The Supreme Court of Victoria recently approved the issuance of subpoenas compelling two witnesses to attend before an arbitral tribunal seated in Melbourne and give evidence pursuant to Section 23 of the International Arbitration Act. The application arose out of a long-running dispute concerning the sale of a food business. The court's judgment provides useful guidance on the circumstances in which it will issue subpoenas in aid of arbitration as well as the meaning of Section 23(4) of the act.
The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.
In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.
The coalition government made a significant drive into the workplace relations space in December 2018 with the passage of new legislation designed to simplify and streamline the Fair Work Commission's award review and enterprise agreement approval processes. The key change is the removal of the present requirement in the Fair Work Act 2009 for the Fair Work Commission to conduct four-yearly reviews of modern awards.
The Fair Work Commission's recent decision in Klooger will undoubtedly be the subject of considerable analysis as the developing gig economy forces employers to ask what employment in Australia will look like in 2019. The commissioner's comments clearly show that an approach to work health and safety which actively seeks to circumvent such obligations may lead courts and tribunals to more willingly characterise gig economy engagement models as traditional employment relationships.
In its four-yearly review of modern awards, the Fair Work Commission has varied nearly all modern awards to require that employers make termination payments within seven calendar days of the effective date of termination. Employers should be aware of the requirements for termination payments, which now appear in the majority of modern awards, and amend their employee exit procedures accordingly.
The Fair Work Commission recently made a significant decision on out-of-hours conduct in finding that ALDI had had a valid reason to dismiss an employee for throwing a full glass of beer over the heads of other employees at a work Christmas function. The case emphasises that while employers have a responsibility to maintain appropriate standards of behaviour at work functions where alcohol is present, employees also have an obligation to act within reasonable limits.
A recent Full Court of the Federal Court decision has set off alarm bells for employers that engage casual workers. The court found that a 'fly-in, fly-out' worker was not a casual employee despite being employed as one. Accordingly, the employee was entitled to annual leave – a benefit not otherwise available to casuals. This decision raises many significant questions and issues, going to the very nature of what makes casual employment relationships 'casual'.