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In the realm of workplace justice, few stories capture the essence of integrity and perseverance as profoundly as the recent triumph of Clinton Purdie. This case, brimming with dramatic twists and turns, serves as a powerful reminder of the importance of fair treatment and the unwavering pursuit of truth. Join us as we delve into the riveting tale of Clinton Purdie's fight against the dishonest and unscrupulous practices of his employer, Goodview Stud Pty Ltd, trading as A List Stud. Our story begins with Clinton Purdie, a diligent and devoted clerical and administrative officer at A List Stud. Clinton commenced his employment on the 13th of February, 2020, and quickly established himself as a reliable and hardworking employee. His role encompassed a range of administrative duties, from managing correspondence to organising schedules, all performed with a steadfast commitment to excellence. Yet, despite his dedication, Clinton found himself facing an unjust and sudden dismissal on the 3rd of April, 2024. The events leading to Clinton's dismissal unfolded in a manner akin to a suspenseful drama. On the evening of the 28th of March, 2024, Clinton anticipated the arrival of several horses and, in preparation, left the front gates of the stud open. Later that night, he noticed unusual activity near the gates. Alarmed by the potential threat, Clinton promptly called the police to ensure the property’s security. Enter Mr. Paramjit Singh, a newly appointed security manager, who arrived on the scene with a letter from Mr. Siu Yee (Chris) Lee, the company's Director and Chief Executive Officer. This letter, laden with ominous overtones, stated that urgent maintenance works were to commence on the 1st of April, 2024, and mandated that Clinton vacate his accommodation and relocate to the Executive Highway Hotel in Benalla. The following day, Clinton left the property to run errands. Upon his return, he was confronted with padlocked gates, effectively barring his entry. Determined to access his residence and comply with the directive to vacate, Clinton used a key from the staff room. It was at this juncture that Mr. Singh, noticing the open gate, confronted Clinton, later accusing him of theft and neglect—an accusation that would precipitate Clinton's immediate dismissal. As the case proceeded to the Fair Work Commission, the hearing before Deputy President Millhouse on the 21st of June, 2024, revealed the depths of the employer's deceit. Clinton, representing himself with admirable resolve, presented evidence and testimony, bolstered by the support of Codie O'Neill, the former Stud Manager. In stark contrast, the respondent, represented by Mr. Lee, offered a narrative fraught with contradictions and falsehoods. The respondent's claims bordered on the absurd. Mr. Singh’s testimony was a tapestry of inconsistencies, while Mr. Lee’s assertions were nothing short of speculative fiction. The baseless allegation that Clinton intended to release the horses by stealing the gate key was both malicious and unfounded. Equally ludicrous was the claim that Clinton neglected to provide water to the horses—a duty entirely outside the scope of his clerical and administrative role. Deputy President Millhouse, in a scathing assessment, found Clinton's evidence to be not only consistent but also compelling. It became unequivocally clear that Clinton had used the key to access his residence solely to comply with the employer’s directive to vacate. Furthermore, the accusation of neglecting the horses was thoroughly discredited, underscoring the employer’s desperate attempt to fabricate grounds for dismissal. The decision was resounding: Clinton Purdie’s dismissal was harsh, unjust, and unreasonable. The employer’s actions were a glaring example of unethical behaviour and deceit. This outcome had profound personal and economic repercussions for Clinton, who not only lost his job but also his home in one fell swoop. This victory is more than a personal triumph for Clinton; it is a testament to the principles of justice and fairness in the workplace. It serves as a potent reminder that employers must be held accountable for their actions and that dishonesty has no place in employment practices. As we celebrate this victory, it is essential to reflect on the broader implications of this case. It calls into question the integrity of those who wield power in the workplace and highlights the necessity for vigilance and accountability. Employers must recognise that their actions have real and lasting impacts on the lives of their employees. Deceptive practices, like those exhibited by Goodview Stud Pty Ltd, undermine the very foundation of trust and respect that should underpin any employment relationship. The next chapter in Clinton's journey will see the Fair Work Commission determining the appropriate remedy for his unfair dismissal. This forthcoming session promises to further reinforce the principles of justice that have been so decisively upheld in this case. At 1800ADVOCATES, we take immense pride in standing by Clinton Purdie, ensuring that his rights were protected and justice was served. This case is a beacon of hope for all who face unjust and dishonest practices in their employment. It is a clarion call for fairness, integrity, and accountability in the workplace. Thank you for joining us in celebrating this significant victory. We remain steadfast in our commitment to advocating for the rights of individuals and holding employers to account. Together, we can continue to champion the cause of justice and ensure that fairness prevails in every corner of the workplace. Read the full decision Listen Now: "The Story of Clinton Purdie and the Unmasking of Employer Deceit"

Jurisdiction: Fair Work Australia Date: 1 July 2010 Presiding Member: Commissioner Stanton Parties: - Applicant: Phillip Rollason - Respondent: Austar Coal Mine Pty Limited Unfair dismissal is a critical issue in employment law, and the case of Rollason v Austar Coal Mine Pty Limited [2010] FWA 4863 provides significant insights into how Fair Work Australia assesses claims of unfair dismissal. Phillip Rollason was employed by Austar Coal Mine Pty Limited (Austar) as a coal mine worker. His employment was terminated due to alleged misconduct, specifically a breach of safety protocols. Rollason contested the dismissal, arguing that it was an unfair dismissal, harsh, unjust, and unreasonable. The primary question before Fair Work Australia was whether the termination of Phillip Rollason constituted an unfair dismissal under the Fair Work Act 2009. Applicant's Argument: Rollason contended that his dismissal was a disproportionate response to the alleged misconduct. He argued that his actions did not amount to serious misconduct and that his employment record, marked by dedication and good performance, should have been considered. He claimed that the dismissal was an unfair dismissal due to the excessive severity of the penalty. Respondent's Argument: Austar defended its decision, asserting that Rollason’s actions represented a serious breach of safety protocols, which justified his summary dismissal. They emphasised the importance of maintaining strict safety standards in the mining industry and argued that this justified the termination. Permission Granted for Representation: During the proceedings, Commissioner Stanton addressed the matter of representation. Permission for legal representation was granted, taking into account the complexity of the case and the principle of fairness. The issues involved were intricate, relating to the interpretation of safety regulations and employment law, making professional legal assistance necessary to ensure the proceedings were conducted fairly. Decision: Commissioner Stanton ruled in favour of Phillip Rollason, finding that his dismissal was indeed an unfair dismissal. The decision hinged on several key points: 1. Proportionality of Misconduct: While acknowledging that Rollason had breached safety protocols, Commissioner Stanton concluded that the actions did not amount to serious misconduct justifying summary dismissal. The response was deemed excessive, and the dismissal was thus an unfair dismissal. 2. Employment Record: Rollason’s previous good employment history was considered. The Commissioner highlighted that an employee’s overall work record is essential in determining whether a dismissal is fair. In this case, the dismissal was found to be an unfair dismissal considering Rollason’s past performance and dedication. 3. Mitigating Circumstances: The Commissioner identified mitigating factors that Austar should have considered before deciding on termination. These factors suggested that alternative disciplinary measures could have been more appropriate, rendering the summary dismissal as an unfair dismissal. 4. Procedural Fairness: The decision also focused on procedural fairness. Rollason was not given a sufficient opportunity to respond to the allegations against him. The lack of a fair process contributed to the finding of unfair dismissal. Outcome: Phillip Rollason was reinstated to his former position at Austar Coal Mine Pty Limited. This outcome underscores the necessity for employers to consider the proportionality of their response to employee misconduct, the employee's work history, and procedural fairness to avoid instances of unfair dismissal. The case of Rollason v Austar Coal Mine Pty Limited is a landmark example of how claims of unfair dismissal are evaluated. Employers must ensure that their actions are not disproportionate to the misconduct and that they maintain procedural fairness to prevent claims of unfair dismissal. Employees should be aware of their rights and the importance of their employment history in defending against unfair dismissal. At 1800ADVOCATES, we specialise in representing individuals in unfair dismissal cases. If you believe you have been unfairly dismissed, contact us for expert advice and representation. We are committed to ensuring that your rights are protected and that you receive fair treatment in the workplace. Understanding the intricacies of unfair dismissal claims is crucial for both employers and employees, and cases like Rollason v Austar Coal Mine Pty Limited provide valuable insights into the application of employment law. Listen to our audio narration of this case

Recent developments have seen Rex Airlines' administrators retrenching nearly 600 employees, placing them as priority creditors. This situation has highlighted the challenges many workers face when a company is unable to immediately repay entitlements, including payments in lieu of notice. For these workers, understanding their rights under the Fair Work Act 2009 (Cth) and the Fair Entitlements Guarantee (FEG) Scheme is crucial. Immediate Impact on Rex Employees The administrators have communicated that the company's financial position does not allow for the immediate repayment of entitlements. While Rex's regional service will continue, its capital city flights have ceased. A letter from the administrators reassured continuing employees that their terms and conditions would remain unchanged, and a preliminary calculation of entitlements will be provided soon. However, for the 594 redundant employees, the reality is stark. They have become priority creditors and must wait for their entitlements to be resolved either through a deed of company arrangement or the FEG Scheme if the company is wound up. Understanding the Fair Entitlements Guarantee (FEG) Scheme The FEG Scheme provides a safety net for employees who lose their jobs due to their employer’s liquidation or bankruptcy. It covers up to 13 weeks’ wages, annual leave, long service leave, payment in lieu of notice (up to five weeks), and redundancy pay (up to four weeks per year of service). However, it does not cover unpaid superannuation, which employees must pursue as creditors. The Department of Employment and Workplace Relations (DEWR) has noted an increase in FEG applications due to rising corporate insolvencies. Consequently, processing times have extended beyond the average of 14 weeks, with 2023-24 seeing an average processing time of 17.3 weeks. The Role of the Fair Work Commission The Fair Work Commission (FWC) is the body responsible for dealing with disputes arising under the Fair Work Act. It assists in resolving general protections disputes through conciliation, conferences, and hearings. The FWC can also issue orders to enforce compliance with the Act. Conciliation and Hearings: In general protections disputes, conciliation is the first step. If conciliation fails, the matter may proceed to a formal hearing where the Commission will examine evidence, consider submissions, and make a legally binding decision. What Can Retrenched Rex Workers Do? For the retrenched Rex workers, the immediate steps involve understanding and applying for their entitlements under the FEG Scheme. Given the extended processing times, it is advisable to apply promptly and use the DEWR’s online portal for efficiency. Additionally, retrenched workers should be aware of their rights under the Fair Work Act and consider seeking professional advice if they believe their termination involved a breach of these rights. The Fair Work Commission’s General Protections Benchbook can be a valuable resource in understanding these protections and preparing for any potential claims. Conclusion The situation faced by Rex Airlines' retrenched workers is a reminder of the importance of understanding workplace rights and entitlements. The Fair Work Act provides significant protections, and the FEG Scheme offers a crucial safety net. However, the process can be lengthy and complex, making it essential for affected workers to stay informed and proactive in securing their entitlements. At 1800ADVOCATES, we are committed to assisting employees in navigating these challenges and ensuring their rights are upheld. Need to know your rights in an employment or human rights matter? Call us for a FREE consultation today. Play Audio File

In a recent development, the Fair Work Commission (FWC) has recommended that Woolworths take all necessary actions to ensure it pays affected distribution centre workers their owed backpay by the end of this month. This decision comes after repeated delays by the supermarket giant in addressing underpayments to its employees. The issue traces back to a calculation error by Woolworths, which underpaid distribution workers entitled to an exemption rate from February 2017 to November last year. The company mistakenly calculated the hourly rate for exempt workers by dividing the weekly rate by 40 hours instead of the correct 38 hours. Woolworths identified and corrected this error in November of the previous year, ensuring proper payments since then. However, despite acknowledging the mistake, Woolworths has lagged in compensating the workers for the underpayments. In response to a query from the Shop, Distributive and Allied Employees Association (SDA) last year, Woolworths projected that it would complete the backpay process, including interest and superannuation payments, between April and June of this year. Frustrated by the delays, the SDA filed a dispute with the FWC in May, citing underpayment under section 739 of the Fair Work Act. This dispute involved members covered by the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021. Woolworths informed the Commission in early June that it intended to address the underpayments for the Brisbane Regional Distribution Centre workers first, among its 20 distribution centres. Woolworths indicated it could commence backpayments from August 12. However, Commissioner Jennifer Hunt warned that if Woolworths failed to act promptly, she might issue a formal recommendation. By late July, Woolworths and the SDA agreed on a deadline of the end of August for the backpayments, leading the SDA to request a formal recommendation from the FWC to reinforce this commitment. Commissioner Hunt issued a recommendation on August 2, advising Woolworths to ensure the payments to affected members at the Brisbane Regional Distribution Centre by August 31. She noted the prolonged delays by Woolworths and emphasised the need for prioritising the payments to the affected employees. “Whilst the remediation project is, no doubt, a large one, employees ought not be left waiting any longer for money that is owed to them,” Commissioner Hunt stated. “If Woolworths needs to prioritise the payment to affected members employed at the BRDC on account of this dispute being before the Commission, it ought to do so.” A Woolworths Group spokesperson confirmed that the company expects to complete the backpayments, including interest, superannuation, and any other entitlements, by the end of the month. The spokesperson explained that Woolworths discovered the underpayments during a comprehensive payroll review that began in 2019. However, the current dispute specifically concerns the underpayments at the Brisbane distribution centre. An SDA representative disclosed that the underpayments affected 40 to 50 employees at the Brisbane distribution centre, with amounts owed ranging from a few hundred dollars to over $10,000, cumulatively exceeding $100,000. SDA Queensland branch secretary Justin Power expressed disappointment over the lengthy resolution process but acknowledged Woolworths' commitment to rectifying the issue with interest. “We are disappointed with the amount of time it has taken to get this backpay issue resolved, but appreciate that at no stage did the company argue against making good backpay with interest,” Power said. “The important thing is that our members will get the benefit of this and get paid what they deserve.” This situation underscores the critical importance of accurate payroll calculations and timely rectification of errors to ensure that employees receive their rightful entitlements without unnecessary delays. For more information or to discuss any employment or human rights matters, please call for a FREE consultation on 1800 238 622. Play Audio File

The Fair Work Commission (FWC) has recently mandated the United Workers Union (UWU) to submit video and audio recordings used in the dismissal of a senior employee for alleged drug use. This decision highlights the complexities of privacy and employment laws across Australia. Background of the Case In May, the UWU dismissed their political coordinator for conduct involving alleged drug use at the Brisbane office in October of the previous year. The union supported their decision with CCTV footage, presenting both video and audio recordings during the disciplinary proceedings. In preliminary unfair dismissal hearings, the political coordinator requested the Commission to order the UWU to produce policy documents related to drug testing and the circumstances requiring an independent medical examination. Additionally, he sought video and audio recordings from October 2 to 6 and documents referring to him post-incident. Union's Objections and Commission's Findings The union's legal representative argued against the production of audio recordings, claiming they were "not sufficiently relevant" and stating that the political coordinator had already admitted to the conduct. Despite these objections, Vice President Mark Gibian found the audio recordings "at least apparently relevant." He asserted that these recordings could help assess the severity of the conduct and any mitigating circumstances. Vice President Gibian also noted the political coordinator's intention to use the union's presentation of the recordings as evidence of harshness in the disciplinary process and to illustrate his poor health, which he claimed affected his memory. Privacy Concerns and Legal Implications The political coordinator raised concerns about whether the recordings breached Section 43 of the Queensland Invasion of Privacy Act 1971, which prohibits using devices to overhear, record, monitor, or listen to private conversations. However, Vice President Gibian ruled that this did not justify a production order at this stage. The UWU also objected on the grounds that producing the recordings could violate Section 44 of the Invasion of Privacy Act, which prohibits communicating or publishing a private conversation procured via a listening device. Vice President Gibian acknowledged these concerns but pointed out that the lack of evidence regarding the recording circumstances made it difficult to assess a breach. The Commission's Decision Using the Fair Work Act's Section 590(2)(c) powers, Vice President Gibian ordered the UWU to produce the requested video and audio recordings, along with the relevant policies and documents. He emphasised that the Commission would not review the recordings unless a party proposed to introduce them into evidence, at which point submissions on their admissibility could be made. State and Territory Privacy Laws This case brings to light the differing privacy laws across Australian states and territories. For example: - Victoria: The Surveillance Devices Act 1999 regulates the use of listening and optical surveillance devices. - New South Wales: The Surveillance Devices Act 2007 governs the use of listening, tracking, and optical surveillance devices. - Western Australia: The Surveillance Devices Act 1998 controls the use of listening devices, optical surveillance devices, and tracking devices. - South Australia: The Listening and Surveillance Devices Act 1972 regulates the use of listening devices and surveillance devices. Employers must be cautious in handling recordings to ensure compliance with these varying legal requirements. The decision in this case underscores the importance of understanding and adhering to both state and federal laws regarding surveillance and privacy in the workplace. Conclusion The FWC's order for the UWU to produce potentially unlawful audio recordings underscores the significant legal and ethical considerations involved in workplace surveillance and privacy. As employment and human rights advocates, 1800ADVOCATES emphasises the need for employers to navigate these complexities carefully, ensuring compliance with all relevant laws to protect the rights and privacy of employees. For further information or assistance with employment-related legal matters, please contact us for a FREE consultation.

In a significant move to address allegations of corruption and criminality within the CFMEU's construction and general division branches, Workplace Relations Minister Tony Burke has announced support for a Federal Court application by Fair Work Commission (FWC) general manager, Murray Furlong. The application seeks to place these branches under administration, underscoring the government's commitment to maintaining integrity in the construction industry. Minister Burke emphasised the government's determination to see this action through, acknowledging the legal complexities involved. He stated that if the application is challenged and unresolved before Parliament resumes on August 12, the government will introduce specific legislation to ensure the successful appointment of an administrator. Broad Scope of Administration Burke clarified that Furlong's authority to appoint administrators will not be confined to the Victorian branch of the CFMEU's construction and general division. This comes in the wake of the resignation of Victorian State secretary John Setka. The scope includes other branches facing similar accusations, indicating a comprehensive approach to tackling corruption within the union. Actions in New South Wales In New South Wales, the Minns Labor Government has taken decisive action by suspending the CFMEU from the state Labor Party. Additionally, they have requested the party's general secretary to halt any donations from the union. This follows serious bribery allegations against NSW construction and general division secretary Darren Greenfield. Protecting Union Members Minister Burke reiterated that the primary role of any union is to safeguard its members. He condemned the reported behaviour within the CFMEU's construction division, labelling it as "abhorrent" and "intolerable". Burke assured that the government's actions aim to protect members and ensure that their terms and conditions of employment are not jeopardised by the union's misconduct. Government's Regulatory Measures To further strengthen oversight, Burke has directed the Fair Work Ombudsman to conduct a targeted review of all enterprise agreements made by the Victorian branch of the CFMEU. This review focuses on Victoria's Big Build infrastructure projects, aiming to identify and address any coercive behaviour. The government also intends to use its procurement powers to ensure that enterprise agreements on government-funded projects are genuinely agreed upon and free from coercion and intimidation. This move underscores the government's commitment to fostering fair and transparent workplace practices. Request for Federal Investigation In response to recent reports by Nine newspapers and the 60 Minutes program, Burke has requested the Australian Federal Police (AFP) Commissioner to investigate the allegations. He urged the AFP to collaborate with State police to thoroughly investigate and prosecute any criminal activities. Deregistration Not the Solution While discussing potential sanctions, Burke highlighted that deregistration is not a viable solution under current laws. He noted that deregistering the union could allow it to operate without the regulatory oversight applicable to registered organisations. This could exacerbate the issues rather than resolve them. Historical Context: BLF and CFMEU The Builders Labourers Federation (BLF), a precursor to the CFMEU, was a prominent union in the construction industry during the 20th century. The BLF was known for its militant activism and significant influence on construction sites. However, the union faced deregistration in the 1980s due to allegations of corruption and unlawful activities. Deregistration was then the strongest sanction available to address such issues within a registered organisation. The BLF's deregistration led to the establishment of the Construction, Forestry, Mining and Energy Union (CFMEU), which absorbed many former BLF members and continued its legacy in the construction sector. Over the years, the CFMEU has grown into one of Australia's most powerful unions, representing workers across various industries. However, the CFMEU has also faced its share of controversies, echoing the issues that plagued its predecessor. Labor Party's Response Addressing the CFMEU's affiliation with the Labor Party, Burke indicated that the ALP national executive is expected to make strong decisions. He refrained from providing specifics but acknowledged the need for a measured response, considering the ALP national president, Wayne Swan, also chairs CBUS, the construction industry superannuation fund with CFMEU representatives. Conclusion The government's proactive measures against the CFMEU's construction and general division branches demonstrate a robust commitment to eradicating corruption and criminality in the construction industry. These actions aim to protect union members, ensure fair workplace practices, and uphold the integrity of Australia's construction sector. The historical context of the BLF and CFMEU underscores the ongoing challenges and the need for stringent oversight to maintain the trust and welfare of union members.

Grooming is a manipulative process employed by perpetrators of sexual harassment and abuse to gain the trust of potential victims and prepare them for exploitation. It often involves a series of calculated actions that gradually build a relationship with the target, creating an environment where the victim feels comfortable, dependent, and less likely to report the inappropriate behaviour. Key Characteristics of Grooming 1. Building Trust: The perpetrator may present themselves as a trustworthy and caring individual. They often invest significant time and effort into creating a bond with the victim, sometimes posing as a mentor, friend, or confidant. 2. Isolation: The perpetrator may try to isolate the victim from their support networks, such as friends, family, or colleagues. This isolation can make the victim more reliant on the perpetrator and less likely to seek help or disclose the harassment. 3. Gradual Desensitisation: Grooming often involves a gradual escalation of inappropriate behaviour. This can start with seemingly innocent actions, such as giving gifts, offering compliments, or engaging in non-sexual physical contact. Over time, these actions can become more explicit and sexual in nature. 4. Testing Boundaries: The perpetrator may test the victim's boundaries to see how they respond to certain behaviours. This can involve making inappropriate comments or jokes to gauge the victim's reaction. If the victim does not resist or report the behaviour, the perpetrator may escalate their actions. 5. Manipulation and Control: Groomers often use psychological manipulation to control their victims. This can include making the victim feel special, needed, or loved, while simultaneously instilling fear, shame, or guilt to prevent them from speaking out. 6. Exploitation: Once the perpetrator has established control over the victim, they may begin to exploit them sexually. This can involve coercion, threats, or outright abuse. The victim may feel trapped, powerless, or afraid to report the abuse due to the manipulative tactics used by the perpetrator. Recognising Grooming in the Workplace In the context of employment, grooming can be particularly insidious because it can be masked as mentorship or professional guidance. Employees may feel flattered by the attention and opportunities provided by the perpetrator, making it difficult to recognise the inappropriate nature of the behaviour until it escalates. Responding to Grooming 1. Awareness and Education: Organisations should educate employees about the signs of grooming and sexual harassment. Awareness can empower individuals to recognise and report inappropriate behaviour early on. 2. Clear Policies and Reporting Mechanisms: Having clear policies against sexual harassment and providing confidential reporting mechanisms can help victims come forward without fear of retaliation. 3. Support Systems: Offering support through counselling services, employee assistance programs, and legal advice can assist victims in navigating the complexities of grooming and harassment. 4. Prompt Action: Employers should take immediate and appropriate action when grooming or harassment is reported. This can include conducting thorough investigations, taking disciplinary measures against perpetrators, and ensuring the safety and well-being of the victim. By understanding the dynamics of grooming, organisations and individuals can better identify, prevent, and respond to this form of sexual harassment, creating safer and more respectful workplaces.

A recent Fair Work Commission (FWC) decision highlights the complexities surrounding representation rights in employment disputes. PHI (International) Australia Pty Ltd, trading as HNZ Australia, sought to delay an underpayments case by requesting legal representation, which the FWC ultimately denied. Background of the Case PHI aimed to secure representation ahead of a hearing regarding a jurisdictional objection to a casual entitlements dispute initiated by three pilots supported by the Australian Federation of Air Pilots (AFAP). The employer argued that the FWC lacked jurisdiction as the pilots had not adhered to the dispute resolution procedures outlined in the 2017 Karratha Helicopter Pilots MPT Operations Agreement. Representation Rights and Dispute Resolution Clause 22.1.4 of the agreement specifies that a person "initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a union representative or company association in relation to the dispute." This clause does not explicitly extend representation rights to other parties involved in the dispute. Initially, Deputy President Peter O'Keeffe was inclined to grant PHI's representation request, acknowledging AFAP's opposition. However, after further deliberation, Deputy President O'Keeffe denied PHI's request, citing the specific terms of the dispute resolution procedure and previous case findings as the basis for his decision. Appeal and Balance of Convenience PHI argued that Deputy President O'Keeffe erred in law by not granting representation rights under section 596 of the Fair Work Act. Vice President Mark Gibian acknowledged PHI's "sufficiently arguable case on appeal" but emphasised that the clause's primary focus is to ensure the pilot's right to representation, not to exclude other parties from being represented. Despite this, Vice President Gibian noted that the broader question of balance of convenience did not favour granting a stay of Deputy President O'Keeffe's decision. The stay would not automatically allow PHI representation but would only enable PHI to reapply for such permission. Procedural Objections and Industry Impact The ruling underscores the procedural intricacies and the importance of adhering to specific terms outlined in workplace agreements. An AFAP spokesperson remarked on the increasing procedural objections from aviation industry employers, suggesting these tactics serve to delay dispute resolution. This case, PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Mr Martin Nash & Mr Paul Micheletti and Another [2024] FWC 1735, illustrates the FWC's approach to balancing procedural fairness and the specific terms of employment agreements in determining representation rights. Employers and employees alike must carefully consider these provisions to navigate disputes effectively within the framework of the Fair Work Act. For more insights on employment disputes and representation rights, visit 1800ADVOCATES for expert guidance and support. This blog post is an interpretation of recent FWC proceedings and does not constitute legal advice. For specific legal concerns, please consult a qualified professional.

The High Court is currently deliberating a case that could significantly redefine employers' duty of care in relation to the disciplining and dismissal of workers. This case arises from the appeal by a former consultant for Vision Australia, who is challenging a Victorian Supreme Court of Appeal judgment concerning his dismissal and subsequent psychiatric injury. Background of the Case The consultant, who worked in adaptive technology for Vision Australia, developed a major depressive disorder after his dismissal in 2015. His termination followed an incident with a hotel owner during a work trip. Initially, the Supreme Court found no breach of duty of care by Vision Australia but awarded $1.44 million in damages for lost earnings and pain and suffering due to the organisation's failure to adhere to its own disciplinary processes. Challenging Historical Precedents The legal team for the consultant, led by Perry Herzfeld SC, Eitan Makowski, and Stephen Puttick of Eleven Wentworth, is challenging the applicability of the 1909 House of Lords' Addis ruling. This ruling has historically prevented Australian courts from awarding damages for psychiatric injury resulting from wrongful dismissal. Vision Australia contends that overturning this precedent would disrupt contractual certainty and business operations. However, the consultant's lawyers argue that the Addis ruling should not preclude the recovery of damages for psychiatric injury caused by wrongful dismissal. They emphasise that the case is as much about contractual breach leading to psychiatric injury as it is about compensation for the manner of dismissal. Legal and Societal Implications The consultant's legal team asserts that the correct approach should be based on ordinary contractual principles, as seen in the High Court's 1993 decision in Baltic Shipping Co v Dillon. They argue that the law must evolve in line with changing societal expectations, a concept supported by cases such as Johnson v Unisys. The lawyers also rebut Vision Australia's claim that this appeal only concerns compensation for the manner of dismissal, stating that it also addresses the broader issue of recovering damages for psychiatric injury due to contractual breach. Modernising the Definition of Work A key point of contention is the definition of a 'system of work.' Vision Australia has argued for a narrow definition, limited to the performance of workplace tasks. In contrast, the consultant's legal team argues that this narrow approach is outdated and fails to reflect the realities of the modern workplace. They contend that employers' duty to provide a safe system of work should logically extend to disciplinary and termination processes. Limiting this duty is seen as arbitrary and incoherent, neglecting the comprehensive nature of workplace health and safety. Potential Outcomes and Impact If the High Court decides to overturn the Addis precedent, it could pave the way for employees to seek damages for psychiatric injuries resulting from wrongful dismissals. This would represent a significant shift in the legal landscape, aligning with modern expectations of workplace safety and mental health considerations. Employers may need to reconsider their contractual terms and disciplinary procedures to mitigate potential liabilities. While some argue this could introduce uncertainty, the consultant's legal team maintains that clear, express terms in contracts can address these concerns. Conclusion The High Court's decision in this case has the potential to reshape the understanding of employers' duty of care in Australia. By expanding the definition of a safe system of work to include disciplinary and termination processes, the court could enhance protections for workers' mental health, reflecting contemporary workplace standards. As this case progresses, it will be crucial for employers and employees alike to stay informed about the implications for employment contracts and workplace practices. Stay tuned to 1800ADVOCATES for further updates on this landmark case and its impact on employment law in Australia.

The ACTU is calling for flexible work arrangement requests to extend to reproductive health issues, ahead of consideration of the issue at next week's triennial Congress in Adelaide. In its submission this month to the Senate inquiry into issues related to menopause and perimenopause, the ACTU is seeking the extension of the s65 right to request flexible work to include workers who are experiencing reproductive "symptoms or concerns". It says a FSU survey identified the crucial role of workplace supports, with access to flexible work and WFH the most important (see Related Article). The ACTU also wants reproductive health designated as a protected attribute in anti-discrimination laws, including the anti-bias provisions in the Fair Work Act. It says many workers "are reluctant to speak about their experience experience of menstruation, menopause and perimenopause in the workplace". It says this is "due to stigma, embarrassment, the taboo nature of these issues, the lack of support, understanding and respect from employers, and fear of the consequences of doing so (for example being perceived negatively, having their abilities or commitment to work questioned, fear of encouraging further sexism or ageism in the workplace, or being otherwise discriminated against)". The ACTU says the survey results also highlighted the challenges workers face in accessing "reasonable adjustments" at work. Adding reproductive health as a "standalone protected attribute" would also help to achieve the "cultural shift" required to ensure workers get the support and workplace accommodations they require. The submission says that menopause and perimenopause "have historically been regarded as issues that solely affect women" but it "recognises and affirms that these physiological transitions are also experienced by gender diverse workers, including trans men, non-binary and intersex workers". The ACTU also recommends the development of a reproductive health regulation and code of practice under model WHS laws. The submission says "numerous" affiliates have pursued menstrual, menopause and reproductive leave or entitlement claims in bargaining. Leave entitlements have ranged from five to 12 days. The FSU has won 12 days paid menopause and menstrual leave in the agreement for the CBUS super fund and 12 days paid menopause leave in the Police Bank deal. The submission also notes that CPSU Victoria won five days of reproductive health leave in the Victorian Public Sector Agreement (see Related Article). The ACTU submission comes ahead of its triennial Congress, at which the Queensland Council of Unions is planning to bring on debate about reproductive health rights (see Related Article), in the wake of its "It's for Every Body" campaign. The QCU in its March submission to the inquiry called for a similar flexible work request provision to that sought by the ACTU, along with 10 days non-cumulative reproductive health leave in the NES and Queensland Employment Standards (it recently won a 10-day entitlement in the State public sector - see Related Article). ACTU submission to the Senate Community Affairs References Committee inquiry into issues related to menopause and perimenopause, May 10, 2024

In a landmark decision, major mining companies embroiled in a multi-employer bargaining test case have successfully obtained access to a comprehensive summary of legal advice given to Professionals Australia. This development comes after the union inadvertently undermined its claim to privilege by broadly sharing a PowerPoint slide that included the legal advice. Background of the Case The dispute involves several black coal mining employers—Peabody Energy, Glencore, Whitehaven, Delta Coal, and Ulan Coal Mines Ltd—who are resisting a union bid for a single interest employer authorisation under s248 of the Fair Work Act. The employers sought access to unredacted communications to bolster their case against the union's application. The Decision Deputy Presidents Peter Hampton and Judith Wright, alongside Commissioner Alana Matheson, ruled that the union's extensive distribution of the PowerPoint slide effectively waived its privilege. The slide, developed by a senior legal officer within the Collieries Staff division of Professionals Australia, was intended to convey external legal advice to union members during a meeting. The bench highlighted that the union did not take significant steps to restrict access to the slide or to ensure recipients understood its privileged status. As a result, the slide was shared broadly among union members, thereby compromising its privileged nature. Limited Access to Other Documents While the mining companies gained access to the unredacted PowerPoint slide, their request for an unredacted email containing similar legal advice was denied. The email, sent by a union organiser to a single delegate for internal decision-making, was deemed not to play a meaningful role in informing the broader employee base. Implications for the Mining Industry This ruling is a significant victory for the mining companies, as it strengthens their position against the union’s push for a single interest employer authorisation. Peabody Energy had previously expressed serious concerns about the potential implications of such an application on the industry, fearing that it would force different mines operated by competitors into a single industrial agreement. Union's Stance The Collieries Staff and Officials Association, representing over 200 deputies, shift engineers, control room officers, and undermanagers, has emphasised the importance of its application in improving and standardising conditions across the mining sector. The union is advocating for several benefits, including the payout of personal leave upon termination and redundancy pay at three weeks per year, among others. Looking Ahead This case highlights the delicate balance between maintaining legal privilege and the need for transparency in union communications. The mining companies' victory underscores the importance of careful management of privileged information in legal disputes, particularly in the complex landscape of industrial relations. As the case progresses, it will be crucial to monitor how these developments impact the broader mining industry and the future of multi-employer bargaining legislation. This case, formally cited as Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd [2024] FWCFB 266 (28 May 2024), sets a significant precedent in the ongoing dialogue between unions and employers in Australia.

In a landmark ruling, Foot & Thai Massage Pty Ltd (FTM) and its director have been ordered to pay over $2 million in fines and compensation. This follows egregious breaches of the Fair Work Act, which included underpaying temporary visa workers, enforcing a "cashback" scheme, and making threats to kill workers' families if they reported the abuses. The Case Overview The ruling, handed down by Justice Anna Katzmann, highlighted severe violations of workplace laws. The 2021 judgment found that FTM had engaged in multiple breaches, including threatening to deport the massage therapists to the Philippines and have their families killed. These actions contravened protections under the Fair Work Act against adverse action and coercion, specifically sections 340, 351, and 343. Exploitation Rooted in Vulnerability The court accepted that FTM exploited the workers' race and national extraction, believing the Filipina therapists would endure substandard conditions due to their financial responsibilities back home. The company also failed to pay the minimum hourly rates, penalty, and overtime rates as required by the Health Award. Instead, it forced six workers to refund $800 per fortnight during tough business periods, labelling these unlawful deductions as "staff loans." FTM's practices spanned over three to four years, during which the therapists were collectively short-changed nearly $850,000. The company lured them to Australia under false promises of fair work conditions, only to breach these terms systematically. A Deliberate Deception Justice Katzmann noted that FTM's director admitted to deceiving the Department of Immigration, with no genuine intent to comply with the employment conditions for sponsoring workers on subclass 457 visas. The judge condemned the director's economic decision to ignore the Health Award's requirements, which significantly harmed the therapists. Significant Emotional and Financial Harm The therapists suffered profound emotional distress due to the constant fear of retribution if they spoke out. This distress was exacerbated by their dependence on their jobs for their families' financial support back in the Philippines. The court's ruling acknowledged this ongoing suffering and ordered FTM and its director to pay substantial compensation. The penalties included $1,166,000 plus interest to the Fair Work Ombudsman (FWO) to compensate the workers, $778,100 in fines against FTM, and $150,140 against the director. A second supervisor involved in the breaches was fined $38,700. No Remorse, No Lessons Learned Justice Katzmann underscored the severity and intentional nature of FTM's conduct. Neither the director nor the supervisor showed any remorse or willingness to change, necessitating strong penalties for both general and specific deterrence. The ruling allows the FWO to remit penalties to the workers if the compensation is not paid. In a related matter, FTM was previously found to have unjustly dismissed a massage therapist and a handyman-cleaner, highlighting a pattern of wrongful termination within the company. These unjust terminations, including allegations such as burping on customers and selling allegedly stolen goods, illustrate the company's repeated misuse of its power over employees. FTM's actions constitute wrongful dismissals that violate fair work principles and undermine employees' rights. Conclusion This case serves as a critical reminder of the importance of protecting vulnerable workers from exploitation and ensuring that employers are held accountable for their actions. The substantial penalties imposed on FTM and its director reflect the seriousness of their misconduct and the ongoing need for vigilance in upholding fair work practices. As employment and human rights advocates, it is our duty to support those who face such injustices and to push for stringent enforcement of workplace laws to prevent such abuses from recurring.