2024 Volume 37 Issue 1

Abstract

This article considers whether workers engaging in picketing are protected by carve-outs to anti-protest measures introduced by the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), the Right to Farm Act 2019 (NSW) and the Roads and Crimes Legislation Amendment Act 2022 (NSW), given the different interpretations of ‘industrial action’ preferred by courts in interpreting the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1996 (NSW). In particular, this involves an exercise in statutory interpretation, considering whether the ‘industrial action’ carve-out to statutory obstruction offences and the carve-out for ‘activities permitted under the Industrial Relations Act or the Fair Work Act’ to statutory trespass offences are capable of protecting workers engaging in industrial pickets.

Abstract

Industrial relations legislative reform at the federal level occupied considerable attention in 2023, with the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) and Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) introducing a raft of changes to the Fair Work Act 2009 (Cth) and other legislation. The States and Territories, however, also continued on their own reform pathways over the last 12 months. Increasing protections for workers was the primary focus across state lines, with New South Wales, South Australia, Tasmania, Western Australia and the Australian Capital Territory all passing legislation that, in one way or another, bolstered the operation of their anti-discrimination, work health and safety, and workers compensation frameworks. The treatment of public holidays was updated in South Australia and the Northern Territory. The Australian Capital Territory expanded its portable long service leave scheme, and New South Wales passed legislation to reestablish its Industrial Court.

Abstract

The most significant case law of 2023 concerned the Fair Work Commission’s (FWC) interpretation of the Albanese Government’s recent ‘Secure Jobs, Better Pay’ bargaining legislation. In this respect, the Commission indicated its approach to multi-employer bargaining, pre-strike conciliation conferences and intractable bargaining disputes and reiterated its approach to wage-setting industrial arbitration. The courts made a series of other significant decisions, including the reversal of a 2022 judgment regarding rights of entry and decisions regarding labour hire regulation, public holidays and long service leave. The High Court’s decision in the ongoing Qantas case confirmed that s 340(1) of the Fair Work Act 2009 (Cth) protects both present and prospective workplace rights against adverse action. And Victoria’s recent wage theft legislation was tested in the High Court on constitutional grounds, only for the very first wage theft prosecution to be abandoned. With respect to the individual contract of employment, the FWC applied the ruling of the High Court in last year’s landmark Personnel Contracting case and a State Supreme Court set a major precedent in the realm of employee fiduciary duties. Further noteworthy decisions affected the link between outsourcing and redundancy, working from home, out-of-hours conduct and post-employment restraints.

Abstract

After providing some background, which helps to characterise the comparative and historical distinctiveness of contemporary minimum wage determination in Australia, this commentary explores three main features of the 2023 Decision: the unusual economic circumstances in which it was delivered, the new emphasis on the needs of low-paid workers and, most significantly, the new gender-related objectives the Decision was obliged to achieve.

Abstract

An individual exposed to the imposition of a penalty in proceedings under the Fair Work Act 2009 (Cth) is entitled to claim privilege in relation to responding to claims made against them. This article examines when such a claim may be made, the form of pleading required and the implication of doing so. Comment is also made on the impact of pleading, on the ability to defend different types of proceedings that may be brought, and the evidential inferences that might be drawn as a result of claiming privilege, including the impact on other parties.