As published in CK Momentum Issue 2 (Click here to download)
Employment and Industrial Relations Lawyer, Laura Gercken, given an overview of some major changes to employment law in the past year that business owners should note.
IMPLIED DUTY OF MUTUAL TRUST AND CONFIDENCE
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 so.
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 handed down.
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 change;
- allow the employee to provide their view on the change; and
- consider the employee’s view and the impact of the change.
- 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 care; and
- 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 carer’s leave.
