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Canberra
Ian Johnson
The Australian Industrial Relations Commission has upheld an employer’s decision to dismiss an employee for drink driving outside working hours in his privately owned car.
The employee, a process worker in a brewery, brought an unfair dismissal claim. He argued his drink driving did not damage the employment relationship or the company’s interests. He also argued the company failed to take into account his honesty in confessing to the incident, his length of service, and his sound employment record.
The Commission held the employer was entitled to rely on its Responsible Drinking Policy, which prohibited out-of-hours drink driving, because a company is entitled to create policies to protect its legitimate business interests. In this case, the employer sought legitimately to protect its reputation as a responsible producer of alcohol.
The employee was trained in the policy and knew out-of-hours drink driving could lead to dismissal. He was also treated fairly in the process leading up to the dismissal. Accordingly, the dismissal was not unfair.
Kolodjashnij v Lion Nathan [2009] AIRC 893
Author
David Glasgow, Solicitor
The New South Wales Supreme Court has ordered an employer to pay over $50,000 to a former employee, finding that the employer could not unilaterally vary a contractual entitlement to receive commissions by introduction of a policy.
A recruitment consultant entered into an employment contract which contained an entitlement to receive commissions. The contract also required him to comply with the company’s policies and guidelines. Months after the contract was signed, the company created a Policy and Procedures Manual, which stated employees would not receive commissions in their “final pay” if their invoices had not been settled prior to their departure. The employee ceased employment and the company relied on its policy to withhold over $50,000 in commissions from his final pay.
The Court held the policy on commissions did not fall within the employee’s contractual obligation to “comply” with the company’s policies. This is because the policy on commissions did not require the employee to “comply” with anything. Rather, introduction of the policy was an attempt to unilaterally vary the employment contract, which the employer was not entitled to do.
Akmeemana v Murray [2009] NSWSC 979
Author
Annamarie Rooding, Senior Associate
A Full Bench of Fair Work Australia has rejected a union’s application for a protected action ballot order, finding the union had only taken “preparatory” steps in its negotiations with the employer and was not genuinely trying to reach an agreement.
The union commenced negotiations with the employer in April 2009. The parties had held three meetings and corresponded through emails. In July 2009, the union applied for a protected action ballot order to authorise the taking of industrial action. To obtain the order, it was necessary to show the union was genuinely trying to reach an agreement.
In considering this issue, the tribunal held it was not appropriate to establish rigid rules to determine the point negotiations need to reach before a secret ballot order can be made. However, an applicant would normally need to have articulated the major items it wanted in the agreement and have provided considered responses to demands made by the other side. In this case, the union had merely engaged in “preparatory” steps to developing an agreement, including limited face-to-face meetings and limited articulation of many claims. Importantly, the wage claim had not been specified. Accordingly, the union was not genuinely trying to reach agreement and the application for a protected action ballot order was rejected.
The Full Bench also noted that while it is appropriate to consider whether an applicant for a secret ballot order has been meeting its good faith bargaining obligations, the concepts of “generally trying to reach agreement” and “good faith bargaining” are not the same.
Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368
Author
Sean Selleck, Special Counsel
The Federal Magistrates Court has held that an employer did not enter into “sham” contractor arrangements, even though two of its contractors were, in fact, employees.
An employer engaged two workers at a flat rate and told them they would need to pay tax, provide an ABN and invoice the employer for work done. Further, they were told they would not receive any annual leave, sick leave or superannuation. However, the two workers had no special qualifications, had fixed hours of employment and used equipment provided by the employer, which were all indicators of employment.
The Court held that despite the parties believing they were entering into independent contractor arrangements, the contracts were contracts of employment. However, at the time the offers of work were made, the employer did not know, and was not reckless as to whether they were contracts of employment. Accordingly, these were not sham arrangements under the legislation.
CFMEU v Nubrick Pty Ltd [2009] FMCA 981
Author
Andrew Gray, Partner