During the past 12 months, the main changes to employment law have occurred in response to the COVID-19 pandemic. The key legislative changes are set out in 1.2 COVID-19 Crisis.
Pandemic Amendments to Modern Awards
In April 2020, the Fair Work Commission (FWC) varied 99 modern awards (Awards) in response to the COVID-19 pandemic. The variations to the Awards were initially effective from 8 April 2020 until 30 June 2020. In July 2020, the operation of these provisions were extended until 30 September 2020 in respect of approximately 50 Awards.
The Awards were varied to include the following provisions:
Full-time, part-time and casual employees are eligible to a one-off entitlement of two weeks’ unpaid leave (Pandemic Leave) if they are:
Double annual leave at half pay
Under the Awards, an employer and employee can agree for the employee to take twice as much annual leave on half pay. For example, an employee takes two weeks’ annual leave but is paid for only one week. One week's annual leave is deducted from the employee’s leave accruals.
Accrual of Personal/Carers Leave
In August 2019, a Full Bench of the Federal Court handed down an important decision on the interpretation of the PCL provisions under the Fair Work Act 2009 (Cth) (FW Act) (see Mondelez v AMWU  FCAFC 138). Under these provisions, an employee is entitled to accrue ten days’ PCL for each year of service.
The Court interpreted a “day” of PCL to mean a 24-hour period that would otherwise be allotted to work.
The Court rejected what was previously the accepted approach that employees working 38 ordinary hours per week accrue 76 hours of PCL per annum. The Court held there was no justification for converting PCL into hours.
The Court’s interpretation has implications for employees who do not work a conventional 38-hour week over five days. For example, for employees who work 38 ordinary hours per week over fewer than five days per week, the Court’s decision means they will be entitled to ten days of PCL paid for the hours for which they would have worked. As a result, these employees will receive more hours of PCL than employees whose hours of work are arranged in the conventional way.
In July 2020, the High Court heard an appeal of the decision and has reserved its judgment.
Qantas Sick-Leave Decision
In CEPU & others v Qantas Airways Ltd  FCA 656, the Federal Court ruled that employees who are stood down without pay under the FW Act are unable to access paid PCL. The ruling concerned a challenge by several trade unions to a decision by Qantas not to provide PCL to employees who had been stood down without pay under Australian’s national employment statute, the FW Act.
Central to the Court’s ruling was its characterisation of PCL as a form of income protection for workers when they are unable to work due to for example, illness or injury. An employee who is stood down without pay has no income to protect and has no requirement to work. Paying PCL to such an employee would be inconsistent with the purpose of the leave.
During a period of unpaid stand-down, the FW Work Act provides that an employee is not taken to be stood down if the employee is:
The Court found neither of these two circumstances entitled a stood-down employee to PCL:
Public Health Orders
Australian public health orders have had significant implications for the ability of people to work and the way people work during the pandemic. For example, during the height of the lockdown, the NSW Public Health Order required individuals to remain at home unless they had a reasonable excuse not to do so. In effect, employees were obliged to work from home unless it was not possible.
The Order currently provides that NSW employers must allow their employees to work at home where it is reasonably practicable for them to do so. This means that employers may ask (but not oblige) employees to return to their workplace where working from home is still possible. Accordingly, an employee may refuse a request or a purported direction from the employer to attend the workplace in these circumstances.
In Gupta v Portier Pacific Pty Ltd & another  FWCFB 1698, the Full Bench of the Fair Work Commission decided that Uber Eats “Delivery Partners” are not employees. The case concerned the employment status of an Uber Eats food deliverer (known as a “Delivery Partner”). The applicant Delivery Partner, Ms Gupta, claimed that she was unfairly dismissed by Uber or its subsidiary (Portier Pacific) after working since about September 2017. During the period when she held a Partner account, she undertook approximately 2,200 deliveries.
In January 2019, Uber blocked Ms Gupta’s Partner Account claiming that Ms Gupta had failed to meet its delivery standards. Ms Gupta claimed that this act amounted to an unfair dismissal.
The Full Bench found that Ms Gupta was neither employed nor conducting a business in her own right. The majority held that three critical factors pointed decisively away from a finding of employment:
The majority found that Ms Gupta was neither employee nor independent contractor disturbs an established line of precedent that has treated the notions of serving in the business of another and operating one’s own business as being entirely dichotomous; that is, a worker is either an employee or an independent contractor employed in his or her own business enterprise.
Wage Subsidy Scheme
In response to the pandemic, the Australian Government established a wage subsidy scheme (known as JobKeeper) under which the Australian Government reimburses the wages paid by employers who have suffered a prescribed reduction in turnover. The Government provides a wage subsidy of AUD1500 before tax per fortnight paid to employers in arrears to reimburse them for income already paid to their eligible employees.
The scheme was originally designed to operate from 30 March until 27 September 2020. On 21 July 2020, the Australian Government announced changes to the wage subsidy and extended its operation until 28 March 2021. From 28 September 2020, the JobKeeper scheme will transition to a tiered system where eligible employees will receive JobKeeper payments based on the average number of hours per week that they worked for their employer in the four weeks of pay periods prior to 1 March 2020.
Eligible employees who performed an average of 20 hours or more work for their employer in the four weeks of pay periods prior to 1 March 2020 will receive reduced payments of:
All other eligible employees will receive reduced payments of:
Changes to the Fair Work Act
The Australian Government enacted temporary amendments to the FW Act. The amendments commenced on 9 April 2020 and are automatically repealed on 28 September 2020. The changes to the FW Act apply only to employers who qualify for the JobKeeper scheme, as well as their employees, who will be eligible to receive the benefit of the wage subsidy.
The Government has yet to announce whether it will legislate to extend the operation of the temporary amendments to the FW Act in line with the extension of the JobKeeper Scheme until 28 March 2021.
The key changes are:
a) reducing their days and hours of work known as a JobKeeper stand-down direction;
b) performing any other duties within the employees' skill and competence; and
c) performing duties at a different work location;
Blue-Collar and White-Collar Workers
The expressions blue- and white-collar workers are used in Australia to describe workers who are trade-qualified or perform manual labour and office-based workers or professionals, respectively. These expressions do not have any legal significance. A more useful distinction is that of: (i) employees whose employment is subject to a modern award or enterprise agreement, and (ii) those employees who are not subject to either of these instruments.
Employees in certain industries and occupations are covered by modern awards. Modern awards are made by an industrial tribunal (known as the Fair Work Commission) and prescribe minimum terms and conditions of employment. Modern Awards do not apply to employees whose earnings exceed the high-income threshold (currently AUD153,600) and are subject to a guarantee of annual earnings.
An enterprise agreement is a collective labour agreement that is usually negotiated at an enterprise level and most often applies to one employer in respect of its employees. Like a modern award, enterprise agreements prescribe minimum terms and conditions of employment. Within Australia there are various types of employment arrangements which vary depending on the numbers of hours worked each week, the terms of engagement and the agreement between the parties. These include:
Types of Employment Contracts
Ordinarily, the key terms of an employment contract will be set out in a written agreement between the parties. However, the terms may also be concluded by a verbal agreement or a combination of both. The key terms of employment will usually include the employee’s position, title, location, employment status (ie, full-time, part-time, fixed-term or casual), remuneration, incentive entitlements, obligations with respect of use and disclosure of confidential information, intellectual property rights, post-employment restraints of trade (if any, addressed in 3 Restrictive Covenants), termination and redundancy.
Employment contracts may provide for ongoing employment or for a fixed or maximum term of employment (addressed in 2.1 Status of Employee).
An employment contract cannot provide for less than the legal minimum requirements set out in the National Employment Standards (NES) or collective instruments, such as modern awards or enterprise agreements.
The ten standards set out under the NES are:
It is in the interests of all parties to have a written employment contract outlining the terms of the employment relationship, in order to mitigate the risk of a dispute about the terms of employment.
Maximum Working Hours
The NES provides that the maximum hours per week are 38 hours for a full-time employee. The hours an employee works in a week are taken to include any hours of leave or absence (whether paid or unpaid) authorised by the employer under the terms of the employee’s employment or by or under a law.
Reasonable Additional Hours
The NES provides that employers cannot require employees to work more than 38 hours unless the additional hours are reasonable. Under the NES, the following must be considered in determining whether additional hours are reasonable:
Averaging of Hours
The hours of work for employees not covered by a modern award or enterprise agreement may be averaged over a period of up to 26 weeks. Modern awards and enterprise agreements may provide that ordinary hours of work are averaged over a period greater than 26 weeks.
Not all employees are entitled to additional remuneration (known as overtime) or time off in lieu of overtime for working outside their ordinary hours or above their agreed number of hours. Employees are only entitled to overtime if it is a contractual entitlement (which is not common) or a modern award, enterprise agreement or other industrial instrument that provides for overtime.
National Minimum Wage
The FWC annually reviews and sets the minimum wage that must be received by employees in Australia. The FWC national minimum wage order comes into effect from the first pay period on or after July 1st each year.
For the 2020 financial year (1 July 2020 to 30 June 2021):
The FWC announced a minimum-wage rates increase in modern awards of 1.75% with staged effective dates for different groups of modern awards: Group 1 will commence from 1 July 2020; Group 2 will commence from 1 November 2020; and Group 3 will commence from 1 February 2021.
Under the NES, permanent (ie, full-time and part-time) employees are entitled to:
Legitimate Business Interest
Non-compete clauses and other restraints of trade are, as a general rule, contrary to public policy and void unless they are justified by special circumstances in a particular case. The party seeking to enforce the non-compete clause bears the onus of establishing its validity.
Whether any of the restrictions are enforceable will depend on whether:
Legitimate business interests that may justify non-compete clauses include protection of the following:
An employer is not entitled to be protected against mere competition. The legitimate business interest is assessed in the context of the factual circumstances existing at the time the restraint was entered into. The circumstances of the individual being restrained in the context of the employment will also be considered in determining the validity of the non-compete clause.
A basic requirement of any contract is that there is consideration for the agreement reached. This principle also applies in restraint cases. However, there is no principle that employees must receive remuneration equivalent to the period of restraint for the restraint to be enforceable. Moreover, the fact that an employee will suffer no financial loss in being restrained will be a matter considered by the court.
Position in NSW
In all states of Australia except New South Wales (NSW), unreasonable restraints will not be enforced. In NSW, the position is different because of the NSW Restraints of Trade Act 1976 (RTA). The RTA provides that a restraint is valid to the extent it is not against public policy. Where a NSW restraint is challenged, the RTA empowers the NSW Supreme Court to consider and in effect read down and effectively amend an unreasonable restraint in the context of an actual breach and impose a lesser restraint; for example, a court may find that an employee should be restrained for three months in NSW rather than six months throughout Australia. While there are numerous cases where the RTA has been used, the outcome of each case will turn on its particular facts.
Australian courts have recognised an employer’s interest in maintaining a stable workforce. This interest may be protected by a time-limited post-employment restraint prohibiting the former employee from soliciting the employer’s employees. In granting an order enforcing an employee non-solicitation restraint, the court will consider the length and breadth of the restraint in the context of whether it applies to all employees or only to those the restrained employee could reasonably be said to have influence over.
Australian courts have recognised that some customer relationships which an employee develops and/or maintains on behalf of their employer may be protected by a time-limited post-employment restraint prohibiting the former employer from soliciting the employer’s customers.
Not all customer relationships will justify the protection of a non-solicitation restraint. The courts will consider various factors, such as the nature of the employee’s dealings with the customer (including their complexity and timeframe, frequency and how exclusive they are in relation to the employer’s other employees). A non-solicitation restraint is also more likely to be enforceable when the employee’s dealings with the customer take place at the customer’s premises.
In other words, the non-solicitation restraint is more likely to be enforced where the employee is seen by the customer as (according to one case) the “human face” of the business.
The Privacy Act 1988 (Cth) (Privacy Act) provides the governing framework for privacy in Australia and deals with the collection, use and disclosure of personal information.
Employee Records' Exemption
The Privacy Act provides an exemption for employee records that are directly related to a current or former employment relationship in a private sector organisation.
For an employee record to be exempt from protection under the Privacy Act, three requirements must be satisfied:
This exemption does not extend to unsuccessful job applicants (since no employment relationship is formed) or contractors.
Employers and foreign workers (excluding New Zealand citizens) must meet strict requirements to be able to work full-time lawfully in Australia. New Zealand citizens are able to work in Australia without a business sponsorship. Foreign employees seeking a short-term working period of up to three months can do so if supported by their employer and the activity is considered of value to the employer or an associated business in Australia.
Employers may sponsor foreign workers to obtain a visa to work lawfully in Australia for longer periods. With some exceptions, the worker must be on a list of skilled occupations. Employers must be a registered sponsor with the Department of Immigration.
Relevant visas include Temporary Skill Shortage Visas (one to four years' duration with no geographical restrictions) and Regional Sponsored Migration Scheme Visas (at least two years’ employment for work done in a regional area). In each instance, the worker must either have the skills to perform the occupation or undergo a skills' assessment, unless an exemption applies.
If the job is on the list of skilled occupations and the standard visa programmes are not available, it may be possible to enter into a labour agreement with the Australian government. Labour agreements are usually in effect for five years and provide for visas to be granted without the usual visa requirements being met. The visas available under a labour agreement are the Temporary Skill Shortage Visa and the Employer Nomination Scheme Visa. Salaries paid to sponsored foreign workers must meet minimum levels as set by the Department.
The Employer Nomination Scheme Visa can be used for permanent residency sponsored by an Australian business, either upon initial application or after three years working for the employer in Australia. A more limited skilled occupations list applies.
Registration may be required for some occupations, eg, doctors, nurses and lawyers. If registration is required, this will have to be obtained as part of the application process. Occupation skills' assessments by a relevant nominated authority may be required for permanent residency applications.
Trade unions, enterprise associations (an association of member employees performing work in the same enterprise) and employer associations are legally recognised entities which are required to be registered with the Registered Organisations Commission. This Registered Organisations Commission and the FWC have split responsibilities for the regulation of these unions and associations.
In addition to the unions’ key roles of acting as the bargaining representatives for employees in relation to enterprise agreements, as set out below, trade unions and enterprise associations have broad rights to enter workplaces to:
Unions commonly act as advocates for employees in disputes with their employer and often initiate proceedings on behalf of employees with respect to certain workplace-related laws.
There is no broad legislative framework for employee representative bodies or committees in Australia. There are, however, State and Territory laws relating to work health and safety which provide for the structure, rights and processes of health and safety committees and representatives. The main functions of such committees are to co-operate with the employer and other relevant parties in developing and carrying out measures to improve the safety of workers.
Enterprise agreements (addressed in 6.3 Collective Bargaining Agreements) may also provide a framework for the structure and rights of employee representative committees, which are generally limited to matters of work health and safety or major changes in the workplace.
Employers and employees may negotiate collective agreements, referred to as "enterprise bargaining agreements", based on terms and conditions that must be better overall when compared to the minimums under applicable modern awards.
Modern awards set the minimum terms and conditions across the whole of industries and occupations in Australia.
The mandatory terms that must be included in enterprise agreements relate to the coverage and term of the agreement, consultation, flexibility and dispute resolution.
For genuinely new businesses, activities, projects or undertakings, employers and unions can bargain directly for a "greenfields agreement", without employees being involved or employed by the new enterprise.
When bargaining for such an agreement, the employer and employees may nominate a bargaining representative. Unions are the default representative for its member employees, unless revoked or another appointment is made by the employee. Bargaining must be in accordance with the prescribed good-faith bargaining requirements, which includes attending to and participating in meetings and genuinely considering a bargaining representative’s proposals. However, good-faith bargaining requirements do not require parties to make concessions or reach an agreement on terms to be included in the agreement.
Employees are able to take protected industrial action by striking or imposing partial work or overtime bans. However, protected industrial action may only be taken by employees when they are negotiating a new enterprise agreement and subject to certain notice and procedural requirements being satisfied. Employers may take responsive protected industrial action by locking out employees.
Once an enterprise agreement is made by the employer and employees, it must be approved by the FWC. It will then operate for its nominated term for a maximum period of four years and will continue to apply to the employer and employees even after its nominated expiry date, unless it is replaced or terminated.
There are also certain circumstances involving the acquisition of a business and the transfer of employees where enterprise agreements can transfer to the new employer and continue to apply to the transferring employee and the new employer, until replaced or terminated. In some instances, new employees of the new employer can also be covered by the transferring enterprise agreement. Applications can be made to the FWC for orders in relation to transfer of enterprise agreements, such as an order that the transferring enterprise agreement will not cover transferring employees.
An employer may dismiss an employee by giving him or her the required period of notice without having a reason, or without notice for serious misconduct. Employees are able to challenge their termination in certain circumstances, as set out below.
Different procedures apply or are recommended, depending on the reason for termination and the employee’s ability to bring a claim. Where an employee is able to bring an unfair dismissal claim, the employer must have a valid reason for the termination and follow a fair process. Where the reason for the dismissal is the employee’s capacity, conduct (other than serious misconduct) or performance, this will generally involve a series of discussions with the employee and the giving of warnings.
Additional requirements apply where the termination is due to redundancy (which arises where the employer no longer requires anyone to perform the position held by an employee). For employees who are covered by an award or enterprise agreement, consultation must take place in accordance with the consultation provisions of the award or enterprise agreement. To avoid an adverse unfair dismissal outcome, redeployment to an available and suitable role within the employer’s business or the business of an associated entity must be considered.
Where 15 or more employees are to be made redundant, the employer has an additional obligation to notify the government employment agency and the union for any employees who are union members.
Unless termination without notice is justified, the FW Act requires that employers give employees a specified minimum period of notice for the termination to be effective. The required minimum notice is a sliding scale ranging from one week (for employees with up to one year's continuous service) up to four weeks (for employees with more than five years’ continuous service). An additional one week's notice is required for employees who are over 45 years of age and have more than two years’ continuous service.
Longer periods of notice can also be specified in enterprise agreements and contracts (which may link to policies that are legally binding). An employer should give the longest period of notice legally applicable.
Redundancy pay (or severance) is payable in addition to minimum period for notice of termination in the FW Act. The FW Act sets out a minimum redundancy payment scale based on years of service. To qualify for a payment, employees must have at least one year's continuous service. The minimum payment is four weeks’ pay for employees with at least one year's service and the highest payment is 16 weeks’ pay for employees with nine years' but less than ten years’ service. After ten years’ service, the required redundancy payment is 12 weeks’ pay. “Pay” is calculated by reference to base pay for ordinary hours and excludes bonuses.
It is possible that an enterprise agreement, employment contract or a legally binding company policy may provide for more generous redundancy benefits.
Consultation obligations must be met with award and enterprise agreement employees (see 7.1 Grounds for Termination).
There is no legal requirement for external advice or authorisation; however, it is recommended that employers obtain legal advice before proceeding with redundancies.
Termination without notice is permitted where the employee commits an act of serious misconduct. Serious misconduct is a breach of contract by the employee that is serious enough to warrant immediate termination because it demonstrates an intention by the employee not to be bound by his or her employment contract. Employment contracts commonly include examples of when termination for serious misconduct will be justified, including but not limited to where the employee is charged with a criminal offence. The Fair Work Regulations 2009 (Cth) also have a definition of serious misconduct which includes examples of theft, fraud, assault, being intoxicated at work and refusing to carry out a lawful and reasonable instruction.
For employees who are able to bring an unfair dismissal claim, they must be given details of the allegations against them, an opportunity to explain their conduct and be told the reason for termination. Procedurally, an unreasonable refusal by the employer to let the employee have a support person at any discussions related to the dismissal is a matter taken into account in an unfair-dismissal claim context.
Deeds of release or settlement/termination agreements are permitted in Australia. They can be used at the time of termination and are standard in the settlement of claims. They are most commonly in the form of a deed of release. The deed must be in writing, signed, witnessed (if executed by an individual outside Victoria) and stated to be a deed. It will only become effective on the date the parties indicate (by words and by the conduct and the circumstances surrounding the execution of the deed) that they intend to be bound.
Releases are not able to cover statutory workers' compensation claims (which relate to workplace injuries) or claims under superannuation legislation (which is a compulsory retirement-funding scheme).
Employees who are covered by a modern award or enterprise agreement or whose earnings are less than the high-income threshold under the FW Act (currently AUD153,600) are able to bring an unfair dismissal claim. Earnings include base salary, salary sacrificed amounts and agreed value of non-monetary benefits. The high-income threshold is indexed annually. Service thresholds also apply; six months for an employee of a business with 15 or more employees and one year for employees of a business with fewer than 15 employees.
The FW Act also contains prohibitions on termination for specified reasons. These include where the reason is because of a workplace right (such as a right under the FW Act or a right to make a complaint or inquiry in relation to an employee’s employment), discriminatory grounds (including race, sex, age) or an employee’s temporary absence through illness or injury or engagement in industrial action. To avoid an inference of the above unlawful reasons being found to be the reason for termination, it is recommended that employees are notified, in writing, of the lawful reason(s) for termination, such as due to redundancy or because of performance or conduct concerns.
Breach of Contract
A breach of contract claim is available where an employee alleges that their dismissal constitutes a breach of an express or implied term of his or her contract. A breach of contract claim may be commenced in the State, Territory or Federal Courts (depending on the value of the claim and the contents of the allegation of breach) of the jurisdiction most closely connected to the claim.
The successful party in breach of contract claims will ordinarily be awarded their costs of the proceedings on an indemnity or party/party basis. Because of the cost implications, breach of contract claims are generally commenced for claims seeking a substantial award of damages or are attached to another claim (such as a general protections claim).
Australian Federal, State and Territory laws prohibit discrimination of employees based on certain grounds or attributes. These grounds and attributes include:
These attributes vary across the Australian, Federal State and Territory anti-discrimination laws. A claim of unlawful discrimination usually involves a claim that an individual or company has engaged in an act or omission based on one (or more) of the applicable attributes that result in some harm or less favourable treatment.
Direct and Indirect Discrimination
The types of discrimination that apply to most of these protected attributes include:
(a) lodged or propose to lodge a complaint of discrimination or harassment;
(b) provided information regarding an internal investigation or external agency investigating a discrimination complaint;
(c) reasonably asserted their rights or supported someone else’s rights under anti-discrimination laws.
(See also allegations of victimisation under whistle-blower provisions in 8.1 Wrongful Dismissal Claims.)
Burden of Proof
In Australia, successful claims of discrimination must be proved on the balance of probabilities. Complainants alleging direct discrimination are generally required to establish all the elements of the offence. The onus in claims of indirect discrimination under the Disability Discrimination Act 1992 (Cth), Sexual Discrimination Act 1984 (Cth) and Age Discrimination Act 2004 (Cth) is on the employer to prove that the condition, rule or policy was reasonable, having regard to the circumstances of the case.
Damages available in discrimination proceedings generally include:
Other relief in discrimination claims include declarations, injunctions, a variation of contract (in limited circumstances), apologies and retractions.
Fair Work Commission
The FWC is a specialist employment tribunal which is responsible for conciliating and arbitrating collective and individual employment disputes.
As previously noted, the FWC has jurisdiction to conciliate and arbitrate unfair dismissal claims. The conciliation of general protections' claims is usually commenced in the FWC, which may arbitrate the claim if both parties consent.
Class actions or “representative proceedings” for employment law matters are becoming increasingly common in Australia. Class actions in the Federal Court may be commenced where seven or more people have a claim against the same person. The claims must: (i) be in respect of or arise out of the same, similar or related circumstances and (ii) give rise to a substantial common issue of law or fact, both being requirements which Australian courts have interpreted broadly to permit representative proceedings. Australian class actions generally operate on an “opt-out” system where all members within the relevant class are bound by the judgment (without needing to obtain their consent to be part of the group) unless they opt out. The court can also order that proceedings should not continue on a representative basis if it is in the interests of justice to do so (for example, where the costs of individual actions would be less than the class action).
In court proceedings, a party is generally entitled to be represented by a legal practitioner. In some employment proceedings, a party is not entitled to be represented, such as claims for amounts under the FW Act or a modern award where the amount which may be awarded by the court is less than AUD20,000.
Similarly, a party is not entitled to be represented by a legal practitioner in proceedings before the FWC without the permission of the FWC.
The parties are generally free to agree to have disputes arising between them determined through arbitration. This includes pre-dispute agreements including employment contracts. Where the parties have agreed to settle a particular dispute through arbitration and an action is nonetheless brought before a court, the court will generally stay those proceedings and instead refer the dispute to arbitration in accordance with that arbitration agreement.
The FWC has a general power to order a party to pay the legal costs of another party where: (i) the applicant’s claim (or the other party’s response to the claim) was vexatious or without reasonable cause and (ii) it should have been reasonably apparent to the party that its position in the proceedings had no reasonable prospect of success.
The Federal Circuit Court or Federal Court of Australia has similar powers to make an order of costs in favour of the successful party for claims arising out of the FW Act.
The FWC has additional powers to award costs in respect of particular proceedings. For example, the FWC may award costs in respect of an unfair dismissal claim against a party if their unreasonable act of omission in relation to their conduct in the proceedings caused the other party to incur costs.
There are similar limitations on the court’s power to award costs in matters arising under the FW Act (such as a general protections' claim).
In claims for breach of contract, successful parties may receive a costs award in their favour on an indemnity or party/party basis for claims made in the State, Territory or Federal Court (see 8.1 Wrongful Dismissal Claims).
The impact of the coronavirus global pandemic (COVID-19) has led to substantial changes to the workplace relations legal landscape in Australia. In addition to the implementation of new laws to provide greater flexibility to employers during the COVID-19 restrictions and economic downturn, COVID-19 has brought workplace relations reform to the forefront of political agenda. Further, the shift towards “flexible” work arrangements and the imposition of electronic court processes to accommodate “social distancing” requirements will likely shape the nature of the “workplace” and the conduct of litigation in the future.
Outside of COVID-19, as in other jurisdictions, the management of employees’ use of social media and the balance of “freedoms” has garnered attention in high-profile dismissals. Australia has also seen a rise of the “Gig Economy” and continues to grapple with the classification of these work arrangements.
These trends and developments in an Australian context have been explored below.
COVID-19 Pandemic – Changes to the Legal Landscape
The JobKeeper scheme
In response to the adverse economic consequence of COVID-19 on businesses, the Australian Federal Government implemented the JobKeeper Payment scheme on 30 March 2020. This was a temporary subsidy for businesses significantly affected by the COVID-19 pandemic which allowed eligible employers, sole traders and other entities to apply to receive AUD1500 per eligible employee per fortnight. At the time of its creation, this payment was designed to be a temporary measure that would end in or around September 2020; however, it has been extended (in part) to March 2021 at a reduced rate.
While the number of employees in receipt of JobKeeper has been subject to debate, it is understood that approximately 3.5 million workers benefited from a JobKeeper payment over the April to May 2020 period. The Australian Government Treasury has reported that this represents approximately 30% of private-sector employment in Australia as at February 2020.
JobKeeper enabling directions
To assist employers who qualify for the JobKeeper scheme to respond to the impact of COVID-19 on their business, temporary amendments were inserted into the Fair Work Act 2009 (Cth) to allow employers to alter unilaterally the working conditions of employees (following consultation with an employee) by issuing a JobKeeper Enabling Direction.
A JobKeeper Enabling Direction can be used in certain circumstances to alter an employee’s:
The discretion to issue an enabling direction is subject to several conditions and will not apply to an employee if the direction is unreasonable in all of the circumstances.
By way of example, in respect of a JobKeeper Enabling Stand Down Direction, in addition to being reasonable in all the circumstances, it can only be issued if the employee cannot be usefully employed for the employee’s normal days because of changes to the business attributable to the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19. Further, the implementation of the stand-down direction must be safe, having regard to (without limitation) the nature and spread of COVID-19.
As these directions are linked to the objectives of the JobKeeper payments, these directions are temporary measures and their operation will cease on 29 March 2021 if not otherwise revoked (or extended) prior to this date.
In Australia, the minimum terms and conditions of employment for employees working across a range of industries are set out in over 100 industry or occupation-specific modern awards. In early April 2020, the Fair Work Commission made amendments to the majority of these modern awards to insert a range of temporary measures that provide flexibility and assist businesses manage their workforce during COVID-19.
These measures included provision of up to two weeks’ unpaid pandemic leave and the capacity to take annual leave at half pay in order to increase a period of annual leave two-fold. Specific awards were the subject of further amendments to increase flexibility in relation to annual leave, the reduction of hours and to facilitate close-down and working-from-home arrangements.
The onset of COVID 19 has seen a swift transition by legal practitioners and the court to electronic hearings. While the electronic conduct of a trial has been described by the judiciary as tedious, inconvenient, aggravating and sub-optimal, in the absence of any real risk of practical injustice, these factors have not constituted grounds to adjourn listings and have led to the imposition of electronic hearings on unwilling parties.
Requests for adjournments have led to courts considering the difficulties arising from technological limitations (such as intermittent internet connections), physical separation of legal teams, electronic evidence and cross-examination of lay and expert witnesses, restrictions on the ability to obtain instructions and document management concerns. While recent case law has acknowledged the challenges that arise in the conduct of large contested hearings electronically, such challenges were not considered to be insurmountable in every case and in some cases have been refused.
Despite the presence of case law underpinning the unsatisfactory nature of cross-examination by video-link, courts have embraced the use of various platforms such as Microsoft Teams, Zoom and Webex for the provision of oral evidence and cross-examination. In some cases, courts have described how the use of technology has allowed for greater consideration of witness facial expressions due to the proximity of the camera compared to the witness box. While this will not be appropriate in all cases, the present circumstances have led to greater consideration of the suitability of technology in the conduct of complex contested litigation.
As the restrictions and health and safety measures currently in place have allowed courts and legal practitioners to overcome perceived barriers to the availability and suitability of remote technology, this may lead to change in litigation norms and procedures moving forward.
Industrial relations reform
In Australia, the Fair Work Act 2009 (Cth) (the FW ACT) imposes mandatory minimum terms and conditions for employment through the National Employment Standards, modern awards and enterprise agreements. As noted above, there are over 100 industry or occupation-specific awards that set out the minimum terms and conditions of employment for employees covered by those terms. In some workplaces, a single award may not apply to all employees and employers will need to be aware of the obligations arising under multiple awards.
This is a national system that applies to the majority of employees in Australia (referred to as National System Employees) but is subject to specific exemptions in each Australian state and territory (such as state government employees).
As may be apparent from the above, the industrial relations system in Australia is complex and is arguably in need of reform. Driven by the successful collaboration with unions and stakeholders in the implementation of the JobKeeper Scheme, the Federal Government announced a consultation process for industrial relations reform in the following areas:
While the consultation process is in its early stages, such reform has the potential to lead to significant changes to the industrial relations system in Australia.
Freedom of Speech and Religion
It may come as a surprise that many of the rights enjoyed by individuals in Australia are not enshrined in the Australian Constitution, nor are they otherwise positively provided for in statute. There is no “Human Rights Act” or equivalent in Australia. Instead, there are several express and implied rights/freedoms (such as the implied freedom of political communication) contained in the Constitution and a range of state, territory and federal laws protecting individuals from various acts of discrimination. Examples of these Acts include the Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth).
In respect of religion, the Constitution provides some protections in that the Commonwealth is unable to make laws for establishing any religion, for imposing any religious observance, prohibiting the free exercise of any religion and states that no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The right to “Freedom of Speech” and “Freedom of Religion” in an employment context was thrown into the spotlight following the dismissal of “Wallabies” star Israel Folau by Rugby Australia. The basis for this termination was a social media post that was alleged to have constituted a “high-level” breach of the players' “Code of Conduct”. The social media post in question proclaimed that hell awaits for “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”.
Mr Folau, a devout Christian, lodged an unlawful dismissal claim on the basis that he was dismissed for reasons including “religion”. While this claim was ultimately settled out of court, it raised questions relating to whether (or to what extent) an employment contract could prevent an expression of discriminatory religious beliefs and further, how freedom of religious expression should be balanced against other laws in place to prevent discrimination of other individuals.
The question of protection of “religious beliefs” is currently the subject of the controversial Religious Discrimination Bill 2019 (Cth). While there are some existing protections contained in the Australian Constitution as noted above, this bill (if made law) will make it unlawful to discriminate on the basis of religious belief or activity in specified areas of public life (subject to a number of exceptions).
A number of groups have opposed the implementation of the legislation and have otherwise expressed concern that the proposed bill does not give appropriate weight to all human rights in a way that protects the community equally.
Of note, the outline released by the Federal Government states that the bill “ensures that the ability of people to express their religious beliefs in good faith is protected from the operation of Commonwealth, state and territory anti-discrimination laws” if a statement is reasonably considered to be in accordance with the doctrines of the person’s religion. However, these provisions are not intended to protect statements that are malicious, would harass, threaten, seriously intimidate or vilify a person or group.
As the Federal Government continues to grapple with balancing competing rights, the implications of this proposed legislation will need to be considered in an employment law content, should it be made law.
The Rise of the Gig Economy
Recent data released by the Victorian State Government suggests that the “Gig Economy” is on the rise in Australia with a survey revealing that approximately 7% of participants had used a digital platform to find and perform work in the previous twelve months.
The so-called “Gig Economy” refers to the growing areas of work involving temporary or freelance engagements of work in areas such as transportation, food delivery, off jobs and even professional services. Everyday consumers are able to engage these services through digital platforms, the most popular being Airtasker, Uber, Freelance, Uber Eats and Deliveroo.
The crucial element of the gig economy from an employment law perspective is the fact that the workers are strictly engaged as independent contractors, not employees. This classification has been the subject of numerous challenges before the courts as workers seek to obtain the protections (including unfair dismissal) and entitlements afforded to “employees” in Australia.
As has been the case in a range of international jurisdictions, the classification of Uber drivers has been challenged, albeit unsuccessfully, in Australia. In making these decisions, the Fair Work Commission considered various factors to determine the relationship between the drivers and Uber, using the "multi-factorial test" set out in the French Accent case before the previous industrial relations tribunal, Fair Work Australia. The multi-factorial test looks at factors including the level of control over the person, if the person provides their own tools and equipment, if the work can be further delegated or subcontracted, if they can perform work for others and if the other party can suspend or dismiss them. In all three cases the Fair Work Commission decided that the drivers were independent contractors, pointing to factors such as the ability of drivers to log in and out of the Partner App, to control their hours of work, the ability to refuse trip requests, along with other factors such as no requirements to wear uniforms, display branding and being able to work for other companies as indicative of there being a contracting relationship.
In the most recent case of Gupta v Portier Pacific; Uber Australia Pty Ltd t/a Uber Eats  FWCFB 1698, the Full Bench similarly found that an Uber Eats delivery driver was not an “employee” and hence not a person protected by unfair dismissal.
Although the Fair Work Commission found no strong arguments in favour of a finding that these drivers were employed by Uber, the Fair Work Commission’s comments in the case of Kaseris v Rasier Pacific V.O.F  FWC 6610 indicate that the traditional dichotomy of independent contractor/employee that has developed in Australian law may be outdated in the face of economic and societal changes which have manifested into the gig economy.
On the flipside of these cases is the decision of the Fair Work Commission in Klooger v Foodora Australia Pty Ltd  FWC 6836. Foodora was another participant in the gig economy, providing a food-delivery service through a network of delivery riders and drivers. The applicant delivery rider was successful in establishing that he was an employee of Foodora and in doing so was successfully able to make an unfair dismissal claim. The Fair Work Commission found after applying the multi-factorial test that Foodora’s rostering system exhibited a high degree of control over the riders, with no ability for them to work outside of those hours or locations. The riders were also required to use branded attire and equipment, and the employment contract was drafted in such a way that it contained provisions which closely resembled an employment contract.
This issue is again before the courts in the form of a sham contracting case in the Federal Circuit Court against another delivery service, Deliveroo. In this matter, the applicant rider has claimed that he is in fact a casual employee and is therefore entitled to higher rates of pay along with other entitlements. This matter is currently listed to be heard in November 2020.
The growing areas of case law surrounding the gig economy and discussions of reform reflect a growing sentiment that changes may need to be made to how these workers are classified and is likely to be an area of future legislative reform.