workplace law assignment
yolac
BSL202L52016.pptxBSL202 Workplace Law
Lecture 5
Implied duties
Duties automatically implied by common law
Some able to be modified by agreement, but limits
Statute may modify duties
Some reciprocal, mutuality of obligation; e.g. the wages-work bargain (Automatic Fire Sprinklers v Watson (1946))
Some not; e.g. the personal service of the employee (no delegation)
A mutual duty of trust & confidence?
A duty to act fairly and reasonably
UK authority for duty: Malik v BCC (1998)
BUT no duty in Australia (CBA v Barker (2014))
A duty to provide work?
No work, no pay (Byrne v AA (1995))
No general duty to provide work (Collier v Sunday Referee (1940))
Exceptional situations when employer has duty:
Employee reputation: Curro v Beyond Productions (1993)
Reduction in earnings: Baumann v Hulton Press (1952)
Special skills?: Ramsay v Blackadder (2005), Mann v CTHC (1981)
A duty to pay when performance is incomplete
If ready & willing to work, a duty to pay
Can stand down, but restricted by FWA 2009
Suspension of pay unlawful unless statute or other instrument (award, collective agreement) allows it
If no work as directed, no pay: Miles v Wakefield (1987) (e.g industrial action)
BUT employer can give a waiver of their right to full performance, then a duty to pay: Welbourn v APC (1984)
A duty of care
Reasonable care to be taken to ensure safety of employees (Wilsons v Clyde Coal (1938))
Non-delegable
Kondis v STA (1984)
Inadvertence of employees
McLean v Tedman (1984)
Competent staff
Adequately trained
Substance testing (alcohol and drugs)
Bullying/harassment
Nationwide News v Naidu (2007)
C.F (2015)
Positive action necessary to meet reasonable care standard
Safe plant and safe systems
Well maintained equipment/facilities
Inspected and tested
Safe method of performing work
Includes all aspects of working, including
Instructions
Equipment
Clothing
Warnings
The standard of care
Reasonable standard: Latimer v AEC (1952)
For the individual employee, not the average employee: Paris v Stepney Borough Council (1951)
Other duties
A duty to idemnify (Lister v Romford Ice (1957))
No duty to provide reference
Duty to provide accommodation where remote work
No duty to provide medical care
Employee duties
Duty to obey
Lawful
Lane v Fasciale (1993)
Tran v Calum Textiles (1997)
Reasonable
R v. Darling Island Stevedoring (1938)
ATC v Hart (1984)
Harrison v P & T Tube Mills (2009)
Coal and Allied Mining v MacPherson (2010)
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Employee privacy
Privacy issues
Employee personal information
Facebook and other personal communication sources
Orders may be lawful & reasonable even if offensive to privacy, where duty of care requires it; e.g. drug and alcohol testing
Changing standards on acceptability, e.g. Shell Refining v CFMEU (2009)
Duty of care and competence
Reasonable care standard
Skill, given training & experience
Performance of work with both care & competence
PIEUA v Jackson & Sullivan (1957)
Care of employer’s property
Duty to indemnify?
Employee to reimburse only for loss caused by serious misconduct
Negligence may also trigger the duty
n.b. Legislation that limits employee liability; e.g. s3 and 5 Employees Liability Act 1991 (NSW)
Duty to provide faithful service
Fidelity v. fiduciary duty?
To act in employer’s best interest, not own
Orr v Uni of Tasmania (1957)
Bribes & undisclosed commissions will be a breach of duty
Boston Deep Sea Fishing v Ansell (1888)
Concut v Worrell (2000)
Not in competition
No competition by employee whilst still employed
Daily Cleaning v Pavlovic (1992)
Competing after employment ceases is no breach
McPhersons v Tate (1993)
More than one employer is no breach, generally
No breach of faithfulness unless harm to first employer
Hivac v Park Royal (1946)
Inventions
Where an employee has invented using employer facilities and or employer time, in the course of employment, duty to hand over exists
Employer owned intellectual property
British Syphon v Homewood (1956)
Electrolux v Hudson (1977)
When not a part of the job/limits on the duty
UWA v Gray (2009)
Intellectual property
Legislation confirms the employer owns the IP of employee created designs & inventions
s13(1)(b) Designs Act 2003 (Cth)
Patents & trademarks included
For authored works, copyright vests in the employer: s35(6) Copyright Act 1968 (Cth)
Duty to disclose?
No duty to disclose own breach of contract
Bell v Lever Bros (1932)
Management may have duty to disclose misdeeds
Swain v West (1936)
Sybron v Rochem (1984)
WA Ford Truck v Jones (2003)
For other employees, duty only where disclosure is related to employment
Employee to reasonably answer re work
Associated Dominion v Andrew (1949)
Duty of confidentiality
No improper use of employer’s confidential information whilst in employ, & after employ for reasonable period
Trade secrets, not employee know how
Information gained in performance of work is not all confidential
Faccenda Chicken v Fowler (1986)
Confidential information
Special information
Not in the public domain
Employer protected
Ansell Rubber v Allied Rubber (1967)
Del Casale v Artedomus (2007)
Blackmagic v Overliese (2011)
Whistleblowing
Legislation protective of employees who disclose where public interest outweighs employer’s interest
e.g. Public Interest Disclosure Act 2003 (WA)
Most legislation is public sector focussed
Some journalist protection (shield law): Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth).
Restraint of trade clauses
No restraint valid where employee restrained in exercise of their trade/skills post employment
Exception where employer has legitimate interest in protecting information
Nordenfeldt v Maxim Nordenfeldt (1891)
Cactus Imaging v Peters (2006)
HRX v Pearson (2012)
Partial validity
Restraint clauses, or parts of them, may be upheld where reasonable
Curro v Beyond Productions (1993)
