 Originally - November 23rd, 2017 Carol Louw Employment, Human Resources, Industrial relations
CONSTITUTIONAL LAW: TASMANIAN PROTESTERS ACT BURDENS FREEDOM OF POLITICAL COMMUNICATION By a majority of 5 to 2, the High Court has held that the substantive prohibitions and ancillary provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) impermissibly burdened the constitutional freedom of political communication and so were held to be invalid. Brown & Anor v State of Tasmania (2017) 69 AILR ¶102-879; [2017] HCA 43 TERMINATION OF EMPLOYMENT: WHEN LEGAL “ASSISTANCE” BECOMES LEGAL REPRESENTATION A Full Bench of the Fair Work Commission held that the term “representation” under s 596 of the Fair Work Act 2009 (Cth) extends beyond oral advocacy at a hearing. The full bench found that a lawyer “assisting” the employer at the hearing of an unfair dismissal application was in fact legally representing the employer. Fitzgerald v Woolworths Limited (2017) 69 AILR ¶102-880; [2017] FWCFB 2797 GENERAL PROTECTIONS: EMPLOYER TO PAY OVER $57,000 IN COMPENSATION AND PENALTIES FOR ADVERSE ACTION AGAINST PREGNANT EMPLOYEE The Federal Circuit Court ordered an employer to pay over $37,000 in compensation, and a $20,000 pecuniary penalty, after it took adverse action against a pregnant employee by bringing forward the date of her redundancy so that it took effect two days before she went on paid parental leave. Power v BOC Pty Ltd & Ors (No 2) (2017) 69 AILR ¶102-881; [2017] FCCA 2387 ENTERPRISE AGREEMENTS: EMPLOYER PREVENTED FROM RE-LITIGATING DISPUTE The Federal Court set aside an employer’s originating application for a declaration interpreting an enterprise agreement on the basis that there was no “matter” to be determined because the issue in dispute had already been resolved in a private arbitration before the Fair Work Commission. Energy Australia Yallourn Pty Ltd v AMWU (2017) 69 AILR ¶102-883; [2017] FCA 1245 WORKING WITH CHILDREN: TRIBUNAL INCORRECTLY APPLIED “UNJUSTIFIABLE RISK TO THE SAFETY OF CHILDREN” TEST The Supreme Court of Victoria found that the Victorian Civil and Administrative Tribunal erred when reviewing a decision refusing to grant an assessment notice under the Working with Children Act 2005 (Cth). The Tribunal failed to properly administer the test specified in the legislation which required determination of whether “giving the assessment notice would not pose an unjustifiable risk to the safety of children”. PQR v Secretary, Department of Justice and Regulation (No 2) (2017) 69 AILR ¶250-072; [2017] VSC 514 UNFAIR CONTRACT: CONTRACT FAILED TO PROTECT FROM BULLYING AND ARBITRARY TERMINATION A contract which failed to protect the worker from arbitrary and immediate termination, and did not adequately protect against bullying and harassment, was declared to be unfair and harsh by the Supreme Court of New South Wales. The plaintiff will receive a payment in connection with the contract, adjusted for a settlement reached with the second defendant. Sutton v BE Australia WD Pty Ltd (No 3) (2017) 69 AILR ¶200-588; [2017] NSWSC 689
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