workplace law assignment
yolac
BSL202L42016.pptxBSL202 Workplace Law
Lecture 4
Formation of the contract
Advertisements usually form no part of the employment contract
Invitations to treat only
Discussion in interviews will not automatically become part of the contract
Representations only
Pre-employment screening
Statutory law may provide some relief to employment applicants who have been promised ’benefits’ of employment
Advertisements, interviews and other negotiations
Schedule 2 ACCA (Cth.) s31 (Australian consumer law) prohibits conduct which is likely to mislead applicants in relation to offers of employment
Interviews and negotiations may also be subject to Schedule 2 ACCA (Cth.) s18(1) which prohibits misleading & deceptive conduct in trade and commerce
O'Neill v MBF (2002)
ACCC, “Misleading job and business opportunity adverts” (2011)
Discrimination in employment
Both State (Equal Opportunity Act 1984 (WA)) and federal legislation (e.g. Race Discrimination Act 1975 (Cth.)) have prohibitions.
Various grounds are prohibited (e.g. sexual harassment, racial, age, disability), but not all unfairness, injustice, or inequality.
Advertising, application forms, and pre-screening procedures & interviews in relation to applicants, and conduct/treatment once a person has been employed, are covered.
Ronalds and Raper, Ch. 4
Direct and indirect discrimination
Australian Iron and Steel v Banovic (1990)
Indirect discrimination involves a policy, program, requirement or condition impacts on a particular subset of employees and they are disadvantaged as a result
Direct discrimination involves disadvantage resulting from the possession of a particular characteristic
Elements of the contract
Offer & acceptance (agreement)
Consideration
Intention to create legal relations
Certainty and completeness
Legality and absence of vitiating factors
Offer
An offer must be clear, e.g. job description (not too vague)
It states the terms of the contract, e.g. wage rate
It does not merely supply information, e.g. not just promotional material
It should be distinguished from an invitation to treat (e.g. a job advertisement), e.g. addressed to applicant individually
It can be revoked at any time prior to acceptance
No need for writing
It lapses after a reasonable period of time if no specific time available set
Acceptance
Acceptance must be certain and unconditional (no counter offers)
Acceptance must be effectively communicated (by email, sms, verbally, but with sufficient detail)
The offeror may prescribe the method of acceptance, e.g. by email
nb. Postal acceptance rule
Consideration
Promises of exchange between both parties form consideration for an agreement
A bargain for the performance of work is involved in making a contract of employment
Payment for work performed during a work experience project will not form an employment contract if only one party makes a promise: Dietrich v Dare (1980)
Consideration need not be fair or equitable BUT statutory requirements impact. An employee must be paid in money: Fair Work Act 2009 (Cth) s323(1)
Certainty and completeness
While courts can endeavour to give meaning to a contract, terms that are too vague will not be enforceable and may be severed to maintain the enforceability of the contract.
Contract terms may be implied where necessary, e.g. reasonable notice where no term has been expressly agreed for terminaton.
Intention
A mutual intention to create a legally enforceable agreement is required.
Volunteers, family members & work experience workers will be presumed NOT to have this intention
Teen Ranch v Brown (1995)
Ermogenous v Greek Orthodox Community (2002)
Legality
A contract for an illegal purpose will be unenforceable.
A term against public policy will be unenforceable.
Terms seeking to restrain the trade of the employee will not be enforceable unless they protect a legitimate interest of the employer and are reasonable.
Contracts employing illegal immigrants for work may be against public policy (legislation prohibits) and unenforceable.
nb. An immigrant may still have statutory rights to be paid etc., pursuant to being employed. Legislation may still recognise an immigrant as an employee for its purposes.
Capacity and youth
Contracts of employment with persons less than 18 years of age will only be enforceable if for the benefit of the minor (a beneficial contract of service)
State legislation prohibits particular forms of child employment and requires a minimum age: e.g. Children and Community Services Act 2004 (WA)
Capacity and associations
The Corporations Act 2001 (Cth.) provides that companies can be employers and have the legal capacity of a natural person
Associations that are not incorporated do not form a separate legal entity. The members of the association can enter into binding contracts with employees.
Genuine consent
Serious mistake can vitiate a contract if it is fundamental to the contract.
Misrepresentation of a relevant fact can vitiate a contract, e.g. employee age/experience
Duress (threat), undue influence (force) or unconscionability (advantage) can vitiate a contract.
Unconscionable conduct by one party taking advantage of the disability of the other will be a vitiating factor.
Terms of the contract
The terms of the contract may be either express or implied
Express terms are those the parties agree to, either verbally or in writing
Courts take a reasonable person’s interpretation of contract terms (not a subjective interpretation)
Courts look for the intention of the parties in the terms in dealing with ambiguity. An ambiguity may be interpreted to benefit the employee if the employer has prepared the contract.
Other terms?
If parties have had discussions that have not been transferred into writing, the content of those discussions is unlikely to be enforceable.
Written terms will generally be treated as all of the terms (the parole evidence rule), unless there is contrary evidence.
Partly written, partly oral contracts are sometimes recognised where it is clear both parties did not see the writing as containing all terms.
If an ‘entire agreement’ clause is included, there will be no implication of additional terms.
Work policies
Company policies incorporated as terms into contracts of employment?
Yes, reciprocal commitments can be created by policies that are promissory: Riverwood v McCormick (2000), Goldman Sacks v Nikolich (2007)
Other factors, like timing of introduction of the policy, consistency in notification of policy operation, may be relevant: Akmeemana v Murray (2009), Romero v Farstad (2014)
Implied terms
Terms can be implied, but only in a very few circumstances
Custom & practice
By law
In fact; the court recognises the intention of the parties was to have a particular term (in a specific agreement)
Customary terms
So common that unwritten
Well known on an industry-wide basis (not limited to a workplace)
Custom forms background of the contract
Term implied only where as a question of fact there is notoriety, certainty, uniformness and it is reasonable: Con-Stan Industries v Norwich Winterthur (1986)
Universal acceptance is not necessary
No contrary express terms, e.g. in an enterprise agreement
Terms implied on the facts
For terms implied ‘in fact’, terms must be necessary (Byrne v Australian Airlines (1995)
Upheld BP Refinery v Hastings (1977) principle
Necessary for the contract
Capable of clear expression
Not contradictory of express term
Just & equitable
So obvious it goes without saying
Terms implied by law
Terms may be implied by:
Legislation
Common law
Remuneration
Reasonable notice
Employer/employee duties
Variation of the contract
Mutual agreement to modify the terms of the contract
Not unilaterally
nb. flexibility in employer’s ability to give lawful & reasonable instructions. This does not vary the contract terms.
A new contract results if there are significant changes to the fundamental terms of agreement.
Quinn v Jack Chia (1992)
Statutes, awards and agreements
Statutes form minimum standards
Primacy of statute law over contract
Award and enterprise agreement terms do not become part of the contract unless there is an expressed intention
Byrne v Australian Airlines (1995)
