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High Court Clarifies Adverse Action Onus
The High Court has brought a welcome level of clarity to the threshold question for considering adverse action claims. The following article summarises the main aspects of the decision. Background The Fair Work Act 2009 (Cth) prohibits an employer taking adverse action (or threatening to take adverse action) against an employee where that employee engages (or does not engage) in industrial activity. This includes, amongst other factors, because the employee is (or is not) a member or officer of a union or, because the employee engages or proposes to engage in certain forms of industrial action. Where an application for adverse action is made a reverse onus of proof applies. That is, it will be presumed that the employer took action (or threatened action) against the employee for a prohibited reason unless the employer proves otherwise. For this reason, the question of why the employer took (or threatened to take)adverse action becomes a central issue in determining if i...
12 September 2012Further Confirmation of Trust and Confidence... But This Time With Damages
Introduction Last week in a single member decision of the Federal Court in Barker v Commonwealth Bank of Australia, the application of an implied term of trust and confidence in contracts of employment was confirmed. The existence of an implied term of trust and confidence in Australia has been unclear until recently, where a number of decisions have confirmed its relevance. This decision however, also confirms the type of damages that may be awarded as a result of a breach of the term. The following article summarises the decision and outlines its implications. Background Mr Barker had been employed by the Commonwealth Bank of Australia (CBA) for 27 years and most recently in the position of Regional Executive. The CBA had in place a redeployment policy which stated the process which was to be followed when it was seeking to redeploy an otherwise redundant employee. In February 2009, the CBA undertook a restructure, under which Mr Barker’s...
12 September 2012Federal Court Upholds Site Rates for Labour Hire Workers and more
A protracted matter concerning the validity of enterprise agreement clauses regarding site rates for labour hire workers, right of entry for dispute resolution and the promotion of union membership have been recently upheld by a Full Court decision of the Federal Court. The following article outlines the main findings of that decision. Background On 28 April 2011, Fair Work Australia (FWA) approved the ADJ Contracting Pty Ltd Enterprise Agreement 2010-2014 (the Agreement). Although not being a party to the Agreement, the Australian Industry Group (AiG) and the Australian Building and Construction Commissioner (ABCC) intervened and objected to the Agreement’s approval on the basis that it contained a: site rates provision requiring ADJ to, amongst other things, engage labour hire workers on the same rates of pay that ADJ’s own employees were entitled to under the Agree...
31 August 2012