The Supreme Court of Victoria has established a specialist Employment and Industrial List, which commenced on 1 January 2016. The list will manage proceedings involving employment contracts, breaches of confidence, and employment-related misleading and deceptive conduct.
It will also deal with allegations of “interference with contractual relations, industrial torts, secondary boycotts, and related contempt proceedings”. These are claims typically directed against industrial action taken by workers and their trade unions.
The establishment of the list comes after criticism by former High Court judge Dyson Heydon in the interim report of his Royal Commission into Trade Union Governance and Corruption, known as TURC. (This controversial inquisitorial body was criticised for political bias after Heydon agreed to speak at a Liberal Party fundraiser, but he cleared himself of wrongdoing and continued its hearings.)
Heydon claimed “extraordinary delay” in the Supreme Court’s hearing of industrial torts and related matters “will make the Australian legal system a laughing stock” and called for “consideration to be given to procedures which ensure swift determination of contempt applications”.
These comments were made in relation to a case study of a long-running and high-profile dispute between construction company Grocon and the Construction, Forestry, Mining and Energy Union (CFMEU) over the appointment of safety representatives. This dispute culminated in a massive protest outside the Myer Emporium construction site, and led to Grocon suing the CFMEU over industrial torts, secondary boycotts, and related contempts.
Grocon was represented in the Supreme Court by Michael McDonald SC. He was subsequently appointed to the Supreme Court Trial Division, and is the inaugural Judge in Charge of the Industrial and Employment List.
On Anzac Day, SBS sports journalist Scott MacIntyre made a series of posts on his personal Twitter account, criticising the historical behaviour of Australian soldiers, and people who celebrate the day. While his comments reflected the views of some historians, he was nevertheless sacked by SBS for breaching its social media policy. The president of the Australian Human Rights Commission, Gillian Triggs, explains that while the High Court has recognised an implied Constitutional freedom of political communication, it “is not a personal right for citizens. Rather it is a constitutional limit on the legislative powers of Parliament.” Therefore, an employment contract can restrict speech. Human Rights Commissioner Tim Wilson argues it is “absurd” to see this as “a free speech violation”, because “[n]o one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation”, even if that behaviour is outside the workplace. Swinburne University’s Jason Wilson says this “classical liberal” approach to human rights is flawed, because “it makes little practical difference if it’s your boss or the state telling you to shut up”. He argues the current system “puts the wealthy firmly in charge of the lower orders, without any pesky democratic interference.” (While the High Court has not directly addressed this issue, in 2013 a Federal Court judge ruled that the implied freedom “does not provide a licence to breach a contract of employment”.)
Journalists and photographers at Fairfax Media, which publishes newspapers including The Age and the Sydney Morning Herald, have gone on strike for 24 hours. They are protesting against the company’s decision to cut costs by laying off another seventy workers. Under the Fair Work Act 2009 (Cth), industrial action is a “protected” right only when negotiating a new employment agreement after the old one has expired (usually every 3-4 years). Strikes outside this bargaining period are unlawful, even if they are directly related to changes in employment conditions, and participants can be penalised. Fairfax is threatening to sack staff who do not attend work today.