Powers and procedures: courts and tribunals decide

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Powers and procedures: courts and tribunals decide

Matters of a technical and procedural nature can determine the outcome of certain employment litigation. Questions of evidence, jurisdiction and definition are noted here.

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Matters of a technical and procedural nature can determine the outcome of certain employment litigation. Questions of evidence, jurisdiction and definition are noted here.

Tribunal criticises poorly presented evidence
NSW Court of Appeal powers limited re IRC
IR agenda required before FWC finds ‘industrial action’
Court can consider safety issues when setting fines
Video hearing request denied

Tribunal criticises poorly presented evidence
 
The FWC expressed concern with the nature and content of the evidence presented by the employer and its advocate in relation to the support evidence for the relevant agreement and other evidential inadequacies. The draft agreement was lodged without wage rates, penalties, overtime or allowances and did not meet the BOOT.
 
The commissioner was also critical of a statutory declaration signed by a company director as it was not up to the standard expected by the tribunal.

JY Food & Entertainment Group Pty Ltd 
[2014] FWC 2408 (14 April 2014)
 
NSW Court of Appeal powers limited re IRC
 
The Court of Appeal declined to intervene to overrule the NSW Industrial Relations Commission’s ruling in respect of the redundancy of a correctional services officer.
 
The legislation supposedly allowing this intervention was faulty in the court’s view.

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 
[2014] NSWCA 112 (8 April 2014)

IR agenda required before FWC finds ‘industrial action’
 
A full bench of the Fair Work Commission found the motivation of the Vic Police Force was not driven by an industrial agenda, therefore the action did not qualify as industrial action.
 
After a review of the force's various bands, Victoria Police decided to effectively create 45 frontline operational roles by compulsorily transferring the musicians out of the bands.
 
Victoria Police successfully argued the issue at stake was the purpose or motivation of its action to transfer the band members and that was not the prosecution an industrial agenda, but to achieve an organisational objective outside a bargaining context.
 
Police Federation of Australia v Victoria Police/Chief Commissioner of Police [2014] FWCFB 2063 (11 April 2014) 
 
Court can consider safety issues when setting fines
 
The Federal Court fined the CFMEU $61,000 for unlawful industrial action but acknowledged that in fixing penalties, the court was to ask itself "where on the scale of unlawfulness the particular action fell”.
 
Justice North said both sides agreed the purpose of the strike was an attempt to benefit a worker and this fact was relevant to the decision the court must ultimately make and to the severity of the civil penalty imposed, and should be taken into account.
 
"It demonstrates that the contravention is of a lower magnitude of wrongdoing than a contravention in which the motivation for the industrial action was for some entirely self-interested purpose."
 
Brookfield Multiplex FSH Contractor Pty Limited v McDonald [2014] FCA 359 (11 March 2014)

Video hearing request denied
 
The Federal Circuit Court ruled this matter was not an appropriate one for video evidence:
 
"On balance, having regard to the nature of the evidence in this case; the fact that all of the evidence, and the entirety of the case, is sought to be heard by video-link hearing; the likely length and factual complexity of cross-examination of the primary witnesses… the fact that Ms P is a self-represented litigant, albeit one qualified in the law, but without practical experience as a litigator; and the necessity to assess credit, particularly of Ms P … the court considers that those factors weigh against a five-day hearing being conducted entirely by video-link hearing, and outweigh other factors…"
 
Picos v HealthEngine Pty Ltd & Anor [2014] FCCA 640 (4 April 2014)

The bottom line: Legal advice is needed to proceed in litigation involving technical issues that can determine the outcome of a case.
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