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Enterprise agreement quashed – no “genuine agreement” by employees
The Federal Court has agreed with the CFMEU to “undo” a two year old enterprise agreement that applied to the employees of One Key Workforce Pty Ltd on the basis that it was not “genuinely agreed” to by employees. Under the applicable legislation, the Fair Work Commission must, before ratifying an enterprise agreement, be satisfied the agreement has been “genuinely agreed” to by the employees covered by it at the time of the approval vote. In some instances, employers seek to make enterprise agreements with a small number of employees who do particular work with the intent of later applying the enterprise agreement to a much broader range of future employees. In this case, the employer asked three current employees who worked exclusively in mining and construction occupations to approve an enterprise agreement that would ultimately cover future employees in 11 occupations including transportation, hospitality and clerical work. The...
8 November 2017Even former bargaining representatives have a right to know the enterprise agreement has been lodged for approval
A Full Bench of the Fair Work Commission has determined that the Fair Work Commission Rules require an employer, when lodging an application for the approval of an enterprise agreement, to notify not only existing but also former bargaining representatives of the application. The failure to do so amounts to a denial of natural justice. Former bargaining representatives do not have an automatic right to be heard but can make an application to be heard on the application. The failure to notify the former bargaining representative of the application being lodged denied them the opportunity to make an application to be heard at the approval of the agreement. In this particular instance, the former bargaining representative that was a union had notified the employer that it wanted to be notified when the agreement was lodged for approval but the employer failed to notify the union. It is important to appreciate that the failure to notify all bargaining r...
4 September 2017Restraint of trade unenforceable when the employer's repudiatory breach is accepted by the employee
For the first time in Australia, a superior Court (the Victorian Court of Appeal) in Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181 (see link below) has decided upon the enforceability of post-employment restraints when the employment relationship ends because of the wrongful conduct of the employer. On the facts, the employer sought to change the employee’s position without consultation. Further, the employer sought to change the conditions upon which the discretionary bonus was payable by not taking into account the personal circumstances of the employee. The requirements to consult about changes to the position and to take into account the employee’s personal position when determining the discretionary bonus were both express terms of the contract. The Court found that the employer unilaterally varied terms of the employment contract which went to the heart of the contract and amounted to a repudiation of the contra...
18 August 2017