Recent cases in labour law — April 2019

Welcome to recent cases in labour law — April 2019:

• The Federal Court of Australia (Colvin J) has granted a trade union’s application for injunctive relief under section 545 of the Fair Work Act 2009 (Cth), preventing an employer from dismissing, altering the working hours of, or transferring a number of employees, to allow for the occurrence of redundancy consultations to occur in accordance with the parties’ Enterprise Agreements. In doing so, the Court observed that the right to a consultation process is “not just informational”, but rather “involves active engagement with the employer considering matters raised by employees concerning the change” (at [26]-[28]). (Shop, Distributive and Allied Employees’ Association v Noni B Limited [2019] FCA 557)
• The Federal Court of Australia (Besanko J) has granted an statutory injunction under section 46PP of the Australian Human Rights Commission Act 1986 (Cth), restraining a reverend from terminating the license, withholding entitlements, or terminating the tenure of a priest. Considering the character of the section 46PP statutory injunction, the Court relevantly observed that section 46PP(6) prohibited the Court from imposing the usual undertaking as to damages (at [28]) and appeared to express doubt that the issue of the adequacy of damages need be considered when granting such a statutory injunction (at [41] and [43]). (Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584)
• The Federal Court of Australia (Robertson J) has granted a trade union’s application for injunctive relief under section 545 of the Fair Work Act 2009 (Cth), requiring an employer to reinstate a trade unionist whom it had dismissed seven days after the trade unionist had been appointed the workplace Health and Safety Representative. (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2019] FCA 561)
• The Federal Circuit Court of Australia (Judge Nicholls) has awarded a legal secretary nil compensation, notwithstanding the Court finding earlier that her former employer, a barristers’ chambers in Sydney, had breached redundancy consultation provisions of the Legal Services Award. In its decision on compensation, the Court relevantly held that no economic loss or non-economic damages flowed from the employer’s breach of the Award (at [151] and [182]). (Saad v Ada Evans Chambers Pty Ltd & Anor [2019] FCCA 1101)