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Coalition moves to amend fair work system
Words mean what they say in employment contract
Obligation to consult on redudancies
Extended parental leave
Adverse action from redundancy

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Coalition moves to amend fair work system

The Coalition’s proposed amendments to the Fair Work system have been introduced into Parliament on 27 November by Minister Pyne who tabled the Fair Work Amendment (Bargaining Processes) Bill 2014. The most important proposal requires the Fair Work Commission when dealing with applications to register enterprise agreements except greenfields deals to be satisfied that parties have addressed potential productivity improvements during the bargaining process.
The Bill does not go so far as requiring agreement on productivity but in the Minster’s words "to make sure parties have at least considered how productivity in their workplace could be improved.

Words mean what they say in employment contract

The Supreme Court of New South Wales has turned back the clock a tad and ruled that clear words in a contract mean what they say. A bank executive sued ANZ bank for damages for breach of contract (seeking 9 million dollars) when it summarily dismissed him after forming the “opinion” that he had been guilty of serious misconduct (leaking and adding denigrating words which embarrassed the bank to  a journalist), rejecting his claim that it had to prove the misconduct of which he was suspected.

Obligation to consult on redudancies

In an amazing case of the pot calling the kettle black, the CFMEU has persuaded a company to cop a huge fine by consent for failing to consult with the union once it had made a decision to introduce some mass redundancies.
Federal court justice Emmett questioned the parties  whether the $19,000 penalty, which as she pointed out was about 40 per cent of the maximum provided for by the legislation, was "manifestly excessive" given that the employer had no prior contraventions, it had conceded liability, had taken immediate steps to consult once it decided on the restructure, had compensated the employees and had cooperated in the joint submission.

Extended parental leave

An employee who takes unpaid parental leave under the National Employment standards is entitled to ask his or her employer to agree to an extension of unpaid parental leave for a further period of 12 months immediately following the end of the available parental leave period (Fair Work Act 2009, sec 76) The request must be in writing and must be provided to the employer at least 4 weeks before the end of the available parental leave period. Like flexible work arrangements, the request can only be declined by an employer on reasonable business grounds but the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after the date of birth of the child.

Adverse action from redundancy

The Federal court has acknowledged that the choice of an employee by an employer for redundancy following the making of a complaint about bullying and harassment out of an ideological dispute at a university and for the holding of political views could constitute unlawful adverse action but in the particular circumstances the evidence did not establish the allegations.
Heathcote v University if Sydney (2014) FCCA 613 delivered on 14 November 2014

 

Reinstatement for adverse action

A Federal court decision, admittedly decided before Barclay's case, contains a particularly useful analysis of the difficulties faced by an employer in the context of the reverse onus of proof in general protections applications where the decision maker is not called to give evidence. The case also demonstrates some of the principles to be applied in determining whether reinstatement is an appropriate remedy; in this case it was, in lieu of compensation, considered by the judge to be an adequate remedy in the circumstances, but the employer was fined too.

Restraint of trade

The Tasmanian Supreme Court has upheld a 6 month stat wide restraint of trade and in doing so it has rejected a claim by the former employee that the restraint was void for uncertainty and unreasonableness.
Justice Blow held that it was clear that the employer company had sought to impose a restraint which was to apply for a maximum of six months, extend throughout the State and prevent the employer, a former branch manager, working for or being involved in any competing business.
The judge also ruled that the employment contract provided sufficient detail about time, geographical and categories of sale activities for him to hold that the clause was not void for uncertainty.

Interpreting contracts of employment

In an interesting decision, a Full Bench of the Western Australian Industrial Relations Commission has upheld an appeal by Qantas in a denied contractual benefit claim in which the Commission ruled that it could imply into the contracts of service of two Qantas employees that they had the right to share a job. Acting President Smith said that "To satisfy the test for implication of a term on grounds of custom and usage, the evidence must establish that the practice relied upon is uniform, notorious, reasonable, certain, and that the standard of proof required to establish a custom is high.

Unfair dismissal; constructive dismissal

An employer has been ordered to pay compensation for unfair dismissal to an employee who was advised that unless she accepted a substantial reduction in salary she would be regarded as having resigned; even though the Fair Work Commission concluded that the requirement to accept lesser remuneration was not of itself manifestly unfair and if handled correctly would not have constituted unfair dismissal.

Johnson v Zehut Pty Ltd (2014) FWC 7496 delivered 10 November 2014

Workplace right

In a leading Federal Court decision about what constitutes a workplace right, Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271,Justice Dodds-Streeton  noted that the Fair Work Act in its definition of “workplace right” did not contain a definition of the word “complaint.” Having reviewed the authorities she held that a complaint could be treated as having been made if the “relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”. Her Honour also held that the source of the employee’s ability to make such a complaint could be founded in his or her contract of employment. Such a contract could incorporate policies, such as grievance policies, which conferred rights and imposed duties on employees and employers.  
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