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Workplace Services
Employers Given Guidance on Use of Contractors
The recent High Court decision in Gribbles Radiology Pty Ltd v HSUA is very important to employers who use contractors. The decision provides court support for what is common business and industry reality.
Where a business changes contractors (eg: cleaners, security) and there is no change in ownership of the assets, then, provided it cannot be held that the new contractor is not conducting all or part of the old contractors business, there will be no “transmission” of business. This then means that the new contractor is not bound by the industrial awards/enterprise agreements which bound the previous contractor.
Caring Employer Successful in Defence of Unlawful Termination Claim
The Federal Court has found that an employer can defend a claim of unlawful termination. It lends support to employers who do the “right thing” by their employees being looked upon favourably. The situation evolved as follows:
Ø the employee suffered from a depressive illness;
Ø the employer had concerns regarding his work performance and had conducted a number of performance appraisals since his employment;
Ø the Court found the employer had made reasonable efforts to address the performance issues;
Ø following a period of absence, the employee failed to co-operate with the employer’s attempts to discuss returning to work;
Ø the Court found no evidence to support the allegations that his employment had been terminated for any reason other than poor work performance and failure to co-operate;
Ø the Court commented favourably on the employer’s efforts to accommodate the employee’s health issues and had made genuine attempts to improve his performance, and therefore, the employee’s claim was dismissed.
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 (15 March 2005)
AWA’s Stand – You Need to Follow the Rules
An employer is not able to enter into an Australian Workplace Agreement (AWA) and then subsequently change the terms of the agreement to the detriment of the employee. The Federal Court has found that, to change the terms of an AWA, the AWA must be varied and must be approved by the Employment Advocate. Variations not meeting these requirements will not be enforceable.
Therefore, where you are considering entering into an AWA or already have one, care should be taken to ensure that all possible scenarios are dealt with.
In the case in question, the following facts applied:
Ø the employee was a pilot and had entered into an AWA with her employer;
Ø the AWA provided that it could only be varied in accordance with the WRA (Workplace Relations Agreement);
Ø the parties agreed that the employee would undertake specific training, and as a condition of the employer providing the training, the employee was required to sign a Bond Agreement, in which she agreed to reimburse her employer for the cost of the training if she resigned within three years from completion of the training;
Ø she resigned some six months later;
Ø in finding that the employee was not required by the Bond Agreement to make any repayment, the Federal Court expressed the following view:
“if an AWA deals with a particular matter pertaining to the relationship between an employer and employee, then the parties to the AWA can only alter their rights and obligations in relation to that matter in a way which might disadvantage the employee by entering into and obtaining approval for, a variation agreement. By clear implication, the [WRA] prohibits the alteration of such rights or obligations which might disadvantage the employee by means other than those provided in the [WRA] and renders ineffectual any agreement which purports to do so” .
Ø the Court found that training and termination of employment were both dealt with in the AWA. It was therefore not possible to subsequently alter those terms and conditions by the Bond Agreement.
Ø the Court concluded that, as the Bond Agreement concerned aspects of matters dealt with in the AWA, and as it imposed an additional burden on the employee, it was necessary for the parties to have made a variation agreement and be approved by the Employment Advocate. As they had not done so, the Bond Agreement was unenforceable.
McLennan v Surveillance Australia Pty Ltd [2005] FCAFC 46 (24 March 2005)
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