Introduction
While 2025 is certainly underway, this article looks back to 2024 for those keen to catch up on case law developments last year.
Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27
“At a high level of generality, the historical arc of the protections against adverse action has generally tended to expand the scope of workplace rights, [and] the classes of persons who are covered by the general workplace protections…” [20]
This 2023 case is so important that we have included it in our 2024 case review. Below we explain why.
In November 2020, Qantas decided to outsource its ground handling operations, later resulting in the termination of around 1700 employees, many of whom were Transport Workers’ Union members. One group of affected employees was prohibited from protected industrial action at the time the outsourcing decision was made because their enterprise agreement had not yet passed its nominal expiry date.
Qantas lost both the initial decision and appeal decision. It then appealed to the High Court. Here Qantas effectively argued that it could not have made the outsourcing due to employees’ right to take industrial action. This was because the hypothetical future workplace right to take industrial action had not yet materialised when the outsourcing decision was made.
The High Court disagreed. It effectively held employees’ future rights are capable of protection under the Fair Work Act 2009 (Cth) (FW Act) where an employer takes adverse action against employees to prevent the exercise of a workplace right. Indeed, section 340(1)(b) of the FW Act effectively says as much. It did not matter that the workplace right to take industrial action had not yet materialised when Qantas made its outsourcing decision.
For employers, this decision serves as a reminder that adverse action should not be taken against employees because of future workplace rights that are yet to materialise. An example is dismissing an employee because they will soon have access to unfair dismissal protection upon the conclusion of their probationary period.
United Firefighters’ Union of Australia v Fire Rescue Victoria T/A FRV [2024] FWCFB 43
“The existence of the Victorian Government’s wages policies in force from time to time is a “notorious fact” that industrial bargaining parties in Victoria affected by those policies can be taken to know about.” [161]
In 2023, the United Firefighters Union (UFU) applied for an Intractable Bargaining Declaration (IBD) with the Fair Work Commission (FWC) after two years of unsuccessful negotiations with Fire Rescue Victoria (FRV).
The parties did not reach an agreement during the two-week negotiation period following the IBD. Accordingly, the FWC was required to make an intractable bargaining workplace determination. But to do this, the Commission first had to work out what terms that had been agreed between UFU and FRV and those that had not.
A Full Bench of the FWC (FWCFB) determined that no agreed terms existed at all under section 274 of the FW Act, primarily due to FRV’s obligation to comply with the Victorian Government’s wage policy. As a Victorian Government Agency, FRV is bound by the widely known Government’s wage policy. UFU’s appeal to the Federal Court was unsuccessful.
Although this decision concerns a Victorian public sector employer, it provides several valuable lessons for private sector employers who must deal with threats of IBD applications and their potential consequences.
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 253 (Peabody) – under appeal to Federal Court
“Unlike Peabody, Delta Coal’s Chain Valley mining operation essentially exists for a different purpose compared to the operations of the other Respondent Employers and this is a factor that, in our view, carries significant weight.” [664]
(emphasis added)
Under section 248 of the FW Act, a relevant union can apply for a single-interest employer authorisation for a multi-employer enterprise agreement. Once granted, employers must engage in good-faith bargaining for at least 12 months. For an employer, being subject to an authorisation is a big deal.
In the Peabody case, an application was made to include multiple NSW based coal mining companies, including Peabody and Delta Coal, in one agreement.
One of the criteria for FWC to grant such authorisation is that the employers must have clearly identifiable common interests. The FWCFB ruled that Delta Coal did not share common interests with the others due to operational differences (e.g., Delta Coal was non-export focus and loss-making). In contrast, Peabody, Ulan, and Whitehaven had common interests due to, amongst other things, similar mining methods and markets.
Subject to the appeal outcome of this case and further case law developments, the common interest requirement appears to be a relatively low bar. As a general proposition, the purpose for which an organisation exists appears to be a key factor in deciding whether two or more businesses are common interest employers.
Alouani-Roby v National Rugby League [2024] FCAFC 161
“Courts will apply the contractual primacy principle in the High Court’s decision in WorkPac v Rossato in assessing whether there was a dismissal of an employee subject to an outer limit contract.”
This case involved an ex-National Rugby League (NRL) referee, who had been employed on five consecutive outer limit contracts from 2015 to 2020. An outer limit contract is one that has a start and end date, but can be terminated early on notice.
When the referee’s contract was not renewed in 2020, he filed a general protection claim for dismissal. The NRL effectively argued that it did not dismiss the referee as his employment ended automatically at the expiration of the last contract. Alternatively, the referee’s employment was for a specified period of time.
A Full Court of the Federal Court effectively confirmed that the referee’s employment was for a specified period of time, meaning there was no dismissal. It also applied the contractual primacy principle as per WorkPac v Rossato in interpreting the contract’s terms.[1]
The decision gives comfort to employers who correctly use fixed or outer limit contracts. Of course, employers must comply with FW Act obligations that restrict the use of these contracts for no more than 2 years or 2 contracts (some exceptions apply).
Elisha v Vision Australia Limited [2024] HCA 50 (Vision Australia High Court Decision) Milonas v Monash Health [2024] VSCA 57 (Milonas)
“Whilst employers have dodged a bullet in respect of the Vision Australia High Court Decision regarding whether a duty of care is owed in investigations and disciplinary processes, the Court of Appeal’s decision in Milonas remains that, generally, no duty of care is owed in relation to investigations and disciplinary processes.”
Vision Australia High Court Decision
An employee who suffered a major psychiatric condition was initially awarded $1.44 million in damages for breach of contract by the Supreme Court of Victoria. However, the Court of Appeal overturned the decision, ruling the damages were too remote.
The employee appealed to the High Court. Among other issues, two important questions emerged:
- whether Vision Australia’s policies were incorporated into the employment contract; and
- whether employers owe a general duty of care to employees when conducting workplace investigations.
Regarding the first question, the HCA held the employment contract incorporated disciplinary policies despite the policies including some aspirational parts.[2] Drafting weaknesses in the employment contract were key to the Court’s finding.
For the second question, the High Court held there was no need to consider whether a duty of care was owed.[3]
However, as a very broad proposition, employers continue to not owe a duty of care as explained in the next case.
Milonas
Here, an employee was dismissed after 36 years of employment based on allegations of falsifying timesheets and rosters. She claimed negligence and breach of contract due to the investigation process and argued that policies were incorporated into her employment contract.
However, the Court of Appeal of the Victorian Supreme Court held otherwise.
Unlike Vision Australia High Court Decision, there was no evidence to suggest the terms of the policies were incorporated into the employment contract.[4] The court also emphasised that employers generally do not owe a duty of care during investigations and dismissals.[5]
The takeaway point to these decisions is employers should avoid inadvertently incorporating policies into employment contracts. Where appropriate, policies should also avoid promissory language.
Conclusion
2024 was another big year for employment case law. As the momentum continues in 2025, employers should stay vigilant, particularly regarding developments in enterprise bargaining case law.
Adam Colquhoun (Principal) and Jolin Chao (Law Clerk).
This article is general information only. It is not legal advice. If you need legal advice, please contact us.
Citations:
[1] 271 CLR 456.
[2] Vision Australia High Court Decision [46].
[3]Vision Australia High Court Decision [3].
[4] Milonas [129].
[5] Milonas [148].
