Moir, Matthew --- "Editorial: The long arm of industrial law" [2021] PrecedentAULA 24; (2021) 164 Precedent 2

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THE LONG ARM OF INDUSTRIAL LAW

By Matthew Moir

This edition of Precedent encompasses some of the main issues in industrial law over the past 12 months.

Sophie Ismail has written a strong article about how the COVID-19 pandemic has exposed and exacerbated the structural inequities affecting women workers. The national gender pay gap remains high, at well over 10 per cent.

Diana Costaras writes about another area affecting women in the workplace – sexual harassment and sexual assault, and the potential legal avenues against both the alleged perpetrator and the employer. This is an area that has recently been brought into national focus by the powerful stories of young women such as Grace Tame and Brittany Higgins. Courts are responding to wider societal trends and treating sexual harassment claims seriously, with significant awards of damages.

Sexual harassment allegations, and other misconduct allegations in the workplace, will invariably require an investigation to be carried out. Elaine Arcaro and Katie Gardiner succinctly describe the key features of workplace investigations, including the role of the investigator and the ability of an employer to compel its employees to participate in the investigation.

Speaking of ‘serious misconduct’, Naomi Riggs discusses recent decisions of the Fair Work Commission on the meaning of this phrase and provides the most memorable quote of this edition: ‘Frankly, if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.’^[1]

For many years now, criminal law has played only a limited, residual role in the law of employment, with the notable exception of work health and safety legislation. COVID-19 has appeared to inspire an atmosphere of reformist activity, at least for a short while.

Tom Roberts examines the recent legislative push to criminalise ‘wage theft’ in the context of the Federal Government’s Omnibus Bill to amend parts of the Fair Work Act 2009 (Cth) (FW Act). He argues that the proposed new offence dealing with wage theft was flawed because of its limited scope and the difficulties for a prosecution in establishing elements of the offence. These arguments help to explain why this aspect of the Bill failed to attract support in the Parliament.

One aspect of the Omnibus Bill that was passed into law were the casual employment provisions discussed by Evan Willis and Charlie Schaffer, including the new definition of ‘casual employee’ and the disallowance of double dipping. These provisions are considered in the context of the High Court’s forthcoming decision on the meaning and entitlements of a ‘casual employee’ in the Rossato litigation.^[2]

The emergence of the ‘gig economy’ is often at the heart of concerns that workers are not receiving their lawful entitlements. Daniel Stojanoski has written an excellent article on the classification of workers in the gig economy, exploring recent decisions in Australia and overseas dealing with Uber drivers. These decisions highlight that one of the oldest chestnuts in employment law – whether a worker is an employee or an independent contractor – still has much relevance in our modern economy.

Another issue of undeniable importance in industrial law litigation is costs. Glenys Jardine provides a comprehensive overview of the rules relating to costs in employment matters. It is sometimes overlooked that, while costs are not generally awarded in proceedings under the FW Act, a successful employee can be awarded penalties imposed by a court for contraventions, which helps to defray the costs of litigation.

Finally, Dr Andrew Newman has written an insightful article on how industrial law has a meaningful impact on temporary migrant workers engaged in the Australian Seasonal Worker Program (ASWP). Dr Newman’s research found that the Horticulture Award – the main industrial instrument for ASWP workers on farms – has provided comparatively decent wages for ASWP workers via piece rates, casual loadings and classification progression.

So it is good to end on a positive note!

Matthew Moir is a barrister at the NSW Bar, specialising in employment law, anti-discrimination law, and work health and safety prosecutions. PHONE [phone] EMAIL [e-mail]

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^[1] Trudi Puszka v Ryan Wilks T/A Ryan Wilks Proprietary Limited [2019] FWC 1132, [62] (Cambridge C).

^[2] Workpac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 378 ALR 585.