In a recent decision of the Federal Court in Van Efferen v CMA Corporation Ltd [2009] FCA 597, Justice Tracey considered a claim for damages for a breach of an Australian Workplace Agreement and also whether the term of good faith is implied into a contract of employment.

The case dealt with a barge master employed at Port Hedland and various difficulties which he had in relation to his position at the port and his ultimate termination said to be because of redundancy (at [17]). The applicant said his termination was brought about through difficulties which had taken place on the Dolphin Project at Port Hedland and had nothing to do with the fact he had been returned to CMA’s premises at Geelong where there was no work for him to perform. It was said on behalf of the company that he needed to be transferred from the Dolphin Project as his behaviour was such that it put into doubt the continued business relationship the company had with its client and in order to ensure the effect of operation of the project.

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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division v Australia Postal Corporation [2009] AIRCFB 145 (11 February 2009).

This appeal before the Full Bench of the Australian Industrial Relations Commission comprising the President, Justice Giudice, a Deputy President, Mr Hamilton and Commissioner Spencer handed down in Melbourne on 11 February 2009 deals with the often difficult and touchy subject of an application that a member of a Tribunal withdraw on account of “apprehended bias”. This case involved Australia Post introducing a new delivery operations program known as Future Delivery Design (FDD). Australia Post had invited the Union, the CEPU, by letter to a briefing it proposed to give to Commissioner Foggo. [...] Continue Reading…

Australian Workers Union of Employees, Queensland v. Ethridge Shire Council (No 2) [2009] FCA 58 (6 February 2009).

This is a judgment dealing with costs of a successful action brought by the Australian Workers’ Union of Employees against Etheridge Shire Council. In the primary case, Australian Workers’ Union of Employees, Queensland and Ors v Etheridge Shire Council and Anor (2008) 171 FCR 102; 250 ALR 485; 175 IR 383, the Queensland Branch of the Australian Workers’ Union (AWU) was successful in arguing that the Etheridge Shire Council was not a trading corporation within the terms of the Constitution and was therefore not an employer for the purposes of the Workplace Relations Act 1996 (Cth). The AWU was successful and, as a consequence, sought its costs. The Respondent Council sought to avoid the “usual order as to costs” on two bases. First, it relied upon s 824 of the Workplace Relations Act 1996 which says that costs are only awarded when proceedings are instituted vexatiously or without reasonable cause. [...] Continue Reading…

On 13 February 2008, Julia Gillard, the Minister for Employment and Workplace Relations, introduced into Parliament, the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008. Attached to the introduction of the Bill is a 98-page Explanatory Memorandum. This Bill introduces the first tranche of amendments to the Workplace Relations Act. Further amendments are foreshadowed for later in the year. [...] Continue Reading…

Last week I had an at times boisterous dinner with two colleagues with whom I had started at the Bar in 1982. Back when we were readers, it was inconceivable to imagine 25 years into the future. In that period, we have conducted busy, diverse practices. The life of a barrister is both interesting and rewarding but, at times, exhausting, stressful and uncertain. Professionally and personally, there have been good and bad times. As a quarter of a century veteran, what advice can I give to someone commencing this career so as to maximise the good and minimise the bad times? [...] Continue Reading…