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Even 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 2017Don’t run whenever an employee says that they were dismissed because they made a complaint
Recently, the Federal Circuit Court determined that an employee who was dismissed by the Regional Health Care Group was dismissed not because he had made a complaint about his employment but because of his performance and conduct. Background The employee alleged that he was subject to bullying and harassment by his supervisor at the warehouse where he worked for the employer. The employee sought to report the incident to senior management. The employer subsequently investigated the incident while the employee was stood down. The employer dismissed the employee for misconduct arising out of the investigation. The employee alleged the dismissal was because of his complaint. The employer alleged that he was the aggressor in the incident and dismissed him for that reason. Findings The Court considered the evidence and acknowledged there were some inconsistencies in the evidence given by the employer. However, they “only represente...
11 July 2017