INDUSTRIAL LAW
Leave refused for applicants to first allege at penalty hearing that contraventions were “serious contraventions” within the meaning of s557A(1) of the Fair Work Act 2009 (Cth).
In Australian Salaried Medical Officers’ Federation v Peninsula Health (No 3) [2024] FCA 1255 (31 October 2024), the Federal Court of Australia (Bromberg J) refused leave by the applicants to first allege at the penalty hearing that contraventions were “serious contraventions” within the meaning of s557A(1) of the Fair Work Act 2009 (Cth) (Act).
Where s557A(1) of the Act is satisfied and the contravention alleged is found to be a “serious contravention”, s539 of the Act “operates to increase the maximum penalty to 600 penalty units rather than the 60 penalty units that applies to an ordinary contravention” (at [29]).
The Court did not accept that the just resolution of the dispute would be facilitated by the Court granting the leave sought by the applicants (at [35]).
The Court held that s557A does not merely deal with the penalty that may be imposed for a contravention under the Act – it also provides for a particular type of contravention. The question of whether that kind of contravention has been established on the evidence is a matter that goes to the respondent’s liability in relation to that particular kind of contravention, not merely to the extent of the pecuniary penalty that a court may impose for that contravention (at [36]).
The employer’s liability for a contravention of the kind provided for by s557A(1) was not raised at an issue at the liability hearing, nor dealt with by the liability judgment (at [38]).
The Court held that to grant leave would be to permit the applicants “to agitate on the penalty hearing issues going to liability”, which were not agitated at the liability hearing (at [39]).
The employer would have suffered substantial injustice if it was not permitted to know “from the outset of the proceeding not only the case that it had to meet at trial but also the extent of its exposure to penalties” should the applicants succeed (at [42]).
Insistence on compliance with a lawful direction did not constitute undue influence within the meaning of s344 of the Fair Work Act 2009 (Cth).
In Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404 (6 December 2024), the Federal Court of Australia (Kennett J) did not find that insistence on compliance with a lawful direction constituted undue influence within the meaning of s344 of the Fair Work Act 2009 (Cth) (Act).
The appellant claimed compensation arising out of termination of employment. Among other things, the appellant had been directed to work on-call, but did not wish to perform on-call duties.
The Court held that if the employer was entitled to direct the employee to participate in the on-call arrangements, persistence on the part of the employer in directing or trying to persuade the employee to participate in those arrangements did not constitute undue pressure.
The Court went further to find that even if the employer was not so entitled as a matter of law, there was no evidence capable of suggesting that the employer was doing anything more than attempting to achieve compliance by the employee with what the employer understood to be his obligations as an employee. That did not constitute pressure directed at securing a decision of a kind referred to in s344 of the Act (at [78]).
HUMAN RIGHTS
There was insufficient evidence to suggest that the applicant had a tenable claim of unlawful age-based discrimination, despite possible communication issues by respondent.
In Kingsbury v Melbourne City Mission [2024] FCA 1390 (3 December 2024), the Federal Court of Australia (Wheelahan J) dismissed an application for leave to bring a proceeding in circumstances where there was insufficient evidence to suggest that the applicant had a tenable claim of unlawful age-based discrimination.
The Court acknowledged that there may have been problems with the communications that Melbourne City Mission (Mission) sent to the applicant, leading the applicant to believe that all relevant information had been submitted on the applicant’s behalf in relation to his application for entry onto the Victorian Housing Register (Register) (at [25]). The Mission may have failed to ensure that the Department of Families, Fairness and Housing had all the information necessary to consider the applicant’s application to get onto the Register (at [29]).
However, the Court emphasised that the question before the Court was to determine whether the applicant should be given leave to commence a proceeding (at [25]).
The potential problems with communication did not form the essence of the applicant’s complaint. Rather, the applicant’s complaint was concerned with deliberate and intentional acts to harm his interests “on the basis of various characteristics that he possesses” (at [26]).
Ultimately, the determinative consideration for the Court was that the applicant did not produce sufficient evidence to suggest that the applicant had a tenable claim (at [29]).
