Industrial Bar Events & Cpds

Navigating the rocky terrain of derivative liability under the Fair Work Act 2009 (Cth)

The Industrial Bar Association

20Aug

In actions alleging contraventions of civil remedy provisions under the Fair Work Act 2009 (Cth) brought by regulators and private litigants, it has become common to also allege that secondary wrongdoers engaged in the same contraventions using the accessorial provisions of the legislation. If proven, the secondary wrongdoer is considered to have engaged in the same contravention as the primary wrongdoer. The case law underpinning the accessorial provisions borrows from criminal law principles. When it comes to the requisite standard of knowledge the secondary wrongdoer is required to have had under the criminal law, the High Court in Yorke v Lucas (1984) 158 CLR 661 has made clear that the secondary wrongdoer must be shown to have had knowledge of the “essential elements” of the primary contravention. But what are these “essential elements” when it comes to industrial law contraventions? Can ignorance of the law be an excuse? A tension has arisen in the authorities on this issue and it remains unresolved. Depending on where the law eventually lands, the bar to proving accessorial liability might drop surprisingly low or it could become almost unreachable.

In this CPD, Alex Manos explores the key cases that have led to this point and the underlying policy considerations that are likely to inform the outcome. Ben Holding will provide an overview of the alternative vehicle in the legislation through which derivative liability may be proven against franchisors, the knowledge threshold to be met, and the relief available when a claim is proven.

CLICK HERE TO RSVP

This in an in-person event only, no livestream and will be recorded for viewing later.

Speaker(s):

Siobhan Kelly (Chair), Alex Manos and Ben Holding

When:

Tuesday, 20 August, 2024 - 17:15 to 18:15

Where:

Neil McPhee Room, Level 1 Owen Dixon Chambers East

205 William Street

Melbourne VIC 3000

Australia

1 CPD point(s):

Substantive Law;

FOUNDATION

INTERMEDIATE

ADVANCED

Book Event

‘Set off’ in industrial and employment law: where are we now, and where are we headed?

The Industrial Bar Association

5Dec

At a time when questions of characterising work relationships are evolving at pace, an understanding of the scope and operation of ‘set off’ in industrial law has perhaps never been so important. Despite several Federal Court judgments over the past several years grappling with industrial law ‘set off’ – including Workpac Pty Ltd v Rossato, Wardman v Macquarie Bank Ltd, and Fair Work Ombudsman v Transpetrol – a range of legal and practical questions remain. How ‘close’ is the required correlation? What happens where the underpayment arises from a failure by the parties to create the type of relationship they intended? Over what period can one set off? How does set-off fit with s 545 of the Fair Work Act?

This session aims both to explore those questions and identify the likely battle lines of future cases.

CLICK HERE TO RSVP

This is an in-person event and will also be available online via livestream.

Speaker(s):

Chris O'Grady KC (Chair), Andrew Pollock, Natalie Campbell, Stephanie Cheligoy

When:

Tuesday, 5 December, 2023 - 17:15 to 18:15

Where:

Neil McPhee Room, Level 1 Owen Dixon Chambers East

205 William Street

Melbourne VIC 3000

Australia

1 CPD point(s):

Substantive Law;

FOUNDATION

INTERMEDIATE

ADVANCED

Book Event

The New Law of Sexual Harassment

The Industrial Bar Association and The Equality and Diversity Committee

9May

Australia is currently experiencing the most significant reforms to the law of sexual harassment in decades. This session will provide a detailed understanding of the definition of sexual harassment in the current landscape. The session will also examine the focus on positive duties and new procedural options in the recent reforms.

Finally, the session will look ahead to the proposed requirements on Victorian employers to report to WorkSafe Victoria and meet other obligations in relation to sexual harassment in the workplace under psychological health regulations.

For those attending in person, please join fellow attendees in the Essoign Club after the CPD.

CLICK HERE TO RSVP

This is an in-person event and will also be available online via live stream.

Speaker(s):

Fiona Knowles (Chair), Mark Irving KC, Franceska Leoncio, Nadia Stojanova

When:

Tuesday, 9 May, 2023 - 17:00 to 18:00

Where:

Neil McPhee Room, Level 1 Owen Dixon Chambers East

205 William Street

Melbourne VIC 3000

Australia

1 CPD point(s):

Substantive Law;

FOUNDATION

INTERMEDIATE

ADVANCED

Book Event

General protections proceedings in the FCFCOA: Strategy and practical tips

The Industrial Bar Association

22Nov

Prosecuting or defending claims raised under Part 3-1 of the Fair Work Act 2009 (Cth) can be a ‘backbone’ for many who practice in employment and industrial law. Since the passage of that Act, it has also grown to be an important part of the Federal Circuit and Family Court of Australia’s general federal law jurisdiction.

In this seminar, the presenters will focus on the strategic and practical aspects of successfully running these claims in the FCFCOA in particular. They will provide their tips about:

• issuing proceedings (features of the FCFCOA’s jurisdiction, pleadings, the s 368 certificate, extensions of time, mediation and settlement);

• building your case (discovery, outlines of evidence/affidavits, the privilege against self-incrimination); and

• proving your case or undermining your opponent’s case (from an applicant and defendant perspective).

Judge Symons of the Court will chair the session and has agreed to offer her insights in an informal Q and A session at the conclusion of the presentations.

The IBA is very pleased to offer its first in person CLE to members and instructors since the onset of the pandemic in 2020. Attendees are welcome to catch up with one another in the Essoign afterwards.

CLICK HERE TO RSVP

This is an in-person event only.

Speaker(s):

Her Honour Judge Catherine Symons (FCFCOA), Joel Fetter, Matt Garozzo, Catherine Pase

When:

Tuesday, 22 November, 2022 - 17:00 to 18:30

Where:

Neil McPhee Room, Level 1 Owen Dixon Chambers East

205 William Street

Melbourne VIC 3000

Australia

1 CPD point(s):

Substantive Law;

FOUNDATION

INTERMEDIATE

ADVANCED

Book Event

Does the punishment need to fit the crime when sentencing for civil penalties?

Industrial Bar Association

4Aug

In Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13, the High Court found that when sentencing for breaches of civil penalty provisions, the principle of proportionality, a well-recognised sentencing constraint in criminal law, has no part to play. The civil penalty imposed may therefore be disproportionate to the nature, gravity and seriousness of the contraventions in question. The High Court’s decision to depart from the criminal law approach was said to be justified because proportionality in a retributive sense was inconsistent with deterrence, which is the primary objective of civil penalties. The ruling sees the resolution of an issue that had been the subject of conflicting decisions in the Federal Court. It has immediate and obvious ramifications for repeat offenders of workplace laws, such as the CFMMEU which was the contravener in this particular case, but is that the extent of its reach?

Rachel Doyle SC, Matthew Follett and Ben Bromberg are three counsel who appeared in ABCC v Pattinson at various stages throughout its path to the High Court and will present on the case. They will track its path through the Federal Court, recount the competing arguments presented by the parties and examine the rationale that led to this defining decision. There will now be a new sentencing dynamic in the industrial relations realm and in other fields where civil penalties play a prominent role, such as competition and corporate law.

Joining the Webinar

CLICK HERE TO REGISTER

This is an online only event.

Speaker(s):

Alex Manos (Chair), Rachel Doyle SC, Matthew Follett, Ben Bromberg

When:

Thursday, 4 August, 2022 - 17:00 to 18:15

1 CPD point(s):

Substantive Law;

FOUNDATION

INTERMEDIATE

ADVANCED

Book Event