1. Issue
Rule
According to the Fair Work Act 2009 (Cth) (FWA), unions speak on behalf of the employees and act as bargaining representative in the negotiation process as was held in Re: Inghams Enterprises Pty Ltd [2011]. In case, the parties are unable to reach agreement on the terms and conditions of the proposed enterprise agreement, a bargaining representative may approach the Fair Work Commission for assistance.
Application
In this case, Stella being an industrial organizer wanted to negotiate a new enterprise agreement with the Regional Transport agency about salary increments for highly-qualified employees but the Agency did not engage into any negotiation or bargaining process despite several mails sent by the Union. Under circumstances, the Union is entitled to make complaint before the Fair Work Commission for assistance regarding enterprise agreement negotiations.
Conclusion
Stella shall have to make application before the FWC to initiate lawful industrial action
Issue
Rule
Under the FWA, Secret ballots are required prior to the commencement of any protected industrial action. Before conducting a secret ballot action, an application should be made to Fair Work Australia, which must grant the secret ballot action.
Application
In regards to the industrial action, Stella should apply before the Fair Work Commission for approval regarding commission of secret ballot action. Since the enterprise agreement expired, she may undertake protected industrial action.
Conclusion
The union may make compliant to the FWC regarding approach of agency towards the enterprise agreement negotiations.
2. Issue
Rule
The law protects workers from unfair dismissal at the work place from early dismissal, an employer cannot dismiss an employee if he or she has not completed the minimum employment period. This is the early stage, which covers a period of six months since the employee was hired. Unless, the employee work under an employment contract that specifies the work to be done by the employee, the employer is entitle to change the job duties at any time.
At the time of redundancy, the employer must consult with the employees regarding the redundancy. Dismissal of employees without complying with the consultation requirement to consult with the employees about the redundancy does not amount to genuine dismissal on redundancy ground under section 389 of the FWA 2009 (Cth).
Application
Mack has been research assistant at RDL for over a decade and has been working under employment contract, which specifies his job duties. Since his contract was ending and the company was restructured, the employer is entitled to change the duties of the employee.
Conclusion
Mack is obligated to adapt to the changed sales work as his employment contract was about to end. Hence, RDL was entitled to change his job duties.
Issue
Rule
Dismissal of employees without complying with the consultation requirement to consult with the employees about the redundancy does not amount to genuine dismissal on redundancy ground under section 389 of the FWA 2009 (Cth). The employer must provide the employee with another job within the employer’s business, to make the dismissal as genuine dismissal. Notice of termination is not required to be given to employee who are employed for specific time period, for instance, working under a fixed term of contract.
Application
RDL provided Mack with new duties after the restructuring of the company, which complies with the legal provisions of FWA that the employer has provided the employee with another job within the employer’s business during restructure of business. There was no need to provide notice of termination to him as he was working under a fixed term of contract for 2 years.
Conclusion
Hence, Mack’s dismissal without notice would be justified of he continues to refuse to perform his duties.
3. Issue
Rule
According to section 389 of the FWA 2009 (Cth), an employer must offer redeployment opportunities to employees whose role has been made redundant, within the same enterprise. This redeployment obligation is applicable to all form of redundancies whether it is due to advancement in technology or due to restructure. In Iryna Magolina v Jenny Craig Weight Loss Centres Pty Ltd [2011], it was held that employers are obligated to comply with section 389 of the FWA. The reasonableness of redeployment depends upon the nature of employment, skills, etc.
Application
Bradley has been assured that he would be given deployment opportunities, as it was reasonable for the bank to provide him with redeployment opportunities depending on his skills and qualifications and nature of employment. He had been working for the bank for seven years and the employers must comply with section 389 of the Act.
Conclusion
Hence, the Bank had breached their deployment policy under section 389 of the FWA.
Issue
Rule
According to the traditional view where an employment contract is silent on notice of termination, the law implies a reasonable period of time within which the employer shall serve notice of termination as was held in Byrne v Australian Airlines [1995]. Under the Fair Work Act, the minimum reasonable period of termination of notice, to be served for employee who has been working in the company for more than 5 years, should be served at least 4 weeks’ notice.
Application
Bradley has been working in the bank for seven years and since his employment contract was silent on termination notice, he shall be entitled to 4-week notice of termination from bank under FWA. The bank has served a 4-week’s termination notice to Bradley.
Conclusion
The bank has complied with the FWA regarding the notice period to serve the termination notice and there was no need to provide longer period to serve termination notice upon Bradley.
4. Issue
Rule
Employees covered by awards are entitled to minimum wage and the National Employment Standards (NES). They are entitled to minimum wage depending on their pay, hours of work and overtime under the FWA 2009.
Application
Margaret was covered by awards and shall be entitled to minimum wage based on the hours of work she puts in and the time during which she prepares the learning materials.
Conclusion
Margaret can make claim under FWA 2009 (Cth) to be entitled to her minimum age as per the NES and minimum wage.
Issue
Rule
Under the FWA 2009 (Cth), the employee must communicate the employer about any offer or profit that she would earn during the course of employment. Any profit earned from other source during the course of employment shall be disclosed to the employer.
Application
Margaret must disclose the corporation offer to purchase her tool to the principal as such tool was discovered during the course of employment while she was preparing the learning materials.
Conclusion
She must disclose the offer to the employer as the tool was invented during course of employment.
5. Issue
Rule
Employers cannot suspend an employee even if the employee has been involved in misconduct and even if the employee is dismissed, his contractual rights cannot be impaired. If there is a contractual or statutory right that enables an employer to suspend the employee, the employee cannot work and the employer cannot pay wages.
Application
Jocelyn cannot be suspended for engaging in misconduct unless the employer has contractual rights to suspend the employee. Since Jocelyn has been dismissed but has been receiving her fortnight wages, the hospital has not breached its duty as an employer.
Conclusion
The hospital has not breached the duty in relation to Jocelyn’s suspension.
Issue
Rule
Western children hospital is entitled to dismiss an employee upon misconduct and unethical behavior towards a patient where the misconduct is serious in nature.
Application
Although it is possible to make the dismissal, it is also fair for the hospital to make speedy inquest and investigation to the matter since it is only an allegation. If Jocelyn is proved guilty of misconduct, she should be dismissed. However, she can make a claim of unfair dismissal if the process is time consuming as it affects the reputation.
Conclusion
Jocelyn may claim unfair dismissal if she resigns from the hospital.
Q1 Issue
Rule
A contractor run their own business and decides how they undertake work. An employee is subjected to the control exercised by their employer. However, if an individual is classed as a ‘contractor’ for taxation purpose or have an Australian business number, it would not imply that he is an independent contractor. The employer may consult the employee about the changes to be made in the job duties due to any change in the organization.
Application
Billy had Australian business number and his tax payments does not make him a contractor. He is an employee working for Quick Insurance as per the common law test. The request made by Quick did not breach any legislation as FWA permits employers to consult about any changes in job duties of the employer due to any change in the organization.
Conclusion
Billy is an employee as per the common law test working under Quick Insurance and the Quick’s request is legal.
Q2 Issue
Rule and application
As per the FWA 2009 (Cth), the dismissal of an employee is not genuine when the employer dismisses such employee and hires another employee to perform the same work. The employee should be provided with redeployment opportunities depending on the age, position, skills and qualifications.
Application
Upon redundancy, the company failed to provide redeployment opportunities depending on the number of years and skills of the employee. Further, it had hired other staffs to perform her part of the work.
Conclusion
The company has breached the common law of failing to discharge their duty in good faith while terminating Julie’s contract.
Did the company owe the complainant Julie additional period of notice under common law and legislation?
Rule
The company rule is that it should give additional time of notice in order for there to be room of transition for the employee.
Application
Julie has not been provided with additional time to serve the notice of termination as per the statute thus amounting to breach of the Common Law legislation.
Conclusion
Julie can make claim to the company for unlawful dismissal with limited period of notice given and without any deployment given to her.
Q3 Issue
Does Ally Pty ltd have a right to Xaviers patent?
Rule
The copyright Act 1968 establishes that if an apprentice or employee in the course of their employment, the employer will own the patent or copyright of any works that are created by the employee. However, in the patents Act 1990, there is no express term concerning ownership of patentable invention of some value which has created significant controversy for employers.
Hence in the absence of any express contractual terms, determination of ownership of invention is done under common law principles. The employer owns the patent and copyright of an invention created by an employee if it is related to the business.
Application
In this case, Ally Pty ltd will not claim ownership of the invention created by Xavier, because it is not in the industry that the company is dealing with. Xavier has invented an engine that is related to the motor sport industry while the company (.Ally Pty ltd) deals with mining. They therefore cannot claim ownership of the patent. Xavier has not breached any common law duty owed to Ally.
Conclusion
The company cannot claim ownership of the patent since the invention made is not related to the industry, thus, Xavier has not contravened any common law duty that he owed to Ally.
Issue
Is Cindy in breach of common law duty in regards to working an extra hour?
Rule
Under common law the employees have a duty towards the employers in the same way employers owe to the employees. There is a fiduciary relationship between employee and the employer. In the case of Quinn v Jack Chia ( Australia ) Ltd [1992] it had been ruled by the court that the employee has a duty to ensure that they act reasonably like a reasonable employee would do in the situation.
There is no direct requirement under common law which punishes an employee who has refused to work overtime for the employer. Forcing a change in the employment contract can moreover result in the violation of common law by the employer.
Application
In the given situation it has been provided that Cindy has been asked to work for additional hours by her employers. Such a term was not mentioned in her employment contract. a reasonable person placed in the position of Cindy would also not work for additional hours to compensate for hours which had been not worked previously.
Conclusion
Cindy has not violated any common law provisions by refusing to work for additional hours
4b) Issue
Can Cindy make unfair dismissal claim if she resigns from her Job?
Rule
In the case of Brown v Premier Pet t/a Bay Fish [2012] provisions in relation to a constructive dismissal had been discussed. I had been ruled in this case that where the employee has resigned due to an unfair policy introduced by the employer or a change in the employment contract without consent of the employee it would constitute a constructive dismissal.
Application
In the given situation it has been provided that the employers of Cindy want to change the employment contract and appoint her as a part time employee. Thus if Cindy resigns it would lead to unfair dismissal
Conclusion
Cindy cannot make any claim on unfair dismissal of the job if she resigns willingly. The company has not breached any contract on her duty.
Issue
Measures required for approving any agreement
Rule
Any change in the employment contract has to be done through appropriate consent of the employees. In order to change agreement with independent contractor no consent is required as they may accept or reject the agreement based upon their will
Application
In the given situation the agreement changes which would be applicable on the permanent employees have to be duly discussed with them before they are imposed. The union has to be consulted before implementing the changes. The changes in relation to other casual workers do not require any consultation.
Conclusion
The above discussed procedure needs to be adopted.
Issue B
What are that methods of Alternative dispute resolution
Rules
The methods of alternative dispute resolution are Negotiation, conciliation, mediation and arbitration
Application
Joe may use arbitration which involves solving the dispute through the appointment if an Arbitrator whose decision is binding.
Joe may use mediation where a their party facilitates communication to reach a decision.
Joe may use negotiation through which parties to the dispute may discuss the conflict and come to a solution.
Conclusion
The above mentioned process can be used by Joe of ADR
Issue:
Does stylish stone pay have to pay sandy and workers on a go slow campaign?
Rule
Slowing down campaign is used by employees to gain remuneration while under performing. However such campaigns are punishable under common law. The employers under such campaign have the right to not pay the employees who intentionally do not perform their duties.
Application
In the given situation it has been provided that the employees of stylish stone have intentionally gone on a Slow down campaign and therefore stylish stone has no liability to pay them for the work which is not done by them. Under the Fair Work Act, employees can go on a go slow under limited circumstances. First, is when bargaining for an agreement. The term goes slow or strike is a protected industrial action. A protected go slow or industrial action limits the time when the employees take industrial action or when they are on a go slow (Busse 2004). According to the common law, if the go slow is not protected, Stylish stone can decide not to pay Sandy and his workmates for the work they undertake during the go slow
Conclusion
Stylish stone may avoid paying the employees who are intentionally not working
Issue B
Can Stylish stone dismiss the employees?
Rules
The FWA section 389 provided protection to the employees from being unfairly dismissed by the employer. However where the employees intentionally violate a common law duty and make unreasonable demand the employees can be dismissed for protecting business interest.
Application
As the employees are intentionally slowing down the work and causing difficulties to the business to carry on its operations effectively amidst unreasonable demands they can be dismissed by Stylish stone. The dismissal would not account as unfair dismissal
Conclusions
Stylish stone can dismiss the employees
Issue
Does XXX Pty ltd have a right to Bruce patent?
Law
The copyright Act 1968 establishes that if an apprentice or employee in the course of their employment, the employer will own the patent or copyright of any works that are created by the employee.
However, in the patents Act 1990, there is no express term concerning ownership of patentable invention of some value which has created significant controversy for employers.
Hence in the absence of any express contractual terms, determination of ownership of invention is done under common law principles. The employer owns the parent and copyright of an invention created by an employee if it is related to the business.
Application
In this case it has been provided that the invention which has been made by Bruce has been done during the course of employment. Although Bruce was sometimes off duty he still worked in the invention while he was in duty and was working for XXX. He also used their facilities to create the invention.
In addition the invention is related to the industry that the company is dealing with which is related to mining.
Conclusion
According to the common law the patent belongs to the employer..
Issue B
Bruce has breached common law duty owed to XXX by starting his own business.
Rule
An employee has a common law duty not to compete with the employer during the course of employment or in case of a restrictive covenant. Where such duty is violated the employee has committed an employment offence.
Application
In the given situation Bruce has not violated the provisions of common law as he is not giving any direct completion to XXX ltd who particularly deals with large contracts.
Conclusion
The common law duty has not been violated
Issue
Is Rowena’s dismissal lawful under the common law?
Rule
According to the FWA an employee can only be dismissed for fair and just reasons. If the employee who has been working for more than two years has to be dismissed such employees are to be provided with reasonable notice before dismissal. Where no notice is provided the employee can only be dismissed for a gross misconduct.
Application
The policy of the club has changed. Although, Rowena’s issue of wearing sandals is necessitated by the effects on her body, the club is lawfully allowed to dismiss her due to the company’s policy under the common law. However the club had to provide notice before such dismissal is made but not notice was provided by the club. Therefore such act is considered as an unlawful dismissal.
Conclusion
The club is not lawful in dismissing Rowena
b Issue
Can Rowena make unfair dismissal claim?
Rule
An unfair dismissal claim can be made under the FWA where prior notice has not been provided by the employer
Application
Rowena can make unfair dismissal claim. It can be successful sine at the beginning of her employment she had disclosed the issue. It would be unfair to dismiss her because of her health issues without giving a notice.
Conclusion
Rowena can make a successful unfair dismissal claim under the FWA
Issue
Assistance provided by Federal Tribunal to the Union and relevant standard of bargaining
Rules
The federal tribunal has the right to ask an employer to mandatorily conduct a meeting or be a part of the meeting with the union if the employer is deliberately not listing to the requests of the union.
The relevant standards of bargaining is at least face to face meetings
Application
In the given situation it has been provided that EE is deliberately not conducting a meeting with the union and therefore to establish minimum standard of bargaining the Tribunal can make the meeting of EE with the union Mandatory.
Conclusion
The above discussed procedure would be followed
Issue
Procedure for lawful resections
Rule
To ensure lawful restriction compliance with legal provisions are required.
Application
Union needs to follow all relevant law
The above discussed procedure would be followed
Issue
Identifying the type of dispute resolution
Rule
Arbitration is the best form of dispute resolution in case where the dispute is complex. In this kind of process a third party having sophisticated knowledge about the issue resolves the dispute between the parties by analyzing the facts of the dispute and makes a decision.
Application
In the given situation as the issue of privacy is very complex the best form of dispute resolution which may be conducted by the agency is that of arbitration.
Conclusion
The best possible process is that of arbitration
Issue B
Would the actions of fast bikes to stop testing result in the breach of employee duties
Rules
It is the duty of the employee to provide assistance in any drug testing which has been initiated by the employer. A failure to do so is the breach of common law duty
Application
If fast bikes do not allow for the conduction of the drug testing process they would breach the common law duty owed to the employer
Conclusion
The common law duty would be violated
Issue
Is Julie in breach of common law duty in regards to working an Saturday morning?
Rule
In common law, additional hours on duty is not illegal. It is lawful to work additional hours as long as there is compensation on the work done.
Application
Under common law, an employee has a duty to work extra hours if required as long as he/she is willing and is duly compensated.
Conclusion
For Julie to refuse to work and claim that she will resign, she is in breach of the common law duties that relates to additional working hours and compensation of the same.
5b) Issue
Does Julie have the legislative right to refuse to work on Saturday?
Rule
The work can be refused if the work is not reasonable and was not provided in the employment contract
Application
Julie has legislative right to refuse to work on Saturday. This is because her due have sometimes been paid late and is not under her contract to work on that day.
Conclusion
Julie cannot make any claim on unfair dismissal of the job if she resigns willingly. The company has not breached any contract on her duty.
Reference list
Brown v Premier Pet t/a Bay Fish [2012] FMCA 1089
Byrne v Australian Airlines [1995] 185 CLR 410 at 450
Fair Work Act 2009 (Cth)
Iryna Magolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215
Quinn v Jack Chia ( Australia ) Ltd [1992] VR 567
Re: Inghams Enterprises Pty Ltd [2011] FWAFB 6106
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