Stephen Edwards LLB    Call now 0427329514 - Employment Law and Fair Work Consultant
Blog and issues commentary

Drug and alcohol policies; their effect

Generally speaking, an employer’s policies which propound a zero tolerance to the presence of alcohol or drugs at work will be read down to mean a zero tolerance to the presence of drugs or alcohol above the Australian standard. In Toms v Harbour City Ferries Pty Ltd (2014) FWC 2327 delivered on 16 April 2014, the employer accepted in an unfair dismissal case that the policy should be so construed.
The case arose from the dismissal of a Sydney Harbour ferry master, who was dismissed for returning a positive test to marijuana after the ferry he was controlling crashed into a wharf in 2013.

Implied terms into contracts

In Dafallah v Fair Work Commission [2014] FCA 328, Justice Mortimer has dealt with a claim by a woman who had unsuccessfully sought an unfair dismissal remedy in the Fair Work Commission (and on appeal to a Full Bench) by launching proceedings against her former employer alleging that it had breached the relevant enterprise agreement in failing to follow to the letter the prescribed disciplinary process. The applicant sought judicial review of the Commission’s decision, the imposition of penalties and compensation for breach of the enterprise agreement, damages for breach of contract and negligence and breach of the implied term of trust and confidence, the nature and existence of which is currently being decided by the High Court on appeal from Barker’s case

Casual or part-time?

The Fair Work Act does not contain a definition of what is meant by the expression “casual employee” but the distinction between a casual employee on the one hand and a permanent part time or permanent full time employee can be very important. For example, casual employees do not have access to the unfair dismissal jurisdiction of the Fair Work Commission (by casual service not counting towards the minimum qualifying employment period required to take unfair dismissal proceedings, sec384), nor do they accrue annual or long service leave.

Privacy in the workplace

On 12 March 2014, a number of significant changes came into effect to the Privacy legislation via the Privacy Amendment (Enhancing Privacy Protection) Act 2012. The Act replaces the previous National Privacy Principles (which covered the private sector) and the Information Privacy Principles (the federal and ACT instrumentalities with the Australian privacy Principles. The regime continues to exempt the legislation’s reach to exclude employee records but not if the persons are not ultimately employed or are independent contractors.

Tactics to undermine good faith bargaining

Under the Fair Work Act, employers are bound to conduct enterprise bargaining with bargaining representatives, and both sides are required to bargain in good faith. Sec 228 of the Act defines the specific obligations which are required to be followed to constitute good faith bargaining and they include….refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining and   recognizing and ….bargaining with the other bargaining representatives for the agreement.

Damages for defamation by union

The Maritime Union of Australia has  been ordered to pay the master of a ship $90,000 in damages for defamation for publishing an newspaper article on its web-site, by  including a link to a newspapers’ web-site, which imputed that the master was putting the commercial benefits of a contract ahead of the safety of the ship’s crew together with an interview with a safety officer employed by the union that he held “grave fears” for the safety of the crew due to the alleged absence of a contingency plan in the face of a pending cyclone.

Procedural fairness

I am often asked by employers and employees what is required to satisfy the requirement for procedural fairness in an investigation into misconduct by an employer of an employee. In a recent case,  Victorian Association for the Teaching of English Inc v de Laps[2013] FWC 4163 a Full Bench of the Fair Work Commission has upheld an employer's appeal against a decision that there was a dismissal at the employer's initiative and in doing so, made findings about whether the employer had denied the employee procedural fairness in relation to allegations it was investigating.

Unfair dismissal remedies, reinstatement

In this case a Full Bench of the Fair Work Commission has upheld an appeal against a decision of a single commissioner to decline to order re-instatement having found the dismissal of a catholic teacher unfair, on the basis of accepting evidence from the school’s principal that he (the principal had lost trust and confidence in the teacher; and instead awarded the teacher almost the maximum allowable by way of compensation. In my view, the case is another of an emerging trend for the Commission to reject what had been becoming a trite way for employers to avoid reinstatement orders (which can admittedly have embarrassing and difficult management implications) by leading evidence that it is all too hard.

Implied terms of the employment contract

The High Court is set to rule on the question whether contracts of employment in Australia contain an implied term of mutual trust and confidence after a Full Court heard submissions on behalf of the Commonwealth Bank and a former manager in an appeal by the bank against a decision of a majority of a Full Bench of the Federal Court ordering he bank to pay $335,000 in damages for failing to consider re-deployment within the bank before terminating his employment. English common law has recognized the existence of such an implied term since an important House of Lords decision in 1989, but the decision of the Federal Court was the first time a court of authority has recognized the implied term in Australian law.

Annual rate of earnings; high income threshold

The question wether regular overtime is included in an employee's annual rate of earnings when determining if those annual earnings exceed the high income threshold and thus exclude the employee from the Fair Work Commission's unfair dismissal jurisdiction depends upon, in the case of regular overtime, whether the amount of overtime can be determined in advance. In Foster v CBI Constructors Pty Ltd (2014) FWCFB 1976, a Full Bench ruled that since the employee was subject to an on-going instruction to attend pre-start meetings before work as a matter of course, the amount could be determined in advance and thus was included in his annual rate of earnings.

Defamation in the workplace

During 40 plus years as a practising lawyer, which ended in 2012 when I entered commerce and industry as an airline executive, I specialized in employment law. Hence my current  business, which drives this web-site.
And curiously, media law. Between 1995 and 2012, I was a partner in a 2 partner law firm which I founded, Edwards Wallace, which handled the legal work associated with publishing and broadcasting by most of the media in Western Australia. And now that I look back, I remember many instances in which the subject of defamation in the workplace was raised with me.

Lying in enterprise bargaining

One Commissioner of the Fair Work Commission has taken a remarkably philosophical and sanguine view of what manipulation of the truth is acceptable without being categorized as a failure to undertake good faith bargaining in enterprise bargaining.
Commissioner Cloghan said of an employer’s criticism of the cynical conduct of a union "Contextualising the test for genuinely trying to reach agreement in terms of moral notions of lying, misrepresentation or misleading statements is, in my view, too narrow and focuses upon a moral principle rather than the totality of the MUA's actions in negotiations.

Calculating compensation for unfair dismissal; the principles

Arndt v Crown Business Solutions Pty Limited, Australian Industrial Relations Commission, constituted by Deputy President Ives in Melbourneon 22 July 2003 is often cited in Fair Work Commission judgments as a leading authority on the proper approach to be taken in assessing compensation for unfair dismissal, and as such provides a good illustration of the process for calculation of compensation in the industrial relations commissions. The Commission found the employer had imposed quite unreasonable demands on the applicant to complete a database and dismissal of the employee was based on a failure to meet these demands was not a valid reason for termination.

Dismissal or resignation?

Belbin v IBIS Style Cairns Colonial Club and Resort 2014 FWC 1754 is a very useful case which contains a judicial analysis of what constitutes a dismissal at the initiative of an employer and when it is a termination by the employee.Section 385 of the Act provides as follows:
A person has been unfairly dismissed if the FWC is satisfied that:(a) the person has been dismissed……
Section 386 of the Act provides as follows:Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative;

Re-deployment rather than redundancy

Teterin & Ors v Resource Pacific Pty Limited T/A Ravensworth Underground Mine (2014) FWC 1578 is a very useful case which analyses when it is reasonable for an employer to re-deploy employees in lieu of redundancy. 

Exercise of workplace right

In Ingersole v Castle Hill County Club Ltd (2014) FCCA 450, the Federal Court has thrown out a claim by a former employee that her redundancy was in fact a case of adverse action because she had exercised a workplace right, namely seeking to rely upon her right to be consulted about a possible redundancy and to invoke the dispute settlement procedure which applied to her employment under the modern award.
Her claim was that the respondent club had made her position redundant “so as to prevent the exercise of her workplace rights and/or because she had workplace rights and/or because she proposed to exercise those rights” by preventing the applicant from exercising her rights of “consultation, discussion and complaint”.

Guarantee of annual earnings to avoid award obligations

Under the Fair Work Act 2009 employers and  ‘high income employees’ may enter into what is called a ‘Guarantee of Annual Earnings’ agreement with each other, and thus avoid the application of a modern award which might otherwise affect the employment terms. A guarantee of annual earnings agreement may, for example, avoid an obligation to pay overtime or other penalty rates provided for by a modern award, provided that the agreed terms are at least equal to those provided for by the National Employment Standards.

Calculating the high income threshold

I am unable to locate a persuasive opinion, article or case about the application of the high income threshold to an employee who is taking unpaid maternity leave. The Fair Work Act 2009 of course precludes unfair dismissal applications being brought by employees whose earnings exceed the high income threshold. Sec 333 of the Act defines the high income threshold to be the amount prescribed by, or worked out in the manner prescribed by, the regulations.
Sec 382 provides that a person is protected from unfair dimissal, inter alia, if the sum of the person's annual rate of earnings is less than the high income threshold.

Whether reinstatement will be ordered

In Quinn v Overland [2010] FCA 799Bromberg J held that a break down in trust and confidence will not always be a valid reason to avoid the primary remedy of reinstatement.
“Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable.

Adverse action and general protections Fair Work Act 2009

The Federal Court has thrown out a claim for compensation for adverse action for exercising a workplace right, after the judge decided that  a complaint made about an incident of employment must be bona fide and a genuinely held grievance instead of a mere mechanism to ground the Court’s jurisdiction. In the case, a former employee had complained about and alleged sexual harassment, and then after lengthy negotiations had settled her claim and returned to work. Some months later the employer made her position redundant and she instituted proceedings for adverse action for having exercised a workplace right, under the general protections provisions of the Fair Work Act.

Recent Posts

Drug and alcohol policies; their effect
Implied terms into contracts
Casual or part-time?
Privacy in the workplace
Tactics to undermine good faith bargaining


Absences from work
Adverse action
Annual leave
Bringing actions for unfair dismissal
Bullying at work
Casual employees
Compensation for unfair dismissal
Compensation in employment
Conditions of employment
Consultation required in the workplace
Contract of employment terms
Criminal convictions and the workplace
Defamation in the workplace
Demotion at work
Disciplinary action in the workplace
Discrimination at work
Dismissal remedies
Drug testing in the workplace
Email policies
Employee incentive scemes
Employee rights
Employee rights in a transfer of business
Employment Advice
Employment contracts and the law
Employment remuneration issues
Enterprise bargaining
Equal Opportunity
Fair Work Act
Fair Work Commission practice direction
Fair Work remedies
Flexible working arrangements
Grounds for dismissal
Guarantee of annual earnings
Harassment at work
High income threshold
How workplace rights are protected
Independent contractors
Industrial action
Industrial awards
Instructions by an employer
Interpreting awards and enterprise agreeents
Legal issues in employment
Long service leave
Lying in enterprise bargaining
Minimum entitlements
Modern awards
Notice periods for termination of employment
Offer of alternative employment
Parental and maternity leave
Parental leave
Payment of remuneration
Privacy in the workplace
Recording conversations in the workplace
Redundancy concepts
Remedies in employment law
Representation in the Fair Work Commission
Restraints of trade
Salary, wages and remuneration
Severance payments
Sick leave
Social media in the workplace
Soicial media in the workplace
Termination of employment
Termination of Employment and Probation
Termination of employment by small businesses
Termination of empoyment
The Australian system of employment regulation
Transmission/transfer of business
Tribunal procedures
Unfair dismissal
Unfair dismissal and small businesses
Visa workng rights
Wages and salary
Western Australian workplace rights laws
Workers compensation rights
Workplace bullying
Workplace health and safety
Workplace Right
Workplace rights
Wrongful dismissal
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