In a Full Bench of the Fair Work Commission, the Vice and Deputy Presidents applied recent decisions of the High Court to determine that a Deliveroo delivery worker, Mr Franco, was not an employee and was an independent contractor.  The matter in question is Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156.

The full bench, when applying the rationale in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2, found that on a strict interpretation of the terms of the agreement to carry out work, Mr Franco was a contractor and not an employee.

The full bench did say that had they applied the multifactorial test which applied before Jamsek, it would have concluded that Mr Franco was an employee.

Holman Webb Lawyers is pleased to announce a range of promotions across our Sydney office – effective 1 July 2022:
 
These promotions reflect the commitment and contribution each person has made and continues to make to the fabric of the firm, our values and development.

The 17 June 2022 Federal Court of Australia decision in Zurich Australian Insurance Ltd v Atradius Credito Y Caucion S.A. De Seguros Y Reaseguros [2022] FCA 709 has made clear that care must be taken when bringing proceedings in the Federal Circuit and Family Court of Australia.

The Federal Court has made clear that the FCFCoA only has jurisdiction to hear and determine claims when power has been expressly given to it pursuant to legislation; and that absent such power, proceedings in that jurisdiction are a nullity.

On the contrary, the Federal Court has clear and undisputed jurisdiction arising in the exercise of Federal civil jurisdiction irrespective of any specific grant under legislation.

From Friday 1 July 2022, there will be a number of changes set to impact all Australian businesses.

These changes include increases to minimum wages, compulsory superannuation and penalty units in NSW.   

The changes come as a timely reminder for businesses to review their contracts and industrial instruments. 

It is also a good time for businesses to ensure that they are meeting their minimum obligations, and to confirm who will bear the increase to superannuation.

The 30 May 2022 decision in Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622, handed down by a single Judge in the Federal Court of Australia, has highlighted numerous issues which give pause for thought – specifically regarding how employers should manage their risk, and how injured workers should bring claims for damages for personal injury.

Where an employer is exposed to damages for breach of provisions of the Fair Work Act 2009 or other Commonwealth legislation (such as anti-discrimination law, as well as in negligence), the Federal Court is not restricted in the way it assesses damages by the limitations in the NSW Workers Compensation Act 1987.

With this in mind, employers within the NSW workers compensation scheme may be entitled to indemnity from Icare and SIRA if the breach of the Fair Work Act 2009 arises from an “injury” to the worker. 

The Court has made it clear though, that a worker cannot double dip - and must account for any state compensation received

In August 2021, Holman Webb published an article highlighting the decision in Transport Workers Union of Australia v Qantas Airways Limited [2021] FCA 873, in which a single Judge of the Federal Court of Australia found that Qantas had engaged in adverse action in contravention of the Fair Work Act 2009, in deciding to make its ‘below the wing’ staff redundant.

Case Note: Transport Workers Union of Australia v Qantas Airways Limited 2021 FCA 873

The Trial Judge found that Qantas could not prove a negative - that the substantive and operative cause of the airline’s decision to make the staff redundant was not to prevent the workers exercising a workplace right. The workplace right was identified as the ability to negotiate a new Enterprise Bargaining Agreement in the 6 months following the redundancy. 

Qantas appealed that decision, and the appeal has now been determined.  The Full Court of the Federal Court delivered its judgment in the matter of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 on 4 May 2022, dismissing the Appeal. 

The Full Court of the Federal Court recently handed down its decision in Garner v Central Innovation Pty Limited [2022] FCAFC 64, a case about misuse of confidential information.  In its decision, the Court made numerous important observations concerning how claims should be advanced, and how litigation should be pursued.

This article will focus on what the Court stated in respect of:

• Whether a Plaintiff ought to be confined expressly to the matters it has pleaded, or whether it can advance claims outside of the pleadings where notice is provided to the Defendant; and
• The circumstances under which a claim for loss can be brought by shareholders of a company, and/or whether the company should bring it.

The NSW Government has recently proposed the State Insurance and Care Legislation Amendment Bill 2022.

The Bill proposes to extend certain regulatory, investigative and enforcement powers of the State Insurance Regulatory Authority to oversee and control iCare, self‑insurers and claims agents appointed pursuant to the workers compensation legislation.

If passed, the Bill will heighten the need for iCare, self-insurers, and claims agents to ensure compliance with the regulatory licensing requirements, and to ensure that where a breach occurs, steps are taken to:

• rectify the breach;
• give an appropriate undertaking; and to
• ensure that no further breaches occur.

The proposed amendments were made in line with the McDougall review recommendations with the goal of improving outcomes for all stakeholders

A recent decision of Deputy President Beaumont in the Fair Work Commission (Application by Ranmeet Kaur [2022] FWC 487) has examined the scope of the FWC’s power to make orders to stop sexual harassment which were introduced under amendments to the Fair Work Act in 2021.

The case examined both the jurisdictional requirements necessary for the FWC to make orders and the evidentiary requirements for it to be satisfied that a contravention had occurred, warranting the making of orders.

In the December 2021 decision in Skytraders Pty Ltd v Ian Wallace Meyer [2021] NSWSC 1670 (an employment and confidential information dispute), the Supreme Court of New South Wales held that the Plaintiff was entitled to have an independent forensic computer expert appointed by the Court to conduct an analysis of the defendants’ documents before pleading and evidence closed, to permit the Plaintiff to gain evidence to support its case against the Defendant employee.

This case highlights what is required to have an early independent examination ordered before the pleadings, evidence and discovery stage.  It also demonstrates the disclosure requirements for a party seeking ex parte orders.