Litigation and Dispute Resolution

Hiding in plain sight – Supreme Court finds ‘de facto director’ in breach of statutory duties

26 September, 2022

Decision: CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51

An interesting decision from the Full Federal Court was published on 28 March 2023, right in time for the month of April, a month each year where public holidays are prevalent.

This may give employers that operationally require work to be done on public holidays – like, for example, in the hospitality industry, the fast-food industry or the security industry – a jolt of anxiety leading into the Easter break.

Employers must “request” employees to work on public holidays, as opposed to “require” employees to work, absent a request.  Many current employer rostering practices may not neatly fit the bill.


On Christmas Day and Boxing Day in 2019, 85 BHP employees at its Daunia coal mine in Queensland’s Bowen Basin worked a standard 12.5 hour shift, and did not receive any additional remuneration for working those days.

Unique to Daunia Mine, its production operations was 24 hours, 365 days a year, which was required to meet its contractual obligations.

Employees’ employment agreements provided a roster pattern of 7 days on, 7 off, 7 nights on, 7 off working 12.5 hour shifts, plus reasonable additional hours, and provided that employees may be required to work on public holidays and payment for that expectation was incorporated into existing remuneration.

Employees were provided with their roster when they first commenced employment, which identified all of the shifts they were required to work, including the public holidays.

In August 2019, management become aware of employees putting in leave applications for Christmas Day and Boxing Day, and as a response, employees were told in September 2019 that only a limited number of employees were able to take leave on those days, and those permitted to take leave were randomly selected.

The legislation

Section 114(1) of the Fair Work Act (FW Act) provides that “An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes“.

Then s 114(2) provides that “an employer may request an employee to work on a public holiday if the request is reasonable“, and s 114(3) provides that “if an employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable, or the refusal is reasonable“.

Section 114 of the FW Act is a provision of the National Employment Standards (NES).

At first instance

The primary judge found that it was clear that the employer required its production employees at Daunia Mine to work on Christmas Day and Boxing Day, in management expressly conveying to employees in September 2019, that there was an expectation that employees rostered to work, other than those granted leave, would attend work.

The Union argued that the employer imposed a requirement that the employees work on a public holiday, in contravention of the NES, and specifically, s.114 of the FW Act.

The Union’s case was that a contravention of s 114 will occur where an employer requires an employee to work on a public holiday and has made no reasonable request. There will be no reasonable request “where there is no request at all (but only a requirement); or where a request is made that is not reasonable“.

On the other hand, the employer’s case was that the word “request” is intended to cover a requirement by an employer that its employees work on a public holiday. Such a requirement can be a “request that is reasonable” within s 114(2).

The primary judge correctly identified that the issue between the parties concerned the meaning of “request” in the context of s 114(2), and correctly observed that a “request” leaves the responder with a “choice as to whether or not to do the thing“, whereas a “requirement involves asking or demanding that a person do something in a manner than indicates that there is no option but to comply“.

However, the primary judge did not accept the Union’s construction, finding in the first instance that s 114(2) applies to a “requirement” by an employer that an employee works on a public holiday.

The appeal

The Union’s first ground of appeal (which was ultimately successful) was on the basis that the primary judge erred in determining that the exception under s 114(2) of the FW Act applies where the employer does not request but rather imposes a requirement on an employee to work on a public holiday.

In finding that the primary judge erred in not accepting the Union’s construction, the Full Court did not accept the foundation of the reasoning that the preferred construction of s 114(2) was to ensure the right for employees to be absent from work on a public holiday was balanced by the capacity of employers to require employees to work where that is reasonable – which the primary judge understood would be necessary for critical services (such as police, fire services, ambulance services and at hospitals).

The Court said that outcome follows because an employee must work if the request is reasonable and there is no reason for refusal which is reasonable.

An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee’s refusal is not reasonable.

The Court did not accept that this would be unworkable and mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever have a contractual requirement contemplating work on public holidays.

An employer is able to have a roster which includes public holidays.  All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised.

Similarly, an employment contract may contain a provision foreshadowing that an employee may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.

Confronting any uncertainty that this may create for an employer, the Court noted that an employer is only ever able to demand of its employees what is lawful and reasonable regardless of what a roster or contract says.

It said that, while it may be administratively burdensome for an employer to have to make a request rather than be able to require employees to work on public holidays, the legislation intends to confront that very mischief:  To ensure that employers do not so require employees to work on public holidays absent the request being reasonable or the employee being able to refuse to work in reasonable circumstances.

Further, it said that the potential for there to be an absence of employees who volunteer to work on public holidays, is an ordinary predicament for an employer asking employees to work non-standard hours.  It is then for the employer to justify why the request is reasonable.  If the request is reasonable, then the employee must work unless the employee has a reason for refusal which is reasonable.

Key takeaways

Employers are open to roster employees to work on public holidays.  However, employers must be careful that their rostering practices do not amount to “requiring” employees to work, absent a “request”.

Employers should communicate to employees that they have a right under s 114 of the FW Act to refuse to work on a public holiday (if the refusal is reasonable).

Employers should make a request of employees to work on public holidays, prior to any roster being finalised.  Practically, this may be via a request for volunteers to work particular public holiday shifts, or via an employee “opt-in” request for particular public holiday work in a rostering period, or perhaps, via obtaining prior employee confirmation that they are available to work on particular public holidays.

Alternatively, where a roster is published prior to any request being made, employers should ensure that employees understand that the roster is in draft and is requesting employees who have been allocated holiday work, that they indicate whether they accept or refuse that allocation.

Contractual terms dealing with public holidays should be drafted in a manner that foreshadows that an employee may be asked to work on public holidays and may be required to do so where the request is reasonable and a refusal unreasonable.

If you require any advice in relation to public holiday obligations, our Employment, Workplace Relations and Safety team at McCabes Lawyers can assist. 

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Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023