In 2013, the Federal Court said that in every Australian
employment contract, there is an implied term of mutual trust and
confidence, unless it has been expressly excluded in the employment
contract. The scope of the implied term will depend on the nature
of the employment relationship. The case involved an employee of
the Commonwealth Bank who had been employed as an Executive Manager
for approximately 23 years. In 2009, the employee was made
redundant. The Commonwealth Bank had a policy dealing with
redundancy which it did not follow. This policy was not
incorporated into the employment contract.
The Court decided that by failing to follow the policy, the
Commonwealth Bank breached the implied term of mutual trust and
confidence not to act in a manner that was likely to destroy or
seriously damage the relationship, without a proper cause for doing
The decision has created controversy as the ramifications for
employers are onerous. The Commonwealth Bank has appealed to the
High Court and we will provide an update when the decision is
CHANGES TO FAIR WORK ACT
BULLYING: The Fair Work Commission's new
jurisdiction to deal with workers who feel they have been bullied
commenced on 1 January 2014. The Commission may make an order to
stop bullying if a worker has been subject to repeated unreasonable
behaviour which creates a risk to health and safety.
The term 'worker' includes volunteers, students gaining
work experience and contractors.
CHANGING ROSTERS: Employers must also now
consult with employees in relation to changes to their regular
roster or ordinary hours of work.
An employer must:
Provide the employee with the information about the
Allow the employee to provide their view on the change;
Consider the employee's view and the impact of the
UNFAIR DISMISSAL: General protections and
unlawful dismissal claims may now be arbitrated by the Fair Work
Commission. Previously, if a conciliation conference failed, the
next step for an aggrieved employee was to initiate court
proceedings. Now, the employee (if the employer agrees) can have
the dispute arbitrated by the Commission, which can make an order
that the parties must follow.
WHEN CARER'S LEAVE MAY BE TAKEN
In late 2013, the Fair Work Commission provided clarity about
when carer's leave may be taken in a case involving a woman and
her husband who were both fly-in fly-out employees of the employer.
They were on the same roster and were required to work 7 days at a
time. During a school holiday, they had arranged for a friend to
look after their son. Four days before the woman was due to fly
out, the friend suffered a family emergency and was no longer able
to care for the son. As a result, the woman was required to remain
at home with her son and claimed carer's leave for doing so.
The employer refused to provide the woman with carer's leave,
because the circumstances were not those of an 'unexpected
emergency affecting the family member', as required by the
employment contract and the National Employment Standards, because
the emergency affected the friend, not the child. In addition, the
woman had four days before flying out to arrange alternative care
for her son.
THE COMMISSION FOUND THAT:
The term 'unexpected emergency affecting the member'
was broad enough to cover an emergency affecting the proposed
caretaker because it was the child who was left without care;
The woman had taken all reasonable steps to find alternative
She had since changed her shift pattern so that she and her
husband were no longer on the same shifts to avoid the same
situation arising in the future. This showed her bona fides.
The Commission noted that the circumstances of other cases may
differ but in the current case, the woman was entitled to
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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