Justin Bourke KC

Setia and Ors v Hortle (2024)

In representing an employer who was subject to charges under the Wage Theft Act 2020 (Vic), Justin formulated a High Court constitutional challenge as to the validity of that legislation. The charges against his client were ultimately withdrawn by the Victorian Wage Inspectorate just prior to the High Court considering the challenge.

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; (2015) 256 CLR 137 – Operation of sham contracting provisions in the Fair Work Act 2009 (Cth) (FW Act)

Justin successfully argued on behalf of the Fair Work Ombudsman that s 357 of the FW Act (one of the “sham contracting” provisions in that Act) prohibited the knowing or reckless making of a representation that a contract was an independent contractor contract where it was properly classified as a contract of employment. That holding overturned the conclusion of a Full Federal Court that the provision only prohibited knowing or reckless representations by an employer to an employee that an existing contract of employment between them was an independent contractor contract.

Bendigo TAFE v Barclay [2012] HCA 32; (2012) 248 CLR 500 – Operation and application of “reverse onus” provisions in ss 360-361 of the FW Act

Justin successfully argued on behalf of the TAFE employer that a Full Federal Court was in error in holding that a person could be held to have contravened General Protections adverse action provisions which prohibited the taking of adverse action because there was a causal link between the workplace right exercised and the adverse action. In line with Justin’s argument, the High Court held that a causal link was not the test, the question was whether the exercise of the workplace right was a substantial and operative reason for the adverse action.

NSW v Commonwealth of Australia (The Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1 – Constitutional validity of “Work Choices” legislation

Justin was one of a number of Counsel who acted for the Commonwealth in the landmark Constitutional case where the High Court found that the Work Choices industrial legislation could be supported by s 51(xx) of the Constitution (the Corporations power).

Amcor v CFMEU [2005] HCA 10; (2005) 222 CLR 241 – Redundancy entitlements under an enterprise agreement upon a company restructure

Justin represented the Federal Minister for Employment, who intervened in this appeal in support of Amcor. Amcor and the Minister successfully argued on appeal that the relocation of its workforce to a related company did not trigger a redundancy entitlement for its workforce under the applicable enterprise agreement.

Gribbles Radiology v HSUA [2005] HCA 9; (2005) 222 CLR 194 – Whether there was a transmission of business and thus whether associated employee entitlements were triggered

Justin successfully argued that a decision of the Full Federal Court should be reversed. His argument that the “transmission of business” provisions in the Workplace Relations Act 1996 (Cth) were not triggered in the circumstances of the case where a person opened the same type of business at the same location as a previous business of the same type and hired some of the previous business’ staff was successful.

ABCC v Pattison litigation 2022 – Determination of appropriate pecuniary penalty for a contravention of a FW Act civil penalty provision

Justin appeared before a five member Full Federal Court on behalf of the Australian Building and Construction Commissioner in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580. In ruling against Justin’s submissions, the Full Federal Court held that, despite the long history of contraventions by the union respondent, the Court should proceed on the basis that the statutory maximum penalty was reserved only for the worst cases of contravention and that the notion proportionality as applied in the criminal law also governed civil penalties. The decision of the Full Federal Court was appealed to the High Court. Because of the importance of the issues, the Commonwealth Solicitor General appeared on that appeal. The appeal was successful with the High Court rejecting the approach of the Full Federal Court on these questions and preferring the approach as contended below before the Full Federal Court.

Jayson Gillham v Melbourne Symphony Orchestra Pty Ltd & Ors(proceeding current)

Justin is appearing for the Melbourne Symphony Orchestra in a significant General Protections action (to be heard by the Chief Justice) involving an asserted workplace right of political opinion by an independent contractor in the performing arts sector and the intersection between state anti-discrimination laws with the FW Act. The Federal Court has ordered the case proceed with an online file because it is a public interest case.

Decisions: Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458

CPSU V State of Victoria (proceeding current)

Justin is appearing for the State of Victoria in a class action brought by the CPSU alleging that numerous employees of the Department of Justice and Community Safety were not given salary progression payments as required by the Victorian Public Sector enterprise agreement.

Fair Work Ombudsman v Coles and Woolworths (judgment reserved)

Justin represented the Fair Work Ombudsman against Coles and Woolworths in potentially the largest ever underpayment award claim, which was brought in parallel with overlapping class action proceedings. Justin led a team of five junior counsel in what was a procedurally and legally complex trial, which overlapped with two class actions.

Torrens University v Fair Work Ombudsman [2025] FCA 634

Justin on behalf of Torrens University secured orders cancelling a compliance notice of the Fair Work Ombudsman that alleged that a casual academic had been underpaid for marking. The ground of challenge that was upheld was that the compliance notice was based on an erroneous construction as to how the academic award applied to casual academics.

CEPU v SIMPEC [2025] FCA 470

Justin successfully defended a claim by multiple FIFO employees that alleged that their annual and personal leave entitlements had been incorrectly calculated under the enterprise agreement.

Hawthorn Football Club v Rioli and Ors (2024)

Justin represented Hawthorn in respect of a racial discrimination claim brought by a number of past indigenous players. The proceeding settled after a two day private mediation.

FSU v Commonwealth Bank of Australia (2022)

Justin represented the Commonwealth Bank in class action style proceedings where the FSU alleged that the bank had not been providing tea breaks for its banking staff around Australia in breach of its enterprise agreement. The proceeding was settled at mediation.

Tucker v Broderick [2022] FCAFC 174

Justin successfully defended an appeal in the Full Federal Court brought against the summary dismissal of a claim brought in the Federal Court which had been instituted by a person who had prosecuted long running proceedings in the Victorian Supreme Court. Justin had appeared for the successful respondents on the application for summary dismissal before the primary judge. The Full Court dismissed the appeal, concluding in line with a submission made by Justin, that the primary judge’s finding that the proceeding in the Federal Court was an abuse of process because it sought to burden the respondents again with a claim that had been already determined in the Victorian Supreme Court and ordering the applicant to pay the respondents’ indemnity costs.

Haros v Linfox [2011] FCA 699; (2011) 209 IR 418; [2012] FCAFC 42; (2012) 219 IR 177

Justin successfully defended Linfox against a claim by a former manager that he was misled into commencing employment with Linfox in what was a trial of 13 days’ duration. The applicant’s appeal was successfully resisted.

Melbourne Stadiums Ltd [Etihad Stadium] v Sautner [2015] FCAFC 20; (2015) 229 FCR 221

Justin successfully argued before a five member Full Federal Court that Etihad Stadium was entitled to summarily dismiss its senior manager for serious misconduct, overturning a contrary finding of a County Court Judge at trial. This case is now the leading case as to when an employer can rely on a ground to dismiss where the employer did not know of the existence of that ground at the time of dismissal or did not raise it at the time of dismissal.

Fair Work Ombudsman v Offshore Marine Services [later known as Skilled] & MUA [2013] FCA 943; [2015] FCA 275; [2015] FCAFC 120

Justin successfully established that the MUA had discriminated against a married couple because they did not have union membership. Penalties were secured against the MUA as well as a compensation order in favour of the couple totalling the sum of $723,300 (reduced on appeal to $330,000).

Tattsbet v Morrow [2015] FCAFC 62; (2015) 233 FCR 46

Justin successfully overturned a decision of a Federal Circuit Judge who found that a person who ran a Tattsbet outlet under an agency agreement was an employee of Tattsbet, not an independent contractor.

Chen v Monash University [2015] FCA 130

Justin successfully defended Monash University and two professors from a vast number of allegations of sexual discrimination and harassment in the workplace in a trial of 15 days’ duration.

Shea v TRUenergy Australia [now EnergyAustralia] (No. 6) [2014] FCA 271; (2014) 314 ALR 346;

[2014] FCAFC 167; (2014) 242 IR 159

Justin successfully defended EnergyAustralia in a three week trial and on appeal in a high profile adverse action case brought by the former Director of Corporate & Government Affairs of EnergyAustralia. The applicant alleged that her dismissal by EnergyAustralia for redundancy was not genuine, and that it constituted adverse action in contravention of s 340 of the FW Act because she had made complaints about a corporate culture of sexual harassment in the workplace. Orders for indemnity costs were obtained against the applicant. The decisions at first instance and on appeal have significantly influenced the development of the law concerning what constitutes a complaint which an employee is able to make within the meaning of s 341(1)(c)(ii) of the FW Act.

Fair Work Ombudsman v MUA [2014] FCA 440; (2014) 243 IR 312; [2015] FCA 814

Justin successfully argued that the MUA had contravened the adverse action provisions of the FW Act when it published and distributed a scab poster on the Western Australian waterfront naming five men who the MUA claimed worked during a strike. Compensation orders were made in respect of each of these men. This decision was upheld on appeal: Maritime Union of Australia v Fair Work Ombudsman[2016] FCAFC 102.

Abela v State of Victoria (Department of Education) [2013] FCA 832

Justin successfully defended the Victorian Education Department from a disability discrimination claim in a trial of four weeks’ duration. The proceeding was later settled on appeal, the settlement being approved by the Court: [2015] FCA 902.

Walker v State of Victoria (Department of Education) [2011] FCA 258; (2011) 279 ALR 284; [2012] FCAFC 38

Justin, in what was a trial of 21 days duration, successfully defended a disability discrimination case brought by a student against the Victorian Education Department. The case made important observations as to the limits on the reach of indirect discrimination claims. The applicant’s appeal was successfully resisted.

Other Federal Court cases in which Justin has appeared include: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union[2022] FCAFC 138; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; (2019) 269 FCR 262; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 (2018) 258 FCR 158; Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1; Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102; (2016) 247 FCR 154; UFU v Country Fire Authority [2014] FCA 17; (2014) 218 FCR 210; [2015] FCAFC 1; Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800; [2012] FCAFC 192; (2012) 208 FCR 1.

Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSC 163;(2017) 266 IR 290; Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181; (2017) 54 VR 517

Justin successfully argued at trial and on appeal that the post-employment restraints on an executive employee did not survive his employer’s repudiatory conduct that brought the employment contract to an end.

Tucker v State of Victoria litigation

Justin appeared in a series of proceedings in the Victorian Supreme Court for the State of Victoria and certain public officers. Those proceedings were brought by a plaintiff employee who was employed as a solicitor in the Victorian State Revenue Office and who was subject to an investigation of his conduct and disciplinary proceedings. The series of cases primarily concerned the degree of natural justice that is needed to be provided to an employee who is subject to the investigation and disciplinary processes under the Victorian public sector enterprise agreement.

See amongst other decisions: Tucker v State of Victoria [2021] VSCA 120; Tucker v State of Victoria (Undertaking as to Damages) [2020] VSC 121; Tucker v State of Victoria [No 2] [2021] VSCA 182 Tucker v State of Victoria [2023] VSCA 125 & 126; Tucker v State of Victoria [No 2] [2023] VSCA 180; Tucker v State of Victoria & Anor (Summary Judgment Ruling) [2024] VSC 135.

Pentridge Village Pty Ltd (in liq) & Ors v Construction, Forestry, Maritime, Mining & Energy Union & Ors [2022] VSC 303

Justin has appeared in many cases in the Fair Work Commission at single member and Full Bench level, including cases concerned with bargaining and contested enterprise agreement approval applications, industrial action, dispute settlement procedures under an award and enterprise agreement dispute resolution terms and unfair dismissal. Recent cases in the Commission have been:

Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156; (2011) 317 IR 253

Justin successfully argued on the basis of recent High Court authority that the Full Bench of the Commission should overturn a decision of a single member who had decided in Diego Franco v Deliveroo Australia PtyLtd [2021] FWC 2818 that a person who worked as a delivery person for Deliveroo was an employee of that business rather than an independent contractor and therefore was entitled to the protection of the unfair dismissal provisions in the FW Act.

Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 287 & Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 305

Justin appeared for Cleanaway in two of the earliest “Intractable Bargaining” workplace determination proceedings in which a Full Bench of the Commission made Intractable Bargaining Workplace Determinations prescribing the employment conditions to apply to transport workers at each of two Cleanaway sites.