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Summer Newsletter 2019

Welcome to State Chambers’ Summer Newsletter: The Christmas Issue!
Since our last Newsletter, Glenn Fredericks presented a great CPD on the “ambiguity gateway” and the divergence of opinion amongst Australian Courts on this issue concerning the construction of written contracts. You can view the CPD and read Glenn’s paper via the link below.
Just a note that State Chambers will be closed from Monday 23 December until Monday 6 January 2020. In the event your matter is urgent, we ask that you email our Clerk, Fiona Hayden.
From everyone at State Chambers, we wish all of our subscribers a Merry Christmas and a happy New Year!

Continuing Professional Development Seminars

Most Recent CPD 

“The Ambiguity Gateway”

Presented by Glenn Fredericks
Much has been written about whether language, in general, has an objective meaning.  Wittgenstein wrote that the meaning of a word is its use in the language. However, when the definition of a word turns on the commonly understood parlance between contracting parties, such evidence has traditionally been excluded by courts on the basis of the objective theory of contract.  
In Codelfa Construction, Mason J stated the “true rule” was that evidence of surrounding circumstances was not admissible to assist in the interpretation of a contract unless there was ambiguity.  Since that time, intermediate courts have moved away from the “true rule” on the assumption that Codelfa had been impliedly overruled by subsequent High Court decisions. As it stands, there remains a divergence of opinion on this issue amongst intermediate courts.
Glenn’s very informative CPD explores when and to what extent evidence of surrounding circumstances can be used to aid the construction of contracts, and whether “ambiguity” must be found to exist before such evidence can be considered
CPD Archive

Past CPD events at State Chambers have been recorded
and are available in our archive.

Click here to view the archive
Floor Members Recent Decisions
Richard Kenzie AM QC & Thomas Dixon
In the Fair Work Commission

The Hon. Christian Porter MP, Attorney General and Minister for Industrial Relations v Metropolitan Fire and Emergency Services Board; United Firefighters' Union of Australia [2019] FWCFB 6255

The Federal Minister sought to review a decision of the Commission to approve the making of an Enterprise Agreement which had been opposed on the basis that it contained discriminatory clauses contrary to the requirements of s.195 of the Fair Work Act 2009 (Cth). The Commission at first instance found that some clauses were indirectly discriminatory, but held that the scope of s.195 was confined to terms that had a directly discriminatory effect. As a result of modifications made to the agreement by way of undertakings and variations, the Full Bench refused the Minister’s application as the changes made removed the very grounds upon which the findings of indirect discrimination were based. The decisions arising from these proceedings remain the leading cases in the Commission on the s.195 requirements conditioning the approval of enterprise agreements.

Thomas Dixon
In the NSW Court of Appeal

Martinez as trustee for the HWL Ebsworth Practice Trust v Griffiths [2019] NSWCA 310
This was an appeal from a decision in which a former partner of a major law firm was awarded $450,000 in damages for the repudiation of his contract. The Court at first instance found that, due to the summary termination of his engagement, the Plaintiff had lost the “benefit of incumbency” which prevented him from securing more beneficial employment than he was eventually able to find. The Court of Appeal was required to engage in a counterfactual inquiry to determine what would have occurred had the contract been lawfully performed. The Court found that the contract would have been terminated at an earlier period of time than the court at first instance had found. The Court also held that the ‘benefit of incumbency’ was not a compensable commercial advantage which supported the award of additional damages based on the loss of a chance to obtain alternative employment on more favourable terms. Damages were reduced to $127,000.

In the Supreme Court of NSW 

Mackinnon as plaintiff representative of 153 plaintiff group members v STC Sports Trading Club (No 8) [2019] NSWSC 1658

This was a class action involving claims by 153 group members to recover loans made to the STC Sports Trading Club. Investors deposited over $29 million into an Australian bank account in the name of STC for the purposes of ‘sports trading’. The investors lost everything. The Court had previously found that the STC scheme was fraudulent, and that the efforts made by a Defendant partner of STC to mask the involvement of the “notorious confidence trickster”, Peter Foster, amounted to false representations. In this decision, the Court found that the false representations made by the Defendant partner amounted to misleading or deceptive conduct which caused the representative Plaintiff’s losses.

In the Full Bench of the WA Industrial Relations Commission 
This case involved an application for a declaration that the Shop Award extended to the retail pharmacy industry. The scope clause provided that the Award applied to the industries carried on by the named respondents to the Award. The last named respondent carrying out activities in the pharmacy industry was removed by the Commission in 1995, however certain pharmacy-related clauses which had applied at the time remained in the Award. The Commission at first instance found that, as a matter of construction, the Award continued to apply to the pharmacy industry. On Appeal, the Full Bench reversed the decision at first instance and declared that the Award did not apply to the pharmacy industry. The Full Bench also held that the Commission had the power to act on its own motion to vary the Award’s scope when removing named respondents that no longer carried on business. In the second decision, the Full Bench varied the Award to remove the vestigial references to pharmacies and chemist shops.

In the Full Bench of the Fair Work Commission

Boris v Metcash Trading Limited t/a Metcash [2019] FWCFB 8213
The Applicant, a store person of some 13 years standing, was unsuccessful at first instance in pursuing a remedy for unfair dismissal. The Applicant was dismissed after he refused to comply with a direction to attend an assessment meeting. He was subsequently contacted on his day off and thereafter challenged the right of his employer to do so. The Applicant had submitted that the investigation into his misconduct was seriously flawed, and that his dismissal was otherwise harsh. On appeal, the Full Bench found that there was a valid reason for the dismissal based on the Applicant’s conduct towards his managers, and that he was afforded procedural fairness because the investigation resulted in findings of fact that were never seriously in dispute. Permission to appeal was refused on the basis that the decision was consistent with principles applied in other Full Bench decisions.

Thomas Dixon & Tammy Wong
In the Federal Court of Australia

Sheehan v Thiess Pty Ltd [2019] FCA 1762

This was a class action involving claims by 151 employees engaged on the Wheatstone construction project near Onslow for overtime payments relating to the journey time from the worksite to the perimeter gates each day over a 16 month claim period. The standard project working hours clause in the enterprise agreement provided that “project working hours shall start at the employee’s prestart and finish at the inside of the site employee access gates”. The Employer had interpreted that clause to refer to the worksite itself rather than the perimeter gates many kilometers away. The Court rejected the Employer’s construction and found that the representative Applicant was entitled to judgment on the basis that he should have been paid for the journey time to the project perimeter. The Court also found that the journey time was 20 minutes in duration. Any alleged lack of precision on the part of the employees in calculating journey time had arisen by reason of the conduct of the Employer, which failed in its statutory obligation to maintain records necessary to support the precise calculation of payments.

This matter involved acting for Sydney Trains in relation to a dispute notified by the Union under an enterprise agreement concerning the introduction of a proposed new switching system for isolating equipment on the Sydney Trains electrical network. The proceedings involved the interpretation of the applicable enterprise agreement, application of Electricity Network Safety Rules, consideration of workplace health and safety issues in relation to working on electrical networks, and the principles applicable to the circumstances in which the Fair Work Commission should intervene in management decisions to change work systems and procedures.

Glenn Fredericks
In the Fair Work Commission
Ingall v Virgin Australia Airlines Pty Ltd [2019] FWC 4947
The Applicant was employed as part of the ground crew at Brisbane Airport. He took personal leave and thereafter remained on unpaid sick leave for some 10 months.  Medical certificates had stated the employee was unable to work, but they contained no details as to why. His employment was terminated by the employer on the basis that he had not complied with directions to attend an independent medical assessment, and because the employer could not be satisfied that the employee could comply with the inherent requirements of his job. The Commission accepted that these grounds amounted to valid reasons for dismissal. The employee’s application was accordingly dismissed.

Ashley-Cooper v Palm Beach Motor Yachts Co P/L [2019] FWC 8305

The Applicant was employed as a metal fabricator. His employer dismissed him on the basis of workplace misconduct including  because he had deflated another employee’s car tyre following a disagreement. After the dismissal, the employer discovered that the employee took some materials from the workplace without permission. The Commission found that this allegation also formed a valid reason for the termination. The Commission found that the dismissal was not unfair despite there being issues as to procedural fairness. The employee’s application was dismissed.
Did you know?

That Christmas was once banned in England?

Christmas had been a time of observing long-cherished rituals and engaging in raucous social behaviour in medieval England. King Henry VIII even wrote a carol called ‘Green Groweth the Holly’.

However, the Puritans who settled the New England colonies from 1620 were contemptuous of Christmas, naming it “Foolstide”. They sanctioned settlers who shirked their work duties and celebrated on 25 December. By 1644, an Act of Parliament effectively banned the festival, and in June 1647 the Long Parliament passed an ordinance confirming the abolition of the feast of Christmas in England. The Puritan laws required that stores and businesses remain open all day on 25 December. The Restoration of King Charles II in 1660 ended the ban.

Centuries later, Western Australia took things to the other extreme by enforcing the solemn observance of Christmas. It is an offence to use any place for “public entertainment or amusement” to which persons are admitted by payment of money on Christmas Day. Whilst the government can make exceptions, the responsible Minister has the power to ban all forms of paid entertainment on 25 December.

Merry Christmas and happy holidays to all!

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