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
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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
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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
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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”
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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
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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
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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
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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
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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
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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
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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
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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)
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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)
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5D. Case examples – Linfox v Stutsel
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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?

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

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?

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
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