Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.

1. CONTINUING
PROFESSIONAL
DEVELOPMENT
SEMINAR
Core Skills for Union Lawyers
Thursday 31 October 2013

2. Maurice Blackburn acknowledges the
traditional owners of the land on which we
gather, and we pay our respects to elders
past and present.

3. WELCOME

Part 1 - Bob Reed: Ethics for Union Lawyers

Part 2 - Cate Hartigan: Professional Skills

Morning tea break

Part 3 - Giri Sivaraman: Practice Management

4. OUR HISTORY
 Founded in 1919
 Maurice Blackburn – distinguished lawyer and Labor member of Parliament.
 Dedicated to worker‟s rights.
 Defence of underprivileged groups.
 Determined to make a genuine difference for people who need help
 Fight hard for best possible outcome.

5. OUR SERVICES
 Employment & Industrial Law
 Workers Compensation & Work Injuries
 Road Accident Injuries
 Medical Negligence
 Asbestos & Dust Diseases
 Superannuation & Disability Insurance
 Public Liability
 Faulty Products
 Comcare
 Will Disputes
 Class Actions

6. OUR OFFICES

7. PART 1: ETHICS FOR UNION
LAWYERS
Bob Reed, Barrister

8. ANY QUESTIONS?
Bob Reed
Barrister-at-law
07 3236 5844
rreed@qldbar.asn.au

9. PART 2: PROFESSIONAL
SKILLS
Cate Hartigan, Barrister
Murray Gleeson Chambers

10. UNFAIR DISMISSALS BENCHBOOK
• produced by the Fair Work Commission
• content should be used as a guide only
• do not rely on the Benchbook as authority at a
hearing!

11. Naming Conventions
Page 10 of 181
• Party names
- Applicant (ie the employee who lodged the
application)
- Respondent (the former employer)
• Who are the parties
- Applicant is the individual who was dismissed.
- Respondent – be sure to commence proceeding
against employing entity
- Look at contract of employment, industrial instrument
or ATO documents to identify the proper respondent.

12. What is an Unfair Dismissal?
Page 14 of 181
• objects of unfair dismissal provisions (s 381 Fair
Work Act)
• definition of unfair dismissal (s 385 Fair Work Act)
• “fair go all round”.

13. Making an Application
page 15 of 181
• Application to be lodged within 21 days after the day
the dismissal takes effect
• calculation of 21 days
• multiple actions precluded

14. Discontinuing an Application
Page 16 of 181
• Discontinuing – s 588 Fair Work Act
• Discontinuance filed by mistake or under duress
• Naraydn v MW Engineers Pty Ltd [2003] FWCFB 2538
(unreported Ross J, Sams DP, Ball C, 29 April 2013)
[14]

15. When is a person protected from unfair dismissal?
Page 18 of 181
• An employee of a national system employer who has
been dismissed is eligible, to make an application for
unfair dismissal remedy if:
- they have completed the minimum period of
employment; and
- they earn less than the high income threshold
(currently $129,300 pa); or
- their employment is covered by a modern award
or enterprise agreement.

16. People excluded from National Unfair Dismissal Law
Page 21 of 181
Independent Contractors
Labour Hire Workers
Vocational Placements
Volunteers
Public Sector employees (non-national system employees)

17. What is a Constitutional Corporation?
Page 30 of 181
• S 12 Fair Work Act definition “a corporation to which
paragraph 51(xx) of the Constitution applies:
- Trading or financial corporation

18. What does “dismissed” mean?
Page 34 of 181
• “dismissed” s 386 Fair Work Act
- A person’s employment has been terminated at
the employer’s initiative; or
- A person was forced to resign because of the
conduct or course of conduct engaged in by the
employer.

19. Terminated at the Employer’s Initiative
Page 35 of 181
The action of the employer must cause the
termination (you can use the “but for” test)
Repudiation – a repudiation of the contract does not
bring the contract to an automatic end but gives the
affected party the right to terminate the contract:
Visscher v Giudice(2009) 239 CLR 361 [81].

20. Forced Resignation
- constructive dismissal
- Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200, 206
- heat of the moment resignation
Demotion
- employment continues but involves a significant reduction in duties
and/or remuneration.
- new contract of employment.
- check industrial instrument doesn’t allow for demotion.
Employment limited to the duration of a training arrangement or
contracts for specific time periods/tasks/specified season

21. High income threshold
High income threshold
- S 382 Fair Work Act threshold – currently
$129,500 (adjusted annually on 1 July)
What are earnings?
- S 332 Fair Work Act
- wages
- amounts dealt with on the employee’s behalf or as
the employee directs; and
- Agreed money value of non-monetary benefits

22. • Non-monetary earnings
 superannuation – not included in an employee’s
earnings;
- Any super paid in excess of compulsory contributions
may be included in the employee’s earnings;
 Vehicles
- value of private use of vehicle can be included in
earnings;
- application of formula by the Commission
- fringe benefit tax – depends on whether the employee
directs how the amount is to be dealt with

23. Modern Award Coverage
Principal Purpose Test
- the test is applied to the work performed at the time of the
dismissal – ie the principle purpose for which the
employee was employed
Interpreting coverage clauses
- words of coverage clause to be given ordinary general
meaning
- courts should attempt to give terms a meaning that is
consistent with the intentions of the parties.

24. Application of an Enterprise Agreement
Page 51 of 181
Covers
- an agreement covers if it is expressed to do so
- coverage clause ordinarily specified the parties
Applies
- the agreement is in operation
- the agreement covers the employee; and
- no provision of the FWA has the effect that the agreement does not
apply
Effect of an Enterprise Agreement applying
- s 51 FWA
- confers entitlements and imposes obligations
Individual Agreements
- reference to “enterprise agreement” includes an agreement based
transitional instrument

25. What is the minimum period of employment?
S 383 FWA
- 6 months; or
- 1 year where employer a small company
• Calculation of minimum period
- a month means a calendar month
- commences on employee’s first day at work
• Meaning of “continuous service”
- not defined in FWA
- period of unbroken service with an employer by an
employee
- break in service – resignation, dismissal or transfer of
employment

26. What is a transfer of employment?
Page 61 of 181
• Service with one employer will count as service with a second
employer in different circumstances
• Are the employers associated entities?

27. Periods of service as a casual employee
Page 63 of 181
- does not count towards the minimum employment period
unless:
1. the casual employee was employed on a regular and
systemic basis; and
2. the casual employee had a reasonable expectation of
ongoing employment over a regular and systemic basis.

28. What is a genuine redundancy?
• S 389 FWA
• Genuine redundancy when:
- the employer no longer requires the person’s job to be
performed by anyone because of changes in the
operational requirements of the employer’s enterprise;
and
- the employer has not complied with any obligation
imposed by an applicable modern award or enterprise
agreement to consult about redundancy.

29. The small business fair dismissal code
Page 79 – 82 of 181

30. When does a dismissal take effect?
Page 82 of 181
• a dismissal does not take effect unless and until it is
communicated to the employee who is being dismissed.
• communication of dismissal:
- can be oral
- trend towards dismissal by text being unfair
• late lodgement of application
- exceptional circumstances;
- representative error
- prejudice
- merits

31. Power to dismiss applications
Page 90 of 181
• S 399A and 587 FWA
• general powers of the Commissioner
- S 587(1)
- application
- not made in accordance with the FWA; or
- is frivolous or vexatious; or
- has no reasonable prospects of success
- effect of settlement agreements;
- frivolous of vexatious for having no reasonable prospect of
success
- S 399A

32. What makes a dismissal unfair?
What is harsh, unjust or unreasonable?
What does “must take into account” mean?
• factors are mandatory considerations
Facts acquired after dismissal
• facts an employer unaware of at time of dismissal may be
taken into account

33. Valid reason relating to capacity or conduct
Page 100 of 181
Valid reason
• sound, defensible and well founded
Capacity
• employee’s ability to do the job required
• protected due to temporary absence for illness or injury
Conduct
• did conduct actually occur (BOP)
• serious misconduct – Regulation 1.07
• out of hours conduct
• fighting or assault
• safety and welcome of other employees

34. Notification of reason for dismissal
Page 111 of 181
• S 387(b) FWA
• Notification to be given to employee:
- before the decision to terminate is made
- in explicit terms; and
- in plain and clear terms

35. Opportunity to Respond
Page 114 of 181
• S 387(c) FWA
• opportunity to respond must be given before the decision to
terminate is made
• need not be a formal process

36. Unreasonable Refusal of a support person
Page 117 of 181
• S 387(a) FWA
• no positive obligation to offer opportunity for a support
person
• relevant is there was an unreasonable refusal

37. Warnings – unsatisfactory performance
When are warnings relevant?
• timing of the warning
How should a warning be given?
• must identify aspect that needs to be improved
• must make clear employment is at risk of no improvement

38. Other relevant matters
Page 124 of 181
•
•
•
•
see section 387(h) of the FWA
differential treatment
long unblemished work history
summary dismissal

39. Remedies
Reinstatement
-
what does an order for reinstatement mean?
-
when is reinstatement not appropriate?
-
re-appointed to their previous position
-
appointed to another position no less favourable
-
order to maintain continuity
-
order to restore lost pay

40. •
Compensations
-
criteria for deciding amounts
-
the effects of the order on the viability of the employers enterprise
-
length of service
-
calculation for compensation
-
the Sprigg formula
-
mitigation
-
remuneration

41. Evidence
Page 157 of 181
• S 590 and s 591 FWA
• commission has power to inform itself
• not bound by the rules of evidence

42. Costs
Page 158 of 181
• ss 400A, 401, 402 and 611 FWA
General Rule: a party pays their own costs
• Commission does have power to award costs in certain
circumstances

43. Appeals
Page 170 of 181
• S 400 FWA
- lodged within 21 days
- whether permission to appeal should be granted
- whether there has been an error in the original decision

44. Practice Notes
• fair hearings PN 2/2013
• unfair dismissal proceeding (draft practice note)

45. PART 3: PRACTICE
MANAGEMENT
Do as I say, not as I do: The Role of
Policies in the Workplace
Giri Sivaraman, Principal

46. OVERVIEW
 The role of workplace policies
 The effect of a workplace policy

Vicarious liability of employers
– S793 of the Fair Work Act
– S106 of the Sex Discrimination Act 1984 (Cth)
 What kind of policies should you have?
 What happens if you don‟t have a policy or don‟t implement it
-
Case study: Stutsel
-
Case study: B, C and D
Practice Management
46

47. OVERVIEW (CONT.)
 Elements of a good policy
 When are company policies considered contractually binding?
-
Case study: Riverwood

Contractual vs Aspirational policies

Case study: Nikolich

What if the policy is excluded from the contract
– Case study: Barker

The importance of proper workplace training

Fostering a workplace culture
Practice Management
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48. THE ROLE OF WORKPLACE
POLICIES
There are a number of reasons why an employer should put policies and procedures in
place, including:

ensuring compliance with legislative requirements. Examples:
– Sexual harassment legislation;
– Discrimination legislation; and
– Occupational health and safety legislation

promoting standards for workplace behaviour. Examples:
– regulating internet and email usage at work;
– prohibiting drug and alcohol usage at work;

prescribing employment conditions, entitlements and benefits.
Practice Management
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49. THE EFFECT OF A WORKPLACE
POLICY

In some circumstances, the requirement to comply with a workplace policy
can be considered to constitute a lawful and reasonable direction by an
employer.

An appropriate policy that is properly implemented will limit liability.
Practice Management
49

50. VICARIOUS LIABILITY OF EMPLOYERS:
S793 OF THE FAIR WORK ACT
Section 793 of the Act provides that:

the conduct of an officer, employee or agent of a body corporate (where
within the scope of his/her actual or apparent authority) is taken to be the
conduct of the body corporate.
Practice Management
50

51. WHAT DOES S793 MEAN?
The effect of Section 793 of the Fair Work Act is that employers can, in certain
circumstances, be held liable for the actions of their officers, agents and
employees.
This means that an employer may be held vicarious liable for the wrongful
conduct of its officers, agents and employees where the conduct is performed
with the person‟s actual or apparent authority.
That authority can be defined by reference to policies in the workplace
Practice Management
51

52. VICARIOUS LIABILITY CONT.

S106 SDA. Employer is vicariously liable for actions of employees unless it
can show reasonable steps to prevent harassment/discrimination.

Responsibility of employers for employees breaches will be determined by
reference to policies themselves and efforts made by employers to fully and
properly inform employees of policies and ramifications of terms (Cooper v
Western Area Local Health Network [2012] NSWADT 39.
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth)
52

53. WHAT KIND OF POLICIES SHOULD
YOU HAVE?
Policies are a common tool for ensuring risk minimisation to the employer and
employees.

Discrimination and harassment

Grievances

IT

Social media
Practice Management
53

54. CASE STUDY: NOT HAVING A
POLICY
LINFOX AUSTRALIA PTY LTD V STUTSEL [2012] FWAFB 7097
Stutsel was dismissed for having posted a number of negative comments about
his managers at Linfox on his Facebook page.
He brought an unfair dismissal application before the Fair Work Commission,
where the Commissioner was required to consider whether:

there was a valid reason for the dismissal; and

in all the circumstances, the dismissal was “harsh, unjust or unreasonable”.
Practice Management
54

55. LINFOX V STUTSEL (CONT.)
The Commissioner considered:

the special circumstances surrounding the employee and his termination;

the employee‟s limited understanding as to the privacy of Facebook
communications;

the employee‟s long and satisfactory employment record at Linfox; and

The failure of the employer to have a social media policy
and held that the dismissal was unfair in that it was harsh, unjust or
unreasonable.
Practice Management
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56. CASE STUDY: NOT IMPLEMENTING
A POLICY
B, C AND D V AUSTRALIA POST [2013] FWCFB 6191

Three employees were summarily dismissed for emailing pornography in
breach of the Australia Post IT policy.

The three men brought unfair dismissal applications before the Fair Work
Commission, arguing that their dismissal was either “harsh, unjust or
unreasonable”.
Practice Management
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57. B, C AND D V AUST POST (CONT.)
The Full Bench Commission found that there had been a valid reason for the
dismissals:

the employees breached a reasonable policy that Australia Post considered
to be an important policy; and

the employees knew, in general terms, that they were in breach of the
policy.
Practice Management
57

58. B, C AND D V AUST POST (CONT.)

[37] A prohibition on using an employer‟s IT system to access, send or
receive and store pornography or other unacceptable material is a lawful,
rational and reasonable policy for an employer to implement for a number of
reasons that are not related to any moral offence at pornography. The main
reasons are:

Limiting legal liability to other employees, clients, customers or other third
parties, especially in relation to harassment. A reasonable employer will
take steps to suppress conduct that it knows may cause offence to others.
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth)
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59. B, C AND D V AUST POST (CONT.)

The employer is entitled to ensure that its resources, including its IT
resources, are devoted solely to work purposes (and such reasonable
personal use as it chooses to permit as owner or legal controller of its IT
infrastructure). An employer can be legitimately concerned to prevent the
diversion of its resources and the costs associated with such activity. Of
course, the monetary and time cost involved in sending an email is very
small. However, the wasting of work time by an employer accessing
(„surfing‟) such material may be significant.

Preventing reputational damage to the employer being identified to third
parties or the public as tolerating such material or such misconduct.

[38] It is the first of these reasons that arguably is the most important.
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth)
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60. B, C AND D V AUST POST (CONT.)
However, the Full Bench Commission considered the dismissals to be harsh,
and therefore, to be unfair.
Factors influencing the Commission were:

the absence of policy enforcement or warnings by the employer;

the three appellants‟ substantial periods of satisfactory employment service
of 17 years, 13 years and 11 years respectively;

the three appellants‟ good disciplinary records;

the culture at Australia Post in relation to inappropriate material; and

the harsh economic consequences for the appellants and their families.
Practice Management
60

61. ELEMENTS OF A GOOD POLICY
A good policy should:

establish the objective;

identify who is bound to observe the policy;

establish boundaries for workplace behaviour;

establish consequences for breach; and

be regularly updated in line with legislative change and
workplace/community culture.
Practice Management
61

62. WHEN ARE COMPANY POLICIES
CONSIDERED CONTRACTUALLY
BINDING?
Whilst employment contracts commonly refer to company guidelines, manuals
and codes, it is not always the case that these external documents form a part
of the employment contract terms.
The test from Toll (FGGT) Pty Ltd v Alphapharm Pty Ltd (2004) CLR 165 at
179:
Would the reasonable person, in the position of the other party, believe that the
person making the promise intended to be legally bound by it?
Practice Management
62

63. CASE STUDY
RIVERWOOD INTERNATIONAL V MCCORMICK (2000) 177 ALR 193
In Riverwood, an employee agreed to “abide by all Company Policies and
Practices” in signing their employment contract.
The range of the Company policies and practices that the employee was
required to observe included those that were presently in place as well as
future policies and practices.
The Full Federal Court held that:

the express reference to the company‟s policies and practices in the
employment contract gave the policies and practices a legal force; and

both the employee and the employer could insist upon performance of the
policies and practices in contract law.
Practice Management
63

64. RIVERWOOD (CONT.)
Although the employee was considered to be bound to observe future policies
and practices, it does not mean that employers can vary the policies and
procedures unilaterally.
As Justice North stated at [111]:
Any alteration or addition to the company policies and practices could only
achieve binding contractual effect if there was a separate agreement to such
alterations or additions, either by way of variation of the existing agreement or
by way of entering into a new agreement (emphasis added)
Practice Management
64

65. CONTRACTUAL VS ASPIRATIONAL
POLICIES
Although a company policy or procedure is referred to in the employment
contract, it does not always mean that that these documents are contractually
binding upon the parties.
Whether the company policy or procedure and its terms is contractually binding
will depend on the language it uses.
Practice Management
65

66. ASPIRATIONAL POLICIES
Clauses are likely to be considered as being merely aspirational where the
language used is:

descriptive;

aspirational;

non-promissory;

informational;

encouraging; and

educational
Aspirational clauses may be contrasted with clauses that use more promissory
language.
Practice Management
66

67. CASE STUDY
Nikolich v Goldman Sachs [2006] FCA 784 and [2007] FCAFC 120
Nikolich was a financial advisor who claimed his supervisor‟s bullying and
harassment breached the bullying and harassment policy at work.
He argued the claim under breach of contract, stating that the supervisor‟s
conduct had breached the bullying and harassment policy which was legally
binding on his employer.
Practice Management
67

68. NIKOLICH (CONT.)
The question in Nikolich –
Whether the company policy document entitled “Working With Us”, which was
sent to the employee at the same time as the letter of appointment, formed a
part of the employee‟s employment contract.
The Court held that the company policy on bullying and harassment did form a
part of the employment contract.
Practice Management
68

69. “LEGALLY BINDING”: FACTORS
THE COURT CONSIDERS
In making its decision, the Court in Nikolich referred to a number of factors which
indicated that the company policy was contractually binding and not merely aspirational:

the language used was promissory (for example, by using the terms “comply” and
“abide”);

the language was obligatory (for example, by using the terms “duty” and “ensure”);
and

the obligations were specifically stated rather than generally referred to.
Also relevant to the Court‟s decision that the policy was contractually binding was the fact
that the employee was required to sign off to stipulate that they had read and understood
the policy.
Practice Management
69

70. WHAT IF THE POLICY IS EXCLUDED
FROM THE CONTRACT?

Employers often have a „get out‟ clause.

Do as I say but not as I do.

The contract states that policies do not form terms and conditions of the
contract.

The legal position on such a term has changed.

Also need to consider the cultural effect of such terms.
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth)
70

71. CASE STUDY
Commonwealth Bank of Australia v Barker [2013] FCAFC 83
Barker, a longstanding employee at the Commonwealth Bank, successfully
argued that his employer had breached the implied term of mutual trust and
confidence in his employment contract by failing to comply with its
redeployment procedure in the event of a redundancy.
Important factors considered by the Full Federal Court included:
 Barker‟s 27 years of service;
 the Bank‟s considerable corporate size and its consequential capacity to
redeploy Barker; and
 the terms in the employment contract relating to the Bank‟s redeployment
policy.
Practice Management
71

72. THE IMPORTANCE OF PROPER
TRAINING
There is little utility in having ardent workplace policies where there is no
supportive workplace training to support, foster and maintain a work culture that
respects those policies.
What helps?
By implementing adequate policies and proper training into the workplace, the
risk of vicarious liability the employer is diminished in relation to OHS, sexual
harassment and discrimination claims by employees.
Practice Management
72

73. FOSTERING A WORKPLACE
CULTURE
In order to foster a positive attitude and culture in the workplace:
The employer should commit to be bound by the same policies and
procedures which bind the employees.
An employer who agrees to be bound by its own policies and procedures
shows to its workforce their importance and value at work.
Practice Management
73

74. ANY QUESTIONS?
Giri Sivaraman
Principal – Employment and Industrial Law Section
02 8261 0931
gsivaraman@mauriceblackburn.com.au
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth)
74

75. This information is prepared for the purposes of the seminar conducted on 31 October 2013 only. The content of this paper is not legal
advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the
Personal Injury
content of the foregoing but should take appropriate legal advice.