9-9.20 Reading Part a 10 Marks, 12 Minutes (1 Page, Words 288)

9-9.20 Reading Part A 10 marks, 12 minutes (1 page, words 288)

9.20-10.08 Part A Part B 30 marks, 36 minutes (3 pages, words 864)

10.08-11.20 Part B

LWA014–Employment Law

EXAM NOTES

1.Problem solving

2.contract Termination flow charts

3.IRAC Method

4.Exam summaries

5.Employee v/s Independent Contractor

oControl test

oMulti-factor test

6.Contract formation

7.Representations

oMisrepresentations at common law

oTrade Practices Act

8.Terms generally

oAwards

oFixed term contracts

oRestraint of trade

9.Terms implied by the operation of law

oExpress and implied terms

10.Interdependent (mutual) duties

oThe doctrine of mutuality – the wages/work bargain

i.Service required to earn wages

ii.No work as directed, no pay

iii.Failure to perform work due to acts of the employer

iv.Failure to perform work due to acts of the employee

oMutual trust and confidence

v.Duty of cooperation

oEmployer’s duties

vi.Duty to pay wages

vii.(no) duty to provide work

viii.Duty to indemnify

ix.Duty to assist a return to work

x.Provision of medical assistance

xi.Duty to provide longer service leave

xii.Duty to make payments into superannuation

xiii.duty to safeguard employees’ health and safety

xiv.No right to privacy

xv.No duty to provide references or reasons

xvi.Duty of care (safe system of work)

xvii.Non-delegable duty

xviii.Vicarious liability

xix.Workers’ compensation

xx.Employer's general statutory duty of care

xxi.Mutual Trust and Confidence

xxii.Duty to indemnify

xxiii.Duty to take care if providing a reference

xxiv.Proper and reasonable notice

oEmployee’s duties

xxv.No duty to disclose past faults

xxvi.Duty to obey employer’s lawful and reasonable commands

xxvii.Duty to be ready and willing to work

xxviii.Duty to work in a skilful and competent manner

xxix.Duty to look after the employer’s property

xxx.Duty to indemnify the employer

xxxi.Duty to change place of work

xxxii.Duty to change in work method

xxxiii.Duty to do other work

xxxiv.Duty of Fidelity and good faith

oStatutory duties – Workplace Health and Safety Act (s 59)

11.Industrial action issues

oStrike

oWork ban

oWork to rule

12.Notice of termination

13.Contract variation

14.Breach

15.Termination for breach or repudiation of obligation

16.Contract termination generally

17.Summary dismissal

18.Constructive dismissal

19.Wrongful dismissal

xxxv.Remedies

20.Unfair dismissal - Protection

21.Unlawful termination - Protection

oInherent requirements

22.Workplace rights protections

23.Frustration

24.Termination by operation of law

25.Common law damages

26.Compensation – Fair Work Act

27.Damages – Trade Practices Act

28.Other remeies

oExemplary damages for breach of fiduciary duty

oAccount of profits

oConstructive trust

29.Employee benefits

30.Fair Work Australia

oConstitutional power

oJudicial review under s 75(v) of the Constitution

31.Workplace Relations Act

32.Employment law policy and effectiveness

33.The contract of employment, employment relationship and fiduciary duties

oScope of the fiduciary relationship

oCorporations Act prohibitions

34.Breach of confidence

35.History of employment law

BCth legislative history

CLegislation and statutory instruments

DConstitution

ECentral features of the Federal system

36.Contract of employment

FEmployee & independent contractor distinction

(ii)Contract of service – the employee/employer relationship

(iii)Contract for services – the independent contractor/principal relationship

GApplicable tests

HExpress declaration of intent

IIncorporation

JStatutory deeming provisions

KOther work relationships

(iv)No Legal Relationship

(v)Company Directors

(vi)Office Holders

(vii)Bailment, Partnership

(viii)Tenancy, Religious Office

(ix)Principal and Agent

(x)Principal and Contractor

(xi)“Deemed” employees

LRelationship Scenarios

37.Vicarious employment

MTransfer of employment

NApplying the common law tests of employment

ODismissal or labour hire workers

PLabour hire – liability to injured workers [pp 97]

QNon-delegable duty of care

(xii)Rail Corporation of NSW v Fluor Australia Pty Ltd, [2008] NSWSC 1348

(xiii)Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

RHost business liability [pp 98]

SLiability for agency worker’s conduct [pp 101]

TMultiple employers – joint employment [pp 107]

38.Formation of the contract of employment

UContractual Formation

(xiv)Agreement

(xv)Intention to create a legal relationship

(xvi)Consideration

(xvii)Capacity

(xviii)Legality

VSources of terms in the contract of employment

(xix)Certainty of Terms

(xx)Sources of Contractual Terms

(xxi)Terms Implied by Fact - “Business Efficacy” Terms

(xxii)Rules of Law intended to govern relationship

(xxiii)Terms Implied by Common Law -Custom and Practice

(xxiv)Legislative Rights

(xxv)Awards and Agreements

(xxvi)The Contract and Legislation

39.Contract variation

WCCH Summary

(xxvii)[¶5-180] Variations in conditions

(xxviii)Examples

40.Terms implied by operation of law – the duties of employers and employees

XInterdependent (mutual) duties

41.Contracting out – express v implied terms

42.Fiduciary dities

43.Employees’ duties

YDuty to be ready and willing to work

ZDuty to obey employer’s lawful and reasonable commands

AADuty to work in a skilful and competent manner

BBDuty to indemnify the employer

CCDuty of Fidelity or good faith

(xxix)Running down the reputation of the employer

(xxx)Duty of Confidentiality – wrongful use or disclosure of information

(xxxi)Public interest disclosure – “Whistleblowing”

(xxxii)Secret profits, bribes, secret commissions

(xxxiii)Inventions

(xxxiv)Theft

(xxxv)Duty to report on other employees and answer questions

(xxxvi)“Spare Time” Work

(xxxvii)Duty to account for property

44.The duties of employers

(xxxviii)Duty to pay wages

(xxxix)Duty to assist a return to work

(xl)Duty to provide longer service leave

(xli)Duty to make payments into superannuation

(xlii)duty to safeguard employees’ health and safety

(xliii)Duty of care (safe system of work) - implied

(xliv)Workers’ compensation

(xlv)Workplace Health & Safety Act, s.55

(xlvi)(no) duty to provide work

(xlvii)Mutual Trust and Confidence

(xlviii)Duty to indemnify

(xlix)Duty to take care if providing a reference

(l)Proper and reasonable notice

45.Termination of the employment relationship

DDThe end of the contract

(li)Termination by agreement

46.Consensual Termination

(lii)Reasonable notice

(liii)What is “Reasonable Notice”?

(liv)Relevant factors

(lv)Notice periods under awards or industrial agreements

(lvi)Form of Notice

(lvii)Payments in lieu of notice

(lviii)Exceptions to requirement for reasonable notice

(lix)Invalid notice

(lx)Effect of notice

(lxi)Non-acceptance of notice

(lxii)Payment in lieu of notice

47.Termination by operation of law

(lxiii)Frustration

(lxiv)Death

(lxv)Bankruptcy

(lxvi)Corporate liquidation, merger

(lxvii)Unauthorised alteration of instrument

48.Redundancy

EECCH Australia summary

(lxviii)Redundancy procedures and entitlements

(lxix)No work available

(lxx)Geographic relocation

(lxxi)[¶57-110] Award provisions

(lxxii)[¶57-115] Federal award standards

(lxxiii)New standards in 2004

(lxxiv)[¶57-120] State award standards

(lxxv)[¶57-125] Agreements

(lxxvi)[¶57-130] Federal legislation

(lxxvii)Requirement to notify Centrelink

(lxxviii)Applications to Australian Industrial Relations Commission (AIRC)

(lxxix)[¶57-135] State legislation

(lxxx)[¶57-140] Individual contracts

(lxxxi)A general implied obligation to provide severance pay?

49.Termination as a consequence of breach of contract

(lxxxii)Distinguishing fundamental from non fundamental breach

(lxxxiii)Automatic vs Elective theory of termination

50.Wrongful dismissal

51.Unfair dismissal

52.Summary dismissal - Termination as a consequence of breach by the employee

FFWhat constitutes misconduct?

GGRepudiation

(lxxxiv)Effect of repudiation

53.Constructive dismissal

54.Discipline

HHDemotion

(lxxxv)Demotion can be a breach of contract

IIFining

(lxxxvi)What monetary measures are justifiable discipline?

(lxxxvii)Can an employer sue an employee?

JJSuspension

(lxxxviii)What are the implications of suspension of employment?

(lxxxix)[¶51-470] Notice required

KKTransfer

LLCases

55.Discrimination in employment

MMSources of anti-dscrimination law

(xc)Racial Discrimination Act 1975 (Cth)

(xci)Sex Discrimination Act 1984 (Cth)

(xcii)Age Discrimination Act 2004 (Cth)

(xciii)Disability Discrimination Act 1992 (Cth)

(xciv)Workplace Relations Act 1996 (Cth)

(xcv)Human Rights Commission Act 1981 (Cth)

(xcvi)Disability Services Act 1986 (Cth)

(xcvii)Equal Opportunity for Women in the Workplace Act 1999 (Cth)

(xcviii)Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth)

(xcix)Human Rights and Equal Opportunity Commission Act 1986 (Cth)

(c)Anti-discrimination Act 1992 (NT)

56.Other aspects of employment law in the NT

57.Remedies

(ci)Misleading and deceptive conduct – TPA s 52

58.Review of the Fair Work Act – Workplace Relations Act

59.LEGISLATION

60.CASES

61.LATIN TERMS - Glossary

62.Summaries completed

63.Exam research notes

1.Problem solving

1. Is there a contract of employment?

Intention: performance trials (Dietrich v Dare) andworking trials

Note: distinction between the ‘contract of employment’ and the ‘employment relationship: Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Who are the parties? (Privity of contract - Coulls v Bagot’s Executor and Trustee Co Ltd)

How was it communicated and when was it received? (orally, writing, email)
Was there conduct to support the formation of a contract?
If consideration at issue

Is there a total failure of consideration?
Is there an estoppel?
Is there part performance?

Casual employees

Has the work been performed under an unbroken contract?

Restricted employment

Illegal workers: Migration Act 1958 (Cth) s 235
Employment of children: WRA s 16(3)(e); State legislation

Licensing requirements

Certain industries require registration of employees (eg, lawyers, stock brokers)

2. Are they an employee or independent contractor? Hollis v Vabu;Stevens v Brodribb Sawmilling

(a) Is there some other relationship such as bailment, office holder, director?

Employee: Vicarious liability, statutory rights and benefits (WRA or FWA), worker’s compensation, superannuation, long service leave, sick leave, annual leave, employee benefits, general implied terms, unfair dismissal, harsh or wrongful termination, repudiation
Has there been continuous service?

3. Incorporation of terms (express and implied)

(a) What are the legislated minimum conditions: WRA; FWA

(b) What are the Award conditions

Puff, mere representation, contractual term

Collateral contract (JJ Savage & Sons Pty Ltd v Blakney; Hoyts Pty Ltd v Spencer)

Express terms

Signature; Reasonable notice (actual knowledge, constructive knowledge, reasonable notice); Acceptance of a

ticket; Course of dealing; Reference

Implied terms

Implied by fact (Contract complete on its face - BP Refinery (Westernport) v Hastingsor Contract notcomplete on its face - Byrne v Australian Airlines Ltd; Hawkins v Clayton (informal contracts))
Implied by general law (professional services, supply of goods, supply of services, supply or work materials, tenancy agreements, bailment)
Implied by custom or usage (Con-Stan Industries of Aust v Norwich Winterhur Insurance (Australia) Ltd)
Implied by statute (Trade Practices Act, CAFTA, Sale of Goods Act)

Awards

An employee’s individual contractual intention to incorporate an award term is paramount: Byrne v Australian Airlines Ltd

4. What do the contractual terms mean?

Construction issues

Meaning of the words - (i) natural, common or ordinary meaning, (ii) intended meaning

Parol evidence rule (LG Thorne & co Pty Ltd v Thomas Borthwick & Sons; State Rail Authority of NSW v Heath Outdoor Pty Ltd; Gordon v Macgregor)
Exceptions: subject matter, resolving ambiguity, foreign or technical words, identify parties and their relationship, evidence of implied terms, consideration, rectification, collateral contract, context of noncontractual remedies.
Factual matrix (Codelfa Construction P/L v State Rail Authority of NSW; Pacific Carriers Ltd v BNP Paribas)
Exclusion clause – exclude, restrict or qualify rights (Darlington Futures v Delco). Construe by rules of thumb: Contra proferentem rule, seriousness of the breach, Four corners rule, Main purpose of the contract, Deviation rule, Specific rules concerning exclusion of negligence clauses, Reasonableness, Pre-contractual statements
Trade Practices Act ss 68, 68A; CAFTA s 68
TPA ss 52, 53; CAFTA ss 42,43; Uniform credit code, unconscionable conduct

Legal effect or significance of the words (Life Assurance Co of Australia Ltd v Phillips)

Classification of terms (Hongkong Fir case)

Warranty (damages only), intermediate term (damages and/or termination), condition (termination)

5. Discharge of contract

Performance (Exceptions: de minimis rule, severable contracts, substantial performance, prevention offurther performance, acceptance of defective performance)
Agreement (unilateral, bilateral)
termination or variation?
Redundancy – no unfair dismissal rights
Summary dismissal: Sanders v Snell (1998) 196 CLR 329; Bruce v AWB Ltd (2000) 100 IR 129
Frustration (Davis Contractors v Fareham Urban District Council; Codelfa case)
Operation of law (death, bankruptcy, corporate liquidation, merger, unauthorised alteration of instrument)
Breach of a condition or a serious breach of an intermediate term (failure to perform [non-performance; defective performance; late performance], anticipatory breach)
Misconduct
Repudiation: KoompahtooLocalAboriginalLand Council v Sanpine Pty Ltd; Burazin v Blacktown City Guardian P/L
Wrongful, unfair or summary dismissal?
Does the P elect to terminate or affirm and/or wish to seek damages?

Notice requirements

Failure to give adequate notice is a wrongful dismissal

Minimum statutory notice period: Rankin v Marine Power International (2001) 107 IR 117

6. Rights (in rem or in personam) and obligations (including equitable) of the parties

jura in rem – rights enforceable against the world at large

jura in personam – rights enforceable against certain persons only

it is a right to have an interest in land created and that is said to be a right enforceable by personal action: Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472
An application for property settlement under the Act is an action in personam, not in rem: Wallmann, In Marriage of (1981) 60 FLR 453
The remedy for breach of the contract between the mortgagee and the registered proprietor gave rise to an action in personam but not to the creation of an interest in land.: Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (2000) 9 Tas R 444

General rights

Right of assignment (LPA s 182)

Contract law

Rights provided under the contract (ie. rights acquired as part of the other parties obligations)

eg. accept or reject insubstantial performance

Right of termination

Rights after a vitiating factor [misrepresentation, mistake, non est factum, duress, undue influence, unconscionable conduct]

rescission

Rights after a ‘breach’ or ‘repudiation of obligation’

Termination for breach or repudiation of obligation
Affirmation
Wait and see – but this may imply a waiver or affirmation

Obligations generally

Contractual term obligations – express terms (eg. payment of money, notice requirements)

Contractual terms – implied terms

Restraint of trade

Good faith?

Equitable obligations

Fiduciary duties

Confidentiality

7. Causes of action

Standing issues

Statute of limitations issues

Statute

Statutory illegality in contracts

Contracts contrary to public policy
Unfair dismissal - Workplace Relations Act 1996 (Cth) (but will be prevented by s 674 where another claim relies on the same set of facts)
Unlawful termination on prohibited grounds - Workplace Relations Act 1996 (Cth)
Constructive dismissal
Summary dismissal
Unfair contract
Discrimination

Common law

Breach of contract
Repudiation of contract
Wrongful termination
Deceit: Derry v Peek (1889) 14 App Cas 337; Commercial Banking Co of Sydney Ltd v R H Brown (1972) 126 CLR 337
Negligent misstatement: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Jamieson v Vox Retail Group [2002] QCA 220; Cornwell v Cth [2005] ACTSC 14
Defamation
Injurious falsehood
Trespass to goods

Equity

Equitable estoppel
Breach of fiduciary duty
Breach of confidentiality

In rem actions

Trespass to land
Trespass to goods
Detinue
Conversion

Arbitration process

Workplace Relations Act

Fair Work Act

Other possible approaches

Statutory demand (Corps Act s 459E); Wind up application (Corps Act s 459Q)

8. Pleadings

Federal Court of Australia Act 1976 (Cth) s 31A

s 31A is no bar to an arguable case: Bond v Barry [2007] FCA 1484

9. Remedies

Common law remedy available as of right

Equitable remedy subject to discetion

Common Law – employment

Wages

Fixed term contract ended: Reynolds v Southcorp Wines (2002) 122 FCR 301

Common law remedies – contract

Damages for breach of contract or repudiation: The Winkfield

Recovery of sums fixed by the contract

Other actions for damages

Action for money due (recovery of debts)

Quantum meruit (a claim to recover a sum as a quantum meruit for partial performance)

Common law - negligence

Damages in contract and/or tort, but defences of duty to mitigate (Burns v MAN Automotive (Aust) Pty Ltd) and contributory negligence (Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 16)

Equitable remedies

Injunction

Specific Performance

Constructive Trust

Tracing

Equitable Compensation

Equitable Damages

Equitable charge or lien

Account of profits

Recission

Declaration

Rectification

Specific Restitution

Delivery up

Mareva order

Anton Piller order

Receivership

Statutory remedies – general

Trade Practices Act s 52, 53B

CAFTA – Misleading and deceptive conduct

Statutory remedies – employment

Unfair dismissal (re-instatement, re-employment, payment in lieu: Sanders v Snell)

Unlawful termination

Statutory Duress – WR Act: Schanka v Employment National (2000) 96 IR 449

Freedom of Association

State Industrial Tribunals

10. Conclusion

Additional, alternate or practical solution (ie accord and satisfaction, new or varied contract)

2.contract Termination flow charts

3.IRAC Method

Preliminary matters

Identify all of the parties involved with your client (the person seeking advice). This includes individuals, employers (such as a company or trading name mentioned), even third parties.
Identify the relationship of each of the parties to your client(ie. contractual relations, fiduciary duties, bona fide purchaser for value without notice, accessory to a breach, etc)
What is the nature of the property (if any) in dispute and the attaching proprietary and personal rights?

ISSUES

What facts and circumstances brought these parties to court?(ie. Identify all the legal issues which created the controversy and the law related to each party’s relationship)

Consider civil causes of action and criminal sanctions created by statute, common law and equitable law.
Break up the legal test(s) into elements to be considered separately from the relevant leading case(s)

RULES

What is the relevant governing law for each issue based on the factual matrix?(ie. Identify all the material and inferred facts (eg time spans from dates provided))

For each issue, what principle of law does each case stand for?
Are the principles consistent?
Which cases are authoritative and persuasive?
Could a principle be extended to the current fact situation?

ANALYSIS (the most important aspect of the IRAC method)