Recent cases in labour law — August 2019

Welcome to recent cases in labour law — August 2019:

• The Full Court of the Federal Court of Australia (Bromberg and Rangiah JJ; O’Callaghan J dissenting) has found that, for the purposes of section 96 of the Fair Work Act 2009 (Cth), a “day” of paid personal personal (also known as “sick leave”) refers to a day of work ordinarily performed by an employee, rather than a notional day of 7.6 hours. In doing so, the Court, among other things, considered the industrial and common law history of the antecedents to the present legislative entitlement to paid personal leave (at [141]-[145]) and the role that paid personal leave currently plays as a form statutory income protection (at [148] and [161]). (Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138) [Ed’s note: in August 2020, this decision was overturned by the High Court Of Australia in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29]
• The Federal Court of Australia (O’Callaghan J) has dismissed an interlocutory application seeking the production of a transcript of a conversation, on the basis that the transcript sought had not been “mentioned” in the other party’s pleading pursuant to Rule 20.31 of the Federal Court Rules 2011 (Cth) (at [13]-[23]). (Construction Forestry Maritime Mining and Energy Union v McConnell Dowell Constructors (Aust) Pty Ltd [2019] FCA 1376)
• The Supreme Court of New South Wales Supreme Court (Hammerschlag J) has usefully summarised the principles, which have arisen from the recent authorities, regarding whether or not an employer may be held vicariously liable for intentional or criminal wrongdoing by an employee (at [236]-[256]). (John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd [2019] NSWSC 1006)
• The Federal Circuit Court of Australia (Judge Burchardt) has held that an employer cannot set off payment of higher base wages against its failure to pay an employee their annual leave entitlement (at [16]-[21]), observing that “ payment of wages for work done, whether by way of ordinary hours or overtime, is a radically different matter to annual leave” and that “[a]nnual leave is not related with work done as such but rather with length of employment” (at [20]). (Fair Work Ombudsman v Lindsay F. Nelson Manufacturing Pty Limited & Anor [2019] FCCA 2151)