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Approaches to employment law: Differences between the Federal Court and the Fair Work Commission Michael Tehan Partner, Minter Ellison 23 October 2013.

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Presentation on theme: "Approaches to employment law: Differences between the Federal Court and the Fair Work Commission Michael Tehan Partner, Minter Ellison 23 October 2013."— Presentation transcript:

1 Approaches to employment law: Differences between the Federal Court and the Fair Work Commission Michael Tehan Partner, Minter Ellison 23 October 2013 Comcover Legal Service Information Forum Series 10909826_2

2 Presentation structure 1.Why bother looking at the differences? 2.Roles of FCA and FWC in relation to WR 3.Similarities 4.Key differences 5.Case examples Shea v TruEnergy [2013] FCA 935 & [2013] FCA 937 Robinson v Goodman [2013] FCA 893 B, C and D v Australia Post [2013] FWCFB 6191 Linfox v Stutsel [2012] FWAFB 7097 CBA v Barker [2013] FCAFC 83 6.Conclusion 10909826_2

3 1. Why bother looking at the differences? Normative effect of decisions (esp. FWC) help sustain norms and values help develop norms and values Each forum has its own law and lore Decisions can create economic and political difficulties Need to adapt strategy to jurisdiction Practical reasons – compliance with court rules and protocol 10909826_2

4 2. Roles of FCA and FWC in relation to WR FCA Adverse action s 371 Breach of EA s 50 Breach of MA s 45 Judicial review of FWCFB Breach of contract claims in ‘accrued jurisdiction’ Anti-discrim legislation WHS legislation Interpret and enforce instruments FWC Unfair dismissal s 394 Private arbitration s 739 Adverse action s 365 Approval of EA s 185 PABO s 437 Suspend / stop industrial action ss 418-424 Right of entry s 505 Interpret instruments as “a step along the way” 10909826_2

5 3. Similarities between FCA and FWC Doctrine of precedent (stare decisis) Modern Awards Review [2012] FWCFB 5600 at [86] Procedural fairness Coal & Allied v Lawler [2011] FCAFC 54 at [25] But query Discretionary decisions – sentencing, damages Status of judges and tribunal members Type/s of dispute resolution utilised 10909826_2

6 Presentation structure 1.Why bother looking at the differences? 2.Roles of FCA and FWC in relation to WR 3.Similarities 4.Key differences 5.Case examples Shea v TruEnergy [2013] FCA 935 & [2013] FCA 937 Robinson v Goodman [2013] FCA 893 B, C and D v Australia Post [2013] FWCFB 6191 Linfox v Stutsel [2012] FWAFB 7097 CBA v Barker [2013] FCAFC 83 6.Conclusion 10909826_2

7 4. Key differences between FCA and FWC Source of power – judicial vs arbitral power CFMEU v AIRC (2001) 203 CLR 645 Rules of evidence (s 591) Clientele – repeat players and ‘one shotters’ Costs (s 570 and s 611) Legal representation (s 596) Warrell v Walton [2013] FCA 291 Relief available (s 545 & s 599) Black letter law vs. industrial lore 10909826_2

8 5A. Case example – Shea v TruEnergy Adverse action claim by government relations executive Five complaints, then made redundant Claim for $6 million Numerous interlocutory skirmishes Private text messages between MD and GC not admitted – irrelevant Privilege over draft expert reports - refused to order production 10909826_2

9 5A. Case example – Shea v TruEnergy Lewd text messages: Sexual relations between colleagues are common... There is nothing to suggest that the personal relationships of the MD were obtruded into the workplace such as to create a culture of sexual harassment Privilege over draft expert reports: Privilege may be waived where it appears that feedback on drafts has influenced the content of the final report in a ‘substantial sense’ or that expert’s conclusions were based on material not disclosed in report 10909826_2

10 5B. Case example – Robinson v Goodman Sexual harassment claim by a former employee against owner of Rivers Clothing Evidence of Mr G’s similar conduct towards two other female employees adduced Evidence Act - ‘tendency evidence’ not admissible as highly prejudicial unless... FCA – Admissible as it reveals a propensity in Mr G to act a particular way towards female staff and significant probative value 10909826_2

11 5B. Case example – Robinson v Goodman Basis on which tendency evidence was admitted in this case [31]-[32] Details of tendency evidence may differ from allegations in a proceeding, but if the overall circumstances are sufficiently similar it may have significant probative value. Here the status of the women as staff of Mr G, their attractiveness, and the occurrence of the same kind of events (e.g. buying trips, fit sessions, photo shoots) gives rise to the requisite degree of similarity Post script – Decision on sketch artist 10909826_2

12 5C. Case examples – BCD v Australia Post Three blue collar employees with long service and clean records – detected emailing porn FWCFB – (2:1) said there was an emerging trend of cases treating porn as invariably warranting dismissal - QLD Rail v Wake FWCFB – (2:1) said there was a ‘valid reason’ for dismissal but dismissal ‘harsh’ because: Misconduct did not warrant dismissal Culture of accepting or condoning emails Differential treatment (managers not punished) 10909826_2

13 5C. Case examples – BCD v Australia Post Other factors supporting harshness No evidence of reputational damage to Post No complaints from recipients Log-on notice became ‘part of the wallpaper’ Was there a jurisdictional error? 15 month delay Took into account irrelevant considerations Manifestly unreasonable (Wednesbury) No public interest (s 400) 10909826_2

14 5D. Case examples – Linfox v Stutsel 10909826_2

15 5D. Case examples – Linfox v Stutsel So why did Linfox lose? No social media policy Absence of an apparent reason for prying Linfox ‘over egged the pudding’ on comments Target of comments posted overseas Poor employment prospects due to work injury Others who posted comments not disciplined Features of individual - blue collar, not IT literate Dismissal of union official - bad look?

16 5E. Case examples – Barker v CBA Executive manager employed for 27 years Contract with redundancy + redeployment clause Mr B told to return items and leave immediately TPA and breach of contract claim in FCA September 2012 - $317,500 damages for breach of implied contractual term of MT&C August 2013 - FCAFC appeal unsuccessful September 2013 - HCA special leave application

17 5E. Case examples – Barker v CBA Why is Barker relevant? Exemplifies different approach – FWC vs FCA Contractual principles – fairness irrelevant Existence of unfair dismissal regime no longer seen as a bar to recognition of MT&C Surge in common law claims? Contract claims (wrongful dismissal) start to resemble unfair dismissal claims?

18 6. Conclusion FWC is changing Union density is down to 18% (43% public sector) 61% caseload individual disputes Anti-bullying jurisdiction FWC low cost compared to FCA ($65.50) Unfair dismissal cases, but also ROE and industrial action cases, sustain + develop norms of behaviour at work Running FWC cases well is very important. Settle poor cases. Run good cases, but run them well 10909826_2


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