and the enforcement of their rights.
One of the core changes to the industrial relations legislative framework with the introduction of the Fair Work Act was Part 3-1, the general protections division. Unfortunately, the Courts have interpreted this beneficial legislation narrowly, arguably undermining the value of this part to employees, in particular the utility of the workplace discrimination section. In this edition Anthony Howell reviews recent developments in the application by the Courts of the reverse onus of proof contained in s361. Matthew Moir also focuses on Part 3-1, but addresses the remedies available, the accessorial liability provisions and the increasing trend towards costs orders against vexatious or baseless complaints. Alexandra Grayson provides a practical ‘How to Guide’ for the Fair Work Commission (FWC) for the practitioner unfamiliar with the jurisdiction. Des Kennedy SC provides a timely update on discrimination claims under the suite of federal anti-discrimination laws and identifies judicial trends in their interpretation.
Since 2009, a number of other trends in industrial relations law have emerged, from the increasing impact of social media on employment contexts, the growing casualisation of the Australian workforce, and the blurring of the line of where the workplace ends and the private lives of employees begin. Louise Thornthwaite examines how the FWC has begun to distinguish between comments made on different social media and have recently determined that employees have a right to political comment and criticism of working conditions and arrangements when they are off duty. Jeffrey Phillips SC and Nicholas Read consider the various judicial determinations of the meaning of casual employment. Fay Calderone reviews the recent decisions of Keenan v Leighton Boral Amey Joint Venture, Comcare v PVYW, and Vergara v Ewin to highlight the expansion of the traditional workplace past the four walls of the office.
On a more topical note, Giri Sivaraman and Patrick Turner discuss the lessons learnt from the 7-Eleven wages scandal, and Tony Slevin considers the Trade Union Royal Commission’s recent and extensive use of the referral power under the Royal Commissions Act 1902 (Cth).
Turning to common law employment contracts, Mark Gibian assesses the impact of one of the most controversial, recent, employment rulings, Commonwealth Bank v Barker. The High Court in Barker found that there is no implied duty of mutual trust and confidence in Australian employment contracts, but left open the possibility of an implied duty to perform the employment contract in good faith. Uche Okereke-Fisher considers the intersection between discretionary bonus payments and serious misconduct with reference to the recent cases of Downer EDI Limited v Gillies and Bibby Financial Services Australia Pty Ltd v Sharma.
From the duty of care perspective, Penny Flint discusses recent developments in an employer’s duty of care to prevent psychiatric injury and Wendy Kleyn provides a case note on Mathews v Winslow Constructors (VIC) Pty Ltd, as an example of what employers ought not to do in handling complaints of sexual harassment and in the conduct of litigation. Anna Talbot delivers an analysis of the inconsistency between workplace health and safety obligations, together with other beneficial legislation, and the Border Force Act 2015 (Cth) in the immigration detention context.
Kirsty Easdale is a member of the Precedent editorial committee and a solicitor with Colquhoun Murphy Lawyers in Canberra, practising primarily in employment law. PHONE (02) 6248 0449 EMAIL firstname.lastname@example.org
 Anna Chapman, ‘Judicial Method and the Interpretation of Industrial Discrimination’ (2015) 28(1) Australian Journal of Labour Law 1, 1.
 Belinda Smith, ‘What Kind of Equality Can We Expect from the The Fair Work Act’  MelbULawRw 19; (2011) 35 Melbourne University Law Review 545, 574.
 Fair Work Act 2009 (Cth), s351.
 Fair Work Act 2009 (Cth).
  FWC 3156.
  HCA 41.
  FCAFC 100.
 Royal Commissions Act 2002 (Cth), s6P.
  HCA 32; (2014) 253 CLR 169.
  NSWCA 333.
  NSWCA 37.
  VSC 728.