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"No extra claims" clauses in enterprise agreements may be contrary to the Fair Work Act
Recently a full Federal Court found a no extra claims clause in an enterprise agreement was contrary to the Fair Work Act 2009 (Cth) (the Act). Background In December 2013, Toyota Australia invited its manufacturing workforce to vote on 27 proposed variations to its enterprise agreement to remove out-dated and uncompetitive practices and allowances. Just prior to the scheduled vote, a group of shop stewards launched a challenge against the proposed variations arguing that the no extra claims commitment contained in clause 4 of the enterprise agreement did not allow for the proposed variations. The no extra claims commitment provided that: "…The parties agree they will not prior to the end of this agreement: make any further claims in relation to wages or any other terms and conditions of employment; and take any steps to terminate or replace this Agreement without the consent of the other parties." In the first ins...
18 November 2014New heights for awards of damages in sexual harassment and bullying cases
The days of relatively low awards of damages in sexual harassment and bullying cases are definitely over. As two recent decisions of the Federal Court of Australia and the NSW District Court indicate, where appropriate the Court will make awards of damages that far exceed the previous "range" in federal law of between $12,000 and $20,000. These new awards are said to better reflect community standards that place a significant value on the loss of enjoyment of life, and the experience of pain and suffering. TROLAN V WD GELLE INSURANCE AND FINANCE BROKERS PTY LTD Background On 4 November 2014, NSW District Court Judge Leonard Levy, awarded a victim of systematic sexual harassment and bullying, $733,723 including for past economic loss, past loss of superannuation, future economic loss and future loss of superannuation. The relevant conduct included the offender: pressing and rubbing up against the victim; ...
10 November 2014Confidentiality applies to the support person as well…
The Fair Work Commission (FWC) recently considered if the confidentiality obligations in disciplinary investigations extend to a support person. Background Mr Leighton was engaged as an emergency services officer by MSS Strategic Medical and Rescue (MSS). Mr Leighton also undertook the role of CFMEU site delegate. In December last year, Mr Leighton acted as a support person for a fellow employee, Mr Arnold, in relation to allegations regarding Mr Arnold's conduct in a toolbox talk. MSS provided Mr Arnold with a letter marked "confidential" in relation to the alleged conduct, which Mr Arnold subsequently provided to Mr Leighton. Mr Leighton then forwarded the letter and his response to it by email to the CFMEU and blind carbon copied other members of the work group. MSS subsequently met with Mr Leighton regarding his breach of confidentiality in distributing the letter and issued a final written...
10 November 2014