Q1

a).

Issue

The issue is whether the initial refusal of the agency to negotiate with the union preferring instead to negotiate with individual employees, the last minute cancellation of meetings by the management of the agency, and the agency’s response to Stella’s emails constitutes breaches of any bargaining obligations?

Rule

• Section 228(1) of The Fair Works Act 2009(Cth) places a number of good faith bargaining obligations on bargaining representatives.
  • Under s.228 (1) (a), there is an obligation to attend and participate in meetings at reasonable times. This obligation include the requirement to meet with union delegates to negotiate an enterprise agreement (AMWU V Galintel Rolling Mills Pty Ltd t/a The Graham Group [2011] FWA 6326)
  • Under s.228 (1) (b), there is an obligation to disclose relevant information in a timely manner except that this duty does not include confidential or commercially sensitive information. An employer that has not asserted incapacity to pay a wage increase sought is not required to disclose information about its financial affairs (Queensland Nurses’ Union of Employees v TriCare Limited [2010] FWA 7416).
  • 228 (1) (c) places the obligation to respond to proposals made by other bargaining representatives in for the agreement in a timely manner. Thus, orders have been made requiring responses in circumstances where there were no responses for over six months(AMWU v Cochlear Limited [2012] FWA 5374)
  • 228(1)(d) requires the giving of genuine consideration to the proposals of other bargaining representatives. Parties must, therefore, required to engage in the mechanics of bargaining as opposed to adopting a disinterested approach(Endeavour Coal Pty Limited v APESMA [2012] FCA 764)
  • 228 (1) (f) requires the recognition of the other bargaining representatives for the agreement. It is, therefore, a breach to bargain directly with employees knowing that there is a bargaining representative but not giving them the opportunity to be involved(CEPU v Pro–Built Control Pty Ltd[2013] FWC 2640).

Application to facts

The initial response of the Agency was that it wanted to negotiate directly with its employees on terms. This was a breach of s.228 (1) (f) obligation to recognise the other bargaining representives which is the union in this case. In CEPU v Pro–Built Control Pty Ltd ,it was held that it may be a breach to bargain directly with employees knowing that there is a bargaining representative but not giving an opportunity to be involved. The agency seems to have remedied this problem by abandoning the quest to directly agree terms with its employees.

For five times, Stella has arranged to meet the Agency management but each of these plans has been cancelled at the last minute on the notification of the management. This is a breach of s.228 (1)(a) obligation to attend and participate in meetings at reasonable times. It was held in AMWU V Galintel Rolling Mills Pty Ltd t/a The Graham Group that this obligation include meeting union delegates to negotiate an enterprise agreement.  The actions of the management, therefore, constitute a clear breach.

The Agency’s response to the list of terms forwarded by Stella is also telling. Under s.228 (1) (c), the Agency is obligated to timely respond to those terms in a timely manner. For instance, it was held in AMWU v Cochlear Limited that failure to respond for over six months was too long. The Agency actually did respond by sending an update of an expired agreement. There have, however, been no responses to the topic of salary increments of employees who achieve higher educational qualifications making the agency to be in breach. It is also not enough to simply respond to the proposals of the other bargaining representatives. Under s.228 (1) (d), the Agency must give a genuine consideration of those proposals. In Endeavour Coal Pty Limited v APESMA, it was held that the parties must engage in the mechanics of bargaining. Simply sending an update of an expired agreement as the Agency did does not satisfy this requirement.

The Agency has also not replied to Stella’s request for total wages cost and total income of the Agency over the last period. Under s.228 (1) (b), the agency would be under an obligation to disclose this information it would be relevant for the negotiations provided that it is not confidential and commercially sensitive. There is no question that the information sought is relevant as it would help the parties know the extent to which the Agency can meet the terms of any new agreement. It was, however, held in Queensland Nurses’ Union of Employees v TriCare Limited that an employer who has not asserted inability to pay a wage increase need not disclose information about its financial affairs. The Agency has not indicated that it would be unable to pay the wage increase so that its failure to supply the information requested by Stella would be very much in order.

Conclusion

The Union can indeed complain to the Fair Works Commission that the Agency is in breach of its good faith bargaining obligations.

b).

Issue

What particular requirements must be met for protected industrial action to take place?

Rule

The requirements for protected industrial action are set out in the Fair Work Act 2009(Cth).

Under s.413 (6), the industrial action must occur after the nominal expiry date of the existing enterprise agreement. It must also occur only after being authorised by a ballot and lastly that it must follow at least three days written notice to the employer.

Application to the facts

The current agreement seems to have reached its nominal expiry date as evidenced by the fact that the Agency responded to Stella’s proposed terms by updating an expired agreement. It follows from this that the first requirement for a protected industrial action is met.

The next step would be for the union to apply for a protected ballot action order from Fair Works Commission (FWC). At least 50% of the employees sought to be covered by the proposed agreement must participate in the ballot and 50% of those voting must support the agreement. Once this threshold is met, the Union can then give the Agency at least three day’s notice before embarking on any industrial action.

Conclusion

Given that the current enterprise agreement is already expired, the Union should apply to FWC for a protected ballot action order and in the event employees support the agreement, then the Agency should be give a notice of three days before embarking on industrial action.

Q2).

a).

Issue

The issue is whether Mack’s contract of employment in which his role is that of a research assistant involving entering data on various surveys contains a term that he adapts to the sales role?

Rule

Where employer and employee agree to an alteration of employee’s duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract as varied, contained terms objectively appropriate to the new relationship created (Quinn v Jack Chia).

Application to facts

The basic precepts of contract law are that the duties and obligations in any contractual arrangement can only be gathered from that specific contract. Some of these may be express but other terms can be implied given the surrounding circumstances. It would, therefore, be expected that the obligations that Mack has under his contract of employment with RDL can be gleaned from the contract they have with each other.

It was held in Quinn v Jack Chia that a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old where employer and employee agree to an alteration of employee’s duties and responsibilities which is profound. For well over a decade, Mack’s contract has specified his role as a research assistant. It would, therefore, be safe to assume that accepting to adapt to the sales role would result into a new contract between him and RDL. The logical conclusion of this is that his current contract does not obligate him to adapt to the sales role.

Conclusion

Mack has no contractual obligation to adapt to the sales work as his agreeing to so adapt would amount to a new contract between the parties.

b).

Issue

The issue is whether RDL can dismiss Mack without a notice given that he is working on a two year contract of employment without a notice of termination clause as well as the fact that he is near the end of his sixth such contract?

Rule

An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given)(Fair Work Act 2009 s.117).The provision relating to the notice of termination does not, however, apply to an employee employed for a specified period of time, for a specified task, or for the duration of a specified season (s.123 (1) (a) Fair Work Act 2009). The exclusion of the notice of termination requirement does not apply in situations where the substantial reason for employing the employee under a specified period is to avoid the obligations under the division(s.123(2) Fair Work Act 2009).

Application to the facts

The general tenor of s.117 is that an employer must give a notice of termination to an employee. This would mean that RDL is generally unable to dismiss Mack without a termination notice. Matters are, however, slightly alleviated by the fact that s.123 (1) (a) exclude employees employed for a specified period of time from the notice of termination requirement. RDL may, therefore, argue that they are not obligated to issue any notice of termination to Mack. Such an argument is, nevertheless, not conclusive as s.123 (1) (a) does not apply if it is shown that the main reason for employing the employee under a contract for a specified period is to avoid the protections. Mack can actually argue that this is particularly the case given that he has been working for RDL under a series of two (2) year contracts for over a decade now.

Conclusion

RDL cannot dismiss Mack without giving a notice of termination because Mack can easily argue that RDL had specifically employed him under the two year contracts so as to exclude their relationships from the protections of the Act.

Q3).

a).

Issue

The issue is whether the redeployment policy of Federation Bank that indicates that it redeploy’s redundant staff created a duty to redeploy Bradley?

Rule

There is no implied term of mutual trust and confidence in an employment contract although the question as to whether there is an implied term of good faith is open (Commonwealth Bank of Australia v Barker).

Application to the facts

In Commonwealth Bank of Australia v Barker, the respondent had been a longstanding executive of the bank. His position was made redundant during a restructuring. The bank had a policy of doing as much as it could to redeploy its staff that became redundant. The respondent was, nevertheless, made redundant as he could not be redeployed within the bank. He brought an action against the bank claiming that the bank was in breach of a duty to redeploy contained in the banks redeployment policy. The full Federal Court held that there was an implied term of mutual trust and confidence in every employment contract such that the bank was under a duty to fully its redeployment policy when dealing with Mr. Barker. This was overturned by the High Court while living open the possibility of the existence of a duty of good faith.

Likewise, there was no express duty on Federation Bank to follow its redeployment policy when dealing with Barker. Having been assured that every effort would be made to redeploy him, the bank can be said to have been in breach of an implied duty of good faith when it failed to make any communication with Barker until the time a termination letter was sent to him.

Conclusion

Federation Bank had assured Barker that every effort would be made to redeploy him. The failure to make any further communication with him until the time he was terminated was, therefore, a breach of the implied duty of good faith and consequently a breach of the redeployment obligations.

b).

Issue

The issue is whether the fact that Bradley is 48 years old, has worked for the Bank for 7 years for the bank entitle him to a longer period of notice for his termination from Federation Bank?

Rule

The minimum period of notice for an employee with a five(5) year continuous period of service under the employer at the end of the day the notice if given is 4 weeks(S.117(3)(a)Fair Work Act 2009).The minimum notice period is increased by 1 week if the employee is over 45 years and has completed at least 2 years continuous service with the employer at the end of the day notice is given(S.117(3)(b) Fair Work Act 2009).

Application to facts

Under s.117 (3) (a), the minimum notice period that an employer has to give an employee of over 5 years of continuous service is 4 weeks. The 4 weeks that Federation Bank has given Bradley already meets this minimum notice period requirement.  There is, however, an additional notice period under s.117 (3)(b) requiring that 1 week is added to an employee who is over 45 years and has completed at least 2 years continuous service with the employer at the end of the day the notice is given.  At 48, Bradley is clearly over 45 years meeting the age requirement. He has also worked with Federation Bank for 7 years further meeting the 2 years continuous service requirement.

Conclusion

Federation Bank should give an additional 1 week period of notice to Bradley given his age of 48 which is over 45 coupled with the fact that he has worked with the bank for 7 years.

 

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