Major court and tribunal decisions in Australia in 2020

Abstract

This annual survey of significant court and tribunal decisions in Australia during 2020 considers matters spanning five thematic groupings. First, it addresses decisions that arose in the wake of the Coronavirus pandemic. Secondly, it examines how the common law has developed the National Employment Standards, particularly for low-paid and precariously employed workers, and general protections. Thirdly, it reviews cases concerning the definition of ‘employment’, emphasising that definition’s ongoing arbitrariness. Fourthly, it examines the development of the common law as it relates to the termination of employment, especially in the context of the exercise of academic freedom. Finally, decisions relating to the limits of industrial activity are reviewed.

Major court and tribunal decisions in Australia in 2021

“…Among other reasons, the decision in Workpac prompted the Full Bench of the Fair Work Commission to stay the impending appeal until the High Court hands down its appeal decisions in Jamsek v ZG Operations Pty Ltd (S27/2021) and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (P5/2021) ( Franco at [1] and [8]). As discussed in last year's annual review (Golding, 2021a), these decisions concern whether workers are properly categorised as independent contractors and will undoubtedly be the subject of consideration in the next annual review.…”

“…While on the topic of significant High Court decisions, it is also worth acknowledging two further matters before the High Court that were influential in 2021. The first is Ridd v James Cook University (2021) 394 ALR 12, (Ridd) , which, as discussed in the previous two annual reviews (Allen and Landau, 2020; Golding, 2021a), concerned Dr Ridd, who, during his employment with James Cook University, criticised research performed by his colleagues about damage to the Great Barrier Reef in the media, suggesting that it was misleading. He was dismissed in 2018 for a purported breach of the University's Code of Conduct but challenged that dismissal as unlawful in the then Federal Circuit Court, suggesting that he had intellectual freedom to make such comments, which was protected by the University's enterprise agreement.…”

“…As with 2020, Qantas was again in sharp focus, finding itself embroiled in a series of cases arising out of pandemic-related employment law disputes (Golding, 2021a). In Watson v National Jet Systems [2021] FWC 6182, the Fair Work Commission decided that Qantas’ management of a flight attendant who failed to follow a mask mandate was lawful and reasonable, and that she was not constructively dismissed when required to comply with Qantas’ directions.…”

“…It must also be recalled that last year, the Full Federal Court confirmed that Qantas employees on stand down were not entitled to use certain leave entitlements unless their employer specifically agreed (Golding, 2021a: 397–8). This year, the High Court has since declined to hear an appeal on the matter stating ‘there is no reason to doubt the correctness’ of the Full Federal Court decision ( Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2021] HCATrans 10).…”

Industrial legislation in Australia in 2021

“…The decisions found that the term ‘casual’ in the FW Act would be defined by reference to the common law meaning of the term ‘casual’, not by reference to common usage in awards or enterprise agreements, or to the parties’ contractual description of the relationship. This highlighted that an employee could be ‘continuing’ for the purposes of FW Act entitlements (if in fact their contract at common law was not casual), while at the same time being treated as casual under industrial instruments, and entitled to a casual loading (see further Golding, 2021: 401–3). This meant that many employers were facing significant back pay claims from incorrectly classified employees for unpaid leave entitlements (Workplace Express, 2020b).…”