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Focus: Workplace Relations

5 July 2011

In this issue: We look at a case in which an executive's termination was held to have been lawful; a development in the test for distinguishing between employees and independent contractors; new Victorian anti-bullying legislation; enforcement of a post-employment restraint; company director liability for underpayment of wages; protected action ballot orders and when they can be granted; employer negligence for failing to protect employees from psychiatric injury; possession of psychological disorder not sufficient to make performance management and dismissal unfair; and increases to the national minimum wage. 

Termination of senior executive found to be lawful

In brief: The Federal Court has found that JP Morgan did not engage in misleading or deceptive conduct, nor breach its contractual obligations, when it dismissed its Head of Corporate Derivatives Marketing. Senior Associate Veronica Siow and Lawyer Rachel Chua report.

How does it affect you?

  • A court is unlikely to incorporate representations made during the formation of an employment contract as express contractual terms.
  • Offering a deed of release when negotiating an exit package does not, of itself, amount to an anticipatory breach of the employment contract.
  • A redundancy policy will not be incorporated into an employment contract unless it is expressly provided for in that contract, or the policy clearly demonstrates the parties' intentions to give the policy contractual force.

The facts

Colin Keays was approached to work for JP Morgan Administrative Services Australia Limited (JP Morgan) in late 2005 and commenced employment as its Head of Corporate Derivative Marketing in 2006. Before joining JP Morgan, Mr Keays was employed by Deutsche Bank as its Director of Derivative Sales for New South Wales.

As part of a company restructure, JP Morgan removed some responsibilities from Mr Keays' position and offered him a different role within the business. Mr Keays turned down the new role and his employment was terminated, by way of redundancy, in June 2008. JP Morgan offered Mr Keays a deed of release, providing for up to 12 weeks' severance pay and a payout of his shares in JP Morgan, in addition to his contractual entitlement of three months' pay in lieu of notice. Mr Keays rejected the offer, and was paid his statutory and contractual entitlements on termination.

Mr Keays commenced proceedings against JP Morgan in the Federal Court, alleging anticipatory breach, repudiation, breach of contract, and misleading or deceptive conduct in contravention of sections 51A, 52 and 53 of the Trade Practices Act 1974 (Cth). He claimed damages in excess of $6 million, which he alleged would have been his earnings up until his 60th birthday in January 2018. Among other claims, Mr Keays alleged that JP Morgan had represented that his employment would be long-term and ongoing, and that a redundancy policy should be implied into his contract.

The decision

The court dismissed Mr Keays' claims, for the following reasons:

  • Mr Keays had actively participated in the negotiation of his employment contract, which he had understood and signed willingly. There was, therefore, nothing to suggest he had been misled as to its terms;
  • the offer of a deed of release did not amount to anticipatory breach; and
  • the offer of a different position within JP Morgan did not amount to repudiation, the court accepting that JP Morgan had an express contractual right to terminate the contract and it had lawfully exercised it.1

The court also accepted that representations Mr Keays alleged JP Morgan had made, to the effect that:

  • JP Morgan owed Mr Keays higher levels of entitlements based on those he had received at Deutsche Bank; and
  • the role was long-term and ongoing,

did not amount to express terms of Mr Keays' contract of employment, as these representations were not intended to have legal effect.

Finally, the court accepted there was no reasonable basis for implying into Mr Keays' contract of employment:

  • a term requiring 12 months' pay for breach of contract, since there was already an express term governing termination that did not provide for compensation;
  • a term requiring JP Morgan to compensate Mr Keays for any loss relating to his position, security of long-term employment and/or entitlements based on his previous position at Deutsche Bank (there was no evidence in support of these propositions and, in any event, none of them was necessary to give the contract business efficacy);
  • a term requiring an additional 12 months' redundancy pay (there was no express term and no relevant redundancy policy for the duration of Mr Keays' employment that could be incorporated into the employment contract); and
  • a term that all Mr Keays' share entitlements should be paid out upon being made redundant, since the employment contract and deed of release expressly outlined the circumstances in which Mr Keays' shares would be paid out.

As a result, no damages were awarded. JP Morgan made an application that it be awarded its costs on an indemnity basis because Mr Keays' case was destined to fail. The court rejected this application but required Mr Keays to pay JP Morgan's costs of the proceedings to judgment.2

Employee or independent contractor – can you tell the difference?

In brief: Employees can be distinguished from independent contractors by practical consideration of the true nature of the relationship as a whole. Senior Associate Luke Gattuso and Law Graduate Ali Ridley report on a recent Federal Court decision.

How does it affect you?

  • It is important that companies correctly classify relationships within their workforce. In particular, treating and misrepresenting an employee as an independent contractor can have serious consequences.
  • When determining whether an individual is an employee or an independent contractor, it is important to look at the 'totality of the relationship'. This requires considering, as a practical question, whether:
    • the person performing the work is an 'entrepreneur' who owns and operates a business; and
    • in performing the work, they are working in and for that business as a representative of that business and not of the business receiving the work.

Background

On Call Interpreters and Translators Agency had previously sought a ruling from the Australian Taxation Office (the ATO) that its panel of interpreters and translators were independent contractors rather than employees. Based on the information provided to the ATO at that time, On Call was informed that the workers did not appear to be employees. Partly due to this advice, On Call treated the vast majority of its panel as independent contractors.

The ATO subsequently decided that On Call had, over a five-year period, failed to make the prescribed minimum superannuation contributions for its employees and was liable to pay the superannuation guarantee charge. On Call appealed that decision to the Federal Court.3

The Federal Court's decision

Federal Court Justice Bromberg acknowledged the difficulties in distinguishing between employees and independent contractors, and the need to apply the multi-factorial test in looking at the totality and true nature of the relationships concerned.

He considered that an 'entrepreneur test', based on a number of other Australian and UK cases, was central to the issue. The test is expressed as follows:

'Viewed as a "practical matter":

(i) is the person performing the work an entrepreneur who owns and operates a business; and,

(ii) in performing the work, is that person working in and for that person's business as a representative of that business and not of the business receiving the work?'

If the answer is yes, the person is likely to be an independent contractor, but if the answer is no, the person is likely to be an employee.

Applying this test and considering the relevant indicia, Justice Bromberg found that the relevant workers were On Call's employees. This conclusion was reached notwithstanding that On Call could not require its interpreters to accept assignments, the court reasoning that this level of control was only one consideration and, in any event, similar to the level of control an employer exercises when engaging casual employees.

Victoria's tough stance on workplace bullies

In brief: The Victorian Government has passed tough new anti-bullying laws that make bullies liable to 10 years' imprisonment. Lawyer Andrew Stirling and Law Graduate Danielle Rossitto report on this recent development.

How does it affect you?

  • Bullying in the workplace has typically been addressed through prosecutions under workplace health and safety laws that require employers to provide a working environment free from risks to health and safety.
  • Under the new laws in Victoria, bullying conduct – both inside and outside the workplace – may constitute stalking, under the Crimes Act 1958 (Vic), and individual perpetrators may be liable to up to 10 years' imprisonment.

Amendments to the Crimes Act

The Crimes Amendment (Bullying) Act 2011 (Vic) (the Amending Act) was passed by the Victorian Government on 7 June 2011. The laws amend the stalking provisions in the Crimes Act 1958 (Vic) to include bullying conduct.

In particular, the Amending Act broadens the definition of stalking to include:

  • making threats, using abusive or offensive words, performing abusive or offensive acts, and directing abusive or offensive acts towards a victim;
  • acting in a way that could reasonably be expected to cause physical or mental harm to the victim; and
  • actions that would reasonably be expected to cause the victim to self harm.

Further, the Amending Act also defines mental harm for the first time, to include psychological harm and suicidal thoughts.

As well, the Amending Act allows magistrates to grant intervention orders if they are satisfied that an applicant is being seriously bullied and that the bullying is likely to continue. Intervention orders are designed to be a preventative measure against bullying in the community.

Amendments

While most instances of bullying will continue to be pursued under occupational health and safety legislation (ie for failure to provide a safe place of work), the new Victorian legislation makes it clear that serious bullying conduct in that jurisdiction, whether occurring in the workplace or outside it, may amount to a criminal offence.

Fashioning remedies in restraint cases

In brief: In a recent decision of the Supreme Court of New South Wales, post-employment restraints on a television executive were upheld but with the court fashioning a remedy that was not exactly consistent with its terms. Senior Associate John Naughton reports.

How does it affect you?

  •  A court's first task when asked to enforce a restraint clause is to consider whether the clause is void for uncertainty. If it is, the clause fails and the employee is not restrained.
  • However, even if the restraint clause is held to be valid and enforceable, a court will still has a substantial discretion in determining the appropriate remedy.
  • In particular, when another remedy would do justice in the circumstances, a court will fashion a remedy that may not accord with the express restraint terms.

Background

Mr Warburton was a television executive at the Seven Network. Despite being engaged on a fixed term until 14 October 2011, Mr Warburton signed a contract with Network Ten on 2 March 2011. On the same day, the Seven Network told him to leave its premises and take gardening leave.

Mr Warburton's engagement was subject to a restraint clause preventing him from taking up employment with any competitor of the Seven Network for a period of up to 12 months after he 'ceases to be employed or engaged by a Group Company' (of the Seven Network).

In proceedings the Seven Network brought in the New South Wales Supreme Court:4

  • the Seven Network asserted that the restraint clause should be enforced, so that when Mr Warburton's current period of gardening leave expired on 14 October 2011 (and his employment was terminated), his post-employment restraint obligations would apply, meaning he would be restrained until 14 October 2012; and
  • Mr Warburton claimed the restraint was void for uncertainty because of its multiple combinations and permutations.
The restraint clause

The restraint clause to which Mr Warburton was subject prohibited him from directly or indirectly preparing for, or carrying on or being engaged or involved in, any trade, business or undertaking that was the same as, or substantially similar to, the businesses operated by the Seven Network. The restraints were drafted in a cascading form based on different restraint periods and geographical areas.

The restraint periods were 12 months, or six months, or three months from the date Mr Warburton's employment ceased. The restraint areas were any region of the world, or country, or state or territory, or 300 kilometres from any city or town, where the Seven Network carried on businesses at the time Mr Warburton's employment ceased.

Mr Warburton claimed that the restraint clause was void for uncertainty because of its supposed complexity. However, the court observed that restraint clauses will not be void simply because their combinations and permutations made them complex.

We note there may have been scope to impugn the clause on the basis that, rather than creating multiple restraints applying simultaneously, the restraints were uncertain because they were expressed as alternatives (ie by the inclusion for each time period and geographic region of the expression '...unless that period/area is held invalid for any reason by a court of competent jurisdiction') and therefore dependent upon the ruling of a court for resolution.5 However, this argument does not appear to have been made in this case.)

The decision

The court held that the restraint was not void for uncertainty and also considered it relevant that Mr Warburton had both:

  • acknowledged the reasonableness of the restraint period; and
  • attended a presentation about the rationale and purpose behind the clause, and received written legal advice addressing its effect.

In considering the terms of the injunctive relief to be granted, the court considered:

  • that, whether measured from 2 March 2011 (when Mr Warburton was removed from the Seven Network's premises) or from 14 October 2011 (the date his gardening leave was due to expire), a 12-month restraint was unreasonable and unnecessary in the circumstances; and
  • that any restraint lasting beyond 1 January 2012 would exceed what was necessary for the reasonable protection of the legitimate interests of the Seven Network.

Accordingly, the court ordered that Mr Warburton be restrained until 1 January 2012, and only within Australia. Mr Warburton was ordered to pay 70 per cent of the Seven Network's costs, to recognise its substantial (but not complete) success in the proceedings.

Personal liability of company directors for underpayment of wages

In brief: Company directors and secretaries may be personally liable for the under-payment of employee wages. Lawyer Eleanor Khor reports on a recent Federal Magistrates Court case.

How does it affect you?

  • Where company directors and secretaries are responsible for determining and adjusting employee wage rates, they may become personally liable for penalties if the company fails to meet its minimum legal obligations.

Background

Aussie Junk Pty Ltd operated waste management facilities in the Australian Capital Territory. Mr Dennis Richter was Aussie Junk's sole director and company secretary.

The Fair Work Ombudsman (the FWO) brought proceedings against Aussie Junk and Mr Richter for:

  • underpaying 10 of Aussie Junk's former employees a total of $259,315; and
  • dismissing three employees following their having complained of underpayment to the Workplace Ombudsman.

The FWO argued that Mr Richter was the person solely responsible for determining and adjusting wage rates and conditions for Aussie Junk's employees, and that he was therefore liable to a penalty under the provisions of the Workplace Relations Act 1996 (Cth) that impose liability on an 'accessory' to a contravention of the Act.6 It transpired that the underpayments had been brought to Mr Richter's attention by KPMG in 2007, Thiess in June 2008, and the Workplace Ombudsman in August 2008.

The decision

The court imposed a penalty of $72,000 on Mr Richter.7 It ordered that this penalty be paid to the FWO, which would then disperse the money to the underpaid employees according to the percentage of the total unpaid wages owed to each of them.

Although Mr Richter had made additional payments to the employees, which he sought to set off against the underpayments, the court ruled that these were not made for the purpose of meeting the obligations imposed by award terms and conditions, and so could not satisfy those obligations.

The court found that the maximum penalty it could award against Mr Richter was $99,000. In seeking a lesser penalty, he argued that the court should consider:

  • that any underpayments were inadvertent;
  • that he had no actual knowledge of the breaches;
  • that Aussie Junk was a relatively modest operation; and
  • his personal circumstances, including the death of his wife, and that he would suffer financial hardship if a substantial penalty were imposed.

No concession was allowed because of the company's size. However, the court accepted Mr Richter's submissions regarding financial hardship, noting that when determining a monetary penalty, the offender's capacity to pay will usually be considered.

Refusal to bargain justifies protected action

In brief: Fair Work Australia has confirmed that protected action ballot orders may be granted before bargaining has commenced, effectively compelling unwilling employers to negotiate. Senior Associate John Naughton reports.

How does it affect you?

  • A protective action ballot order is required before employees can take protected industrial action. Under section 443 of the Fair Work Act 2009 (Cth), applications for protected action ballot orders will be granted only where an applicant is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
  • Employees may demonstrate that they are making genuine attempts if they can point to evidence that they are seeking to bargain and the employer is refusing to bargain.
  • The effect of Fair Work Australia's approach is that unwilling employers may be compelled to negotiate.

Background

In February 2010, the Transport Workers' Union (the TWU) asked JJ Richards & Sons Pty Ltd (JJ Richards) to negotiate an enterprise agreement. JJ Richards refused and, in November 2010, the TWU applied successfully to Fair Work Australia for a protected action ballot order.

JJ Richards appealed this decision to a full bench of Fair Work Australia, which confirmed in December 2010 that it was possible to be genuinely trying to reach an agreement regardless of bargaining not having commenced, but found in JJ Richards' favour on technical grounds.8 An application to Fair Work Australia by the TWU, in February 2011, resulted in a protected action ballot being granted.9

Subsequent appeal

JJ Richards and the Australian Mines and Metals Association (the AMMA) subsequently lodged appeals.10

JJ Richards and the AMMA argued that legal strikes could only be allowed in bargaining periods, or if the employer is unwilling to bargain, after the applicant has exhausted the steps available to it under the legislation (including seeking a majority support determination and, if necessary, good faith bargaining orders). The appellants conceded that this interpretation required reading some words into section 443(1)(b) of the Fair Work Act 2009 (Cth), but argued that the words of the section were ambiguous, and that the intention that protected industrial action should not be taken if bargaining had not commenced was made clear in various provisions of the Explanatory Memorandum.

However, the Full Bench considered that s443 was expressed clearly, meaning that there was no need to consider extrinsic materials or to read into the section any additional words. It upheld Fair Work Australia's original decision to grant the protected action ballot order, finding that where a bargaining representative legitimately requests an employer to bargain, and the employer does not agree to do so, a finding that the representative was genuinely trying to reach an agreement is likely (unless the request to bargain is a sham). 

Focus: Employer's failure to foresee risk of psychiatric injury comes at a high cost

In brief: The Supreme Court of New South Wales recently found that the Speaker of the Legislative Assembly had been negligent in failing to protect an employee from psychiatric injury caused by workplace bullying, harassment and victimisation. Senior Associate Veronica Siow and Lawyer Sarah Hampton report.

How does it affect you?

  • If there is a reasonably foreseeable risk of work-related psychiatric injury to a particular employee, the employer must take reasonable steps to eliminate that risk or to provide adequate protection to that employee.
  • Employers should carefully assess any behaviour or events in the workplace that may cause stress to their employees (beyond the stress commonly experienced by employees in the workplace).
  • Employers should also carefully monitor the actions of persons exerting control over its employees, as the employer has a non-delegable duty and will be liable for any failure on its part to protect its employees from reasonably foreseeable risks of injury to them.

Background

Ms Sneddon was employed by the Speaker of the NSW Legislative Assembly to work in the electorate office of Mr Milton Orkopoulos (then Minister for Aboriginal Affairs and the Member for Swansea) under his direction and supervision.

Between 2001 and 2006, a number of events occurred at the electorate office that caused Ms Sneddon stress and anxiety, including repeated aggressive behaviour by a particular constituent. On one occasion, Ms Sneddon received a phone call in which the caller alleged that he had been sexually assaulted and given drugs by Mr Orkopoulos since the age of 15. Ms Sneddon reported the matter to Mr Orkopoulos and another Member of Parliament, and was subsequently a key witness in the police investigation of those allegations. After reporting the phone call, Ms Sneddon claimed she was subjected to bullying, harassment and victimisation by Mr Orkopoulos and her co-workers.

In October 2006, Ms Sneddon informed her employer that she was suffering from work-related stress and anxiety, and took stress leave. While on leave, Ms Sneddon attended the electorate office a number of times to copy records, which she then provided to the police. Mr Orkopoulos became aware that she was accessing those records and the Speaker authorised him to change the office locks. Ms Sneddon alleged that being locked out of the office without any notice or explanation increased her sense of isolation and exacerbated her psychiatric injury.

The decision

Ms Sneddon brought various claims against Mr Orkopoulos, the Speaker and the State of New South Wales, including negligence and breach of contract.

The New South Wales Supreme Court found that the Speaker, as Ms Sneddon's employer, had breached his non-delegable duty to avoid exposing her to risk of psychiatric injury.11

The court observed that, while some level of stress will arise in every workplace,12 the employer must intervene where there is a reasonably foreseeable risk of psychiatric injury to a particular employee. The courts will assess the reasonableness of their response in light of that employee's circumstances.13

In this case, the court held that from October 2006 the Speaker was on notice about Ms Sneddon's mental state and workplace situation, and should have reasonably foreseen that changing the locks at her place of work without first informing her was likely to exacerbate her psychiatric injury.

The court also found that:

  • Mr Orkopoulos had a duty of care to Ms Sneddon because of his direct control over her in the workplace. A reasonable person in Mr Orkopoulos's position, who was aware of Ms Sneddon's vulnerability after the aggressive behaviour of the constituent, should have foreseen that his bullying would be likely to cause her psychiatric injury and refrained from such behaviour.
  • The Speaker was vicariously liable for Mr Orkopoulos's behaviour, because the circumstances established the necessary relationship of control, including that:
    • the Speaker employed Ms Sneddon to work under Mr Orkopoulos's direction and supervision;
    • Mr Orkopoulos acted as the Speaker's representative and, as such, had a duty of care to provide Ms Sneddon a safe place of work; and
    • the Speaker exerted control over Mr Orkopoulos as a Member of Parliament, through its workplace policies.
  • The state of New South Wales was not liable, as it was neither Ms Sneddon's employer, nor were Mr Orkopoulos's acts committed in the performance of his duties as a minister.

Ms Sneddon was awarded damages in the amount of $438,613, for past and future economic loss. The Speaker was held to be liable for 75 per cent of those damages, because of its non-delegable duty of care as the employer.

Employee with psychological disorder not unfairly dismissed

In brief: Fair Work Australia has held that an employee was not unfairly dismissed, as she had not provided to her employer adequate information regarding the effect of her psychological disorder on her compliance with normal performance expectations. Special Counsel Rowan Kelly and Law Graduate Peter Jensen report.

How does it affect you?

  • If an employer applies a reasonable and fair performance management process, the mere fact that an employee has a psychological disorder (without any information about that psychological disorder's impact) does not render that process unfair.

Background

Ms A commenced work with Centrelink on 9 September 1996. At the time of her dismissal, on 29 October 2010, she held the senior role of customer service adviser at Centrelink's call centre.

Centrelink had been aware from at least 2000 of Ms A's psychological disorders. Following confirmation in 2006 of her being psychologically fit for duties, she was allocated to call centre duties.

Ms A was later dismissed as a result of failing 'to attain, and sustain, the necessary standards of work performance for a Customer Service Advisor'. This followed a process where:

  • a formal performance improvement program had been instituted to address performance concerns;
  • Ms A was advised that termination of her employment was being considered, and was given an opportunity to respond. Ms A's response referred to her performance being affected by her health;
  • Centrelink then sought advice from Ms A's doctor regarding her disorder;
  • Centrelink then obtained advice from a consultant psychiatrist, under a 'fitness for duty' assessment. This advice recommended Ms A take a month off work, but concluded she was not permanently incapacitated for work and that normal performance management could be undertaken. Ms A was then given leave from work; and
  • Centrelink also made enquiries as to alternative employment for her (which were unsuccessful).
The decision

Ms A claimed before Fair Work Australia that:

  • she was unfairly dismissed by Centrelink, as she suffered from poor psychological health; and
  • Centrelink should have implemented alternatives to the termination of her employment.14

Fair Work Australia dismissed the application, holding that the termination was based on legitimate performance concerns, and that Centrelink's performance management process was exhaustive and fair. The necessary standards of work performance had been made known to Ms A and it was not sufficient for her simply to point to the fact that Centrelink was aware she was taking anti-depressant medication (for example) to assert that it should be precluded from applying its normal and fair employment practices. The court observed that it was Ms A's obligation to provide Centrelink with clear and medically supported grounds upon which her objection to these practices was based.

Conclusion

This decision highlights that the fact that an employee suffers from a psychological disorder does not, of itself, prevent an employer from performance managing that employee and ultimately dismissing that employee on performance grounds. However, if an employer becomes aware that the employee's psychological disorder impacts on their ability to perform their duties, the employer will need to take this into account in managing that employee's performance.

National minimum wages increase 3.4 per cent

In brief: Fair Work Australia's Minimum Wage Panel has conducted its second annual wage review under the Fair Work Act 2009 (Cth), increasing minimum wages by 3.4 per cent. The increases took effect from the first pay date on or after 1 July 2011. Senior Associate Stacey Van der Meulen reports.

How does it affect you?

  • Employers with employees covered by the national minimum wage, modern awards and transitional instruments must ensure that, from 1 July 2011, their employees are paid according to the increased rates (unless they fall within an exception).
  • Employers with employees covered by enterprise agreements will need to ensure that the pay rates applicable under the agreements continue to meet the minimum wages prescribed by the Minimum Wage Panel.

New National Minimum Wages

Under the Fair Work Act 2009 (Cth), Fair Work Australia is responsible for setting minimum wages for employees in the national workplace relations system. Each financial year, Fair Work Australia's Minimum Wage Panel is required to conduct an annual wage review.

The Minimum Wage Panel has conducted its annual wage review under the Fair Work Act for 2010-11, and handed down its decision on 3 June 2011.15 The Minimum Wage Panel decided on a 3.4 per cent increase in:

  • modern award minimum wages;
  • minimum wages in most transitional instruments (subject to exceptions); and
  • the national minimum wage (an increase of $19.40 per week, to a new base rate of $589.30 per week or $15.51 per hour).

A new 22 per cent casual loading for award/agreement-free employees was set. There was no change to the standard casual loading in modern awards, which remains at 25 per cent.

The increases took effect from the first full pay period on or after 1 July 2011.

The next review will be conducted by the Panel before June 2012.

Revised high income threshold

In addition to these changes, the high income threshold under the Fair Work Act increased to $118,100 from 1 July 2011.

This adjustment may be relevant to:

  • modern award coverage;
  • an employee's eligibility to pursue unfair dismissal; and
  • the amount that Fair Work Australia may order by way of compensation to an unfair dismissal claimant.

Therefore, employers should review employees' earnings from 1 July 2011, to appreciate any implications arising from the adjustment to the high income threshold.

Footnotes
  1. Keays v JP Morgan Administrative Services Australia Ltd [2011] FCA 358 (13 April 2011).
  2. Keays v JP Morgan Administrative Services Australia Ltd (No. 2) [2011] FCA 547 (25 May 2011).
  3. On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No.3) [2011] FCA 366 (13 April 2011).
  4. Seven Network (Operations) Limited v Warburton (No 2) [2011] NSWSC 386 (12 May 2011).
  5. See Hanna v OAMPS Insurance Brokers Limited [2010] NSWCA 267, following the reasoning in J.Q.A.T. Pty Ltd v Storm [1987] 2 Qd R 162.
  6. Section 728, Workplace Relations Act 1996 (Cth). The Fair Work Act 2009 (Cth) contains an equivalent provision at section 550.
  7. Fair Work Ombudsman v Aussie Junk Pty Ltd (In Liquidation) & Anor [2011] FMCA 391 (31 May 2011).
  8. See JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 (23 December 2010). We reported on this case in Focus: Workplace Relations on 21 February 2011.
  9. Transport Workers' Union of Australia v JJ Richards & Sons Pty Ltd [2011] FWA 973 (16 February 2011).
  10. JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia; Australian Mines and Metals Association Inc. v Transport Workers' Union of Australia [2011] FWAFB 3377 (1 June 2011).
  11. Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508 (2 June 2011).
  12. [194] citing Chief Justice Spigelman in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 at [20]-[21].
  13. [193] citing Justices McHugh, Gummow, Hayne, Callinan and Heydon in Koehler v Cerebos (Australia) Ltd [2005] HCA 15.
  14. Ms A v The Commonwealth of Australia, represented by Centrelink [2011] FWA 3532 (6 June 2011).
  15. Annual Wage Review 2010-11 [2011] FWAFB 3400 (3 June 2011).

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