Profile

Full Name: Mr Brendan J Avallone
Email: brendan.avallone@vicbar.com.au
Phone: +61 3 9225 6470
Mobile: 419543877
Chambers: Aickin Chambers
Room: 1611
Date of Admission: 2 Apr 2001
Called to the Bar: 22 Oct 2015
Qualifications: LLM, LLB (Hons), BCom (Hons)

Profile

Brendan Avallone practises in all areas of employment and industrial relations law, building on his 15 years’ of experience in these areas before  he signed the Bar Roll on 22 October 2015.  He acts predominantly for employers and government.

Brendan's practice has been ranked in peer review journals Doyle's Guide 2018 (Employment & WHS Junior Counsel - Victoria - Leading) and (Employment & WHS Junior Counsel - Australia - Recommended), The Best Lawyers in Australia 2018 (Labour and Employment Law), and Doyle's Guide 2017 (Employment & WHS Junior Counsel – Victoria - Recommended).

Prior to joining the Victorian Bar, Brendan was a Special Counsel in the Human Resources and Industrial Relations group of a major law firm, acting for a number of Victorian and Australian Government Departments and agencies, and private sector employers.

Brendan has advised and acted in a number of high profile industrial relations cases, including the Victorian public sector nurses dispute, Victorian government teachers EBA negotiations and industrial action, Australia Post enterprise bargaining over a number of years and the pre-Christmas 2009 industrial action, and picketing and industrial action at the Boeing Fisherman’s Bend site.

Brendan has appeared on behalf of employers and Government agencies in the Courts, the Fair Work Commission and its predecessors, in matters regarding industrial action, protected action ballot applications, industrial disputes, unfair dismissal applications and underpayment claims.

Brendan was seconded to the Department of Employment to assist in drafting workplace legislation in 2005-2006 and the Department of Finance, and was an Associate at the Australian Industrial Relations Commission in 2001-2002.  He has a Master of Laws from the University of Melbourne, specialising in workplace relations, with a First Class Honours average.

Brendan recently presented at the Victorian Bar Industrial Bar Association's inaugural industrial law update: Recent developments regarding applications for protected action ballot order under s437.  He regularly gives presentations for organisations including the Law Institute of Victoria, Akolade and Legalwise.

Committee Membership: Brendan is a former member of the Committee of the Industrial Bar Association (2017).  He also served as the Treasurer of the Industrial Relations Society of Victoria from 2007-2012 and on the IRSV Executive from 2007-2013.    

Decided matters in which Brendan has appeared since coming to the Bar include the following.  The party Brendan acted for appears in bold below:

-            Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698 (9 November 2018) – contravention of s500 (right of entry) of the Fair Work Act 200

-        Kurucuk v Mining One Pty Ltd [2018] FWC 6620 (2 November 2018) – opposing application alleging unfair dismissal – application dismissed on jurisdictional grounds (no dismissal)

-       Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology Workplace Determination [2018] FWCFB 5778 (13 September 2018) – making of a Workplace Determination by a Full Bench of the Fair Work Commission

-       Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146 (31 August 2018) – appeal against decision to set aside application, and on the question of costs (junior to Chris O’Grady QC)

-       United Firefighters' Union of Australia v Emergency Services Telecommunications Authority t/a ESTA 000 [2018] FWCFB 5624 (24 August 2018) – appeal – dispute about enterprise agreement

-       Brierley & Chuck v Victoria Police [2018] FWC 4305 (8 August 2018) – dispute about enterprise agreement

-       Tan v Ikon Communications Pty Ltd [2018] FCA 1240 (6 August 2018) – application for extension of time (general protections dispute)

-       Emergency Services Telecommunications Authority T/A ESTA 000 v United Firefighters' Union of Australia [2018] FWC 4351 (1 August 2018) dispute about enterprise agreement (decision upheld on appeal)

-       Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935 (20 July 2018) and Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.3) [2018] FCCA 2330 (22 August 2018)  – proceeding against employer and two directors for underpayments and other contraventions

-       Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118 (11 July 2018) – opposing application alleging unfair dismissal – application dismissed 

-        AMWU v Broadspectrum (Australia) Pty Ltd [2018] FWC 3974 (4 July 2018) – opposing application for a scope order – application refused (decision subsequently overturned on appeal)

-        Australian Nursing and Midwifery Federation v Japara Healthcare Limited [2018] FWC 3918 (3 July 2018) – opposing application for urgent interim orders – dispute about an enterprise agreement – interim application refused and substantive application dismissed

-        Fair Work Ombudsman v First Group Of Companies Pty Ltd (Deregistered) & Ors [2018] FCCA 1228 (23 May 2018) – penalties for underpayment of employees, sham contracting, and penalties for involvement by principal contractor in underpayments by contractor

-        Choppair Helicopters Pty Ltd and Anor v Bobridge [2018] FCA 325 (15 March 2018) and Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700 (18 May 2018) – appeal against decision of Federal Circuit Court – alleged award underpayments including superannuation – order for payment of compensation by person “involved” under s550 – appeal partially successful

-         Bateman v Aldi Foods Pty Ltd [2018] FCCA 415 (23 February 2018) – opposing general protections application – termination was because of employee conduct, not an unlawful reason

-         Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors [2018] FCCA 508 (21 February 2018) – application for costs under s570 of the Fair Work Act 2009

-         Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others (No 2) [2018] FCA  47 (6 February 2018) – costs – whether s570of the Fair Work Act 2009 applies (overtuned on appeal) (junior to Chris O’Grady QC)

-         Freeman v State of Victoria [Department of Education & Training]  [2018] FWC 212 (11 January 2018) – opposing dispute notification under two enterprise agreements – no jurisdiction to deal with the dispute

-         Fair Work Commission referral re right of entry permit of Stephen Long [2017] FWC 6867 (19 December 2017) - intervening on behalf of the Australian Building and Construction Commissioner, in relation to suspension of the right of entry permit of a CFMEU official

-          Sensis Pty Ltd v Gundi [2017] FCA 1519 (15 December 2017) – appeal against decision that employee redundant when focus of duties changed – “reasonable alternative position” and “suitable position” – appeal successful (junior to Michael Wheelahan QC)

-          Fair Work Ombudsman v NSW Motel Management Services Pty Ltd and others [2017] FCCA 2759 (14 November 2017) – opposing application for a suppression order and an objection under s128 of the Evidence Act 1995  (junior to Chris O’Grady QC)

-          Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others [2017] FCA 1245 (23 October 2017) – opposing application to set aside application for declaration as to meaning of enterprise agreement (decision upheld on appeal) (junior to Chris O’Grady QC)

-          Fair Work Commission referral re right of entry permit of Mohammed Kalem [2017] FWC 5086 (18 October 2017) - intervening on behalf of the Australian Building and Construction Commissioner, in relation to suspension of the right of entry permit of a CFMEU official

-          EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FWCFB 3574 (10 July 2017) – appeal against decision in relation to decision about the application of an enterprise agreement – appeal successful

-          Victorian WorkCover Authority T/A WorkSafe Victoria v CPSU, the Community and Public Sector Union [2017] FWC 3645 – application for an Order to stop industrial action

-          Monash University v National Tertiary Education Industry Union [2017] FWCFB 2420 (7 June 2017) – appeal against decision in relation to decision to vary agreement – appeal successful (junior to Justin Bourke QC)

-          Adams v Department of Education and Training [2017] FWC 2942 (5 June 2017) – opposing application alleging unfair dismissal – application dismissed

-          Davidson v Health Communications Network t/a Medical Director [2017] FWC 2951 (30 May 2017) – dispute about modern award coverage – jurisdictional objection

-          Mohammed v City Of Whittlesea Council (No.2) [2017] FCCA 1283 and Mohammed v City Of Whittlesea Council [2017] FCCA 1282 and (both 15 May 2017) – opposing an application alleging contravention of the general protections of the Fair Work Act 2009

-          Minister for Industrial Relations for the State of Victoria v AGL Loy Yang Pty Ltd and others [2017] FWC 2533 (9 May 2017) – application for an Order to terminate protected industrial action (junior to Frank Parry QC)

-          Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.3) [2017] FCCA 764 (28 April 2017) – opposing an application alleging contravention of an enterprise agreement and breach of contract (junior to Chris O’Grady QC)

-          Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd [2017] FWC 2298 (27 April 2017) - decision about the application of an enterprise agreement (decision subject to appeal)

-          Heading v Secretary of the Department of Education and Training on behalf of the State of Victoria [2017] FWCFB 1352 (7 April 2017) – opposing an appeal against a decision about the application of an enterprise agreement

-          Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd [2017] FWCFB 1019 (2 March 2017) - opposing an appeal against decision to terminate enterprise agreement (junior to Frank Parry QC)

-          Winters v Fogarty and others [2017] FCA 51 (2 February 2017) – acting for second and third respondents seeking strike out of claim alleging contravention of discrimination laws during Court-ordered mediation (junior to Rachel Doyle S.C.)

-          AGL Loy Yang Pty Ltd v Construction, Forestry, Mining and Energy Union and another [2017] FWC 432 (20 January 2017) - application for Order that industrial action (a ban on overtime and practices in relation to sick leave) stop, not occur and not be organised (junior to Chris O’Grady QC)

-          AGL Loy Yang Pty Ltd v Construction, Forestry, Mining and Energy Union and another [2017] FWC 306 (16 January 2017) - application for order that industrial action (a ban on overtime) stop, not occur and not be organised (junior to Chris O’Grady QC)

-          Construction, Forestry, Mining and Energy Union v Kane Constructions Pty Ltd [2016] FWC 8002 (9 November 2016) - opposing an application for a protected action ballot order – time period for ballot to occur

-          National Tertiary Education Industry Union v Monash University [2016] FWCA 7945 (8 November 2016) – opposing application to vary an agreement to remove an ambiguity or uncertainty (junior to Justin Bourke QC)  (decision overturned on appeal)

-          Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd [2016] FWC 7839 (28 October 2016) - opposing an application for a protected action ballot order – opposing order for independent ballot agent other than Australian Electoral Commission - application to extend period of notice of industrial action to seven working days (junior to Frank Parry QC)

-          Volunteer Fire Brigades Victoria v Country Fire Authority (Discovery ruling) [2016] VSC 573 (29 September 2016) – Discovery obligations in circumstances of expedited hearing in the Supreme Court of Victoria (junior to Chris O’Grady QC)

-          Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd [2016] FWCFB 6332  (21 September 2016) - opposing an appeal against refusal to grant a protected action ballot order (junior to Chris O’Grady QC)

-          Australian Commercial Catering Pty Ltd v Powell and Togia [2016] FWCFB 5467 (12 August 2016) – FWC appeal relating to ‘acceptable alternative employment’ and redundancy

-          Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch [2016] FWC 4256; [2016] FWC 4180 (15 July 2016) – intervening on behalf of the Director of the Fair Work Building Industry Inspectorate, in relation to CFMEU applications for right of entry permits to be granted to officials

-          Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] FWC 4593 (12 July 2016) – opposing a stay application in relation to a decision not to grant a right of entry permit

-          AGL Loy Yang Pty Ltd v Construction, Forestry, Mining and Energy Union and others (PR582599, 10 July 2016) – application for Order that industrial action (a ban on overtime) stop, not occur and not be organised

-          Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd [2016] FWC 4364 (1 July 2016) - opposing an application for a protected action ballot order (junior to Chris O’Grady QC)

-          Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd [2016] FWC 3961 (17 June 2016) - dispute about interpretation of enterprise agreement concerning ability of non-EBA employees to perform work also performed by EBA employees

-          Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.2) [2016] FCCA 1391 (16 June 2016) - successful strike out of pleadings which alleged false imprisonment by employer of its employee (junior to Chris O’Grady QC)

-          Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd [2016] FWC 3376 (2 June 2016) - opposing an application for good faith bargaining orders (junior to Chris O’Grady QC)

-          Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch [2016] FWC 3322;  [2016] FWC 3190;  [2016] FWC 3110 (31 May 2016) – intervening on behalf of the Director of the Fair Work Building Industry Inspectorate, in relation to CFMEU applications for right of entry permits to be granted to officials

-          Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd [2016] FWCFB 2878 (11 May 2016) - opposing an application for a protected action ballot order (junior to Frank Parry QC)

-          EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FWC 2133 (5 April 2016) – dispute about interpretation of enterprise agreement concerning ability to outsource work

-          Turner v Australia Post [2016] FWC 801 (2 March 2016) – jurisdictional objection to unfair dismissal application (applicant was not an employee – company was an independent contractor)

-          Australian Nursing and Midwifery Federation v Ryman HealthCare [2015] FWC 8790 (22 December 2015) – opposing a majority support determination under the Fair Work Act 2009

-          Australian Commercial Catering Pty Ltd v Fair Work Commission and Powell and Togia [2015] FCAFC 189 (22 December 2015) – judicial review of Fair Work Commission Full Bench decision, relating to ‘acceptable alternative employment’ and redundancy

To see further details of Brendan’s experience, including cases he appeared in as a solicitor before being called to the Bar, please click here.

Areas of Practice

Appellate

Commercial Law

  • Contractual Disputes

Industrial Relations Law & Employment Law

  • Discrimination
  • Employment Contracts
  • Industrial Disputes
  • Public Sector Appeals

Public Law & Administrative Law

  • Disciplinary Proceedings
  • Discrimination & Equal Opportunity
From 30 Oct 2015, liability limited by a scheme approved under Professional Standards Legislation.


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