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Topic 5: The employer's implied duties
? Introduction - Wage Setting in Australia o Basic arrangements for wage setting:
? Pay rates are specific in Modern Awards and Enterprise Agreements
? For those note covered by MA's or EA's, negotiated rate of pay can't be less than the minimum wage rates set by the FWC
? Under the FWA, the FWA is required each year to make a national minimum wage order for award/agreement free employees s 285(2)(c) o An order must set both a general minimum wage, to be expressed as an hourly rate of pay, and a casual loading. It must also include special minimum rates for juniors, trainees and employees with a disability (s 294).
? In 2014, FWC lifted minimum wages by 3% to $16.87 for continuing employee ($640.90 for a gross week).
? Part 2.6 of the FWA: Provides for the FWC to set and vary minimum wages for national system employees. o Certain things the FWC must consider: social inclusion, considering relative living standards
? A failure by an employer to comply with a national minimum wage order constitutes a breach of a civil remedy provision (s 293)
? Workers with a disability
? For those whose productive capacity is affected by a disability.
? The wage is set as a percentage of the normal rate for the relevant type of work.
? Under the current national minimum wage order, the rate for those whose capacity is affected is set by the Supported Wage System. o Types of wages:
? Time based pay: basic wage for each hour worked.
? Piece rates: involve an amount becoming payable as each task or piece of work is completed.
? Annual salary
? Bonuses or incentive schemes:
? Often confer a discretion on an employer as to the assessment of the employee's performance.
? While this may mean the employee has no 'right' as such to be rewarded, the employer will still be under an implied obligation not to exercise that decision capriciously, arbitrarily or (perhaps) irrationality Silverbrook
? Once a decision has been made to pay the discretionary bonus, the employer can't revoke O'Sullivan Partners v Foggo
? Loadings, penalty rates and allowances
? Remuneration packages and salary sacrificing
? Fringe benefits such as the use of a vehicle, subsidised accommodation etc
? Employees can sacrifice their salary and accept another benefit instead. This is because the fringe benefits tax that the employer must pay on that benefit will often be less than the income tax rate.
? Duty to pay for work performed o The Common Law (supplemented by the FWA)
? The 'no work, no pay' principle: Automatic Fire Sprinklers (1946)
? The work-wages bargain is the most fundamental principle of the K or employment. If there is no work, there is no pay. o An employee who refuses to work e.g. on strike, is not entitled to be paid
? In addition, refusal to work when it is lawful and reasonable will be a repudiatory breach which will entitle the employer to dismiss o Wages are for services reasonably demanded under a subsisting relationship of master and servant Dixon J in Automatic Fire Sprinklers
? This can include an employee who is not actually working, but is 'on call'.
? This holds true even if the employer wrongfully prevents an employee from working o The employee may seek damages for breach of contract, but cannot sue for their wages as an accrued debt
? Part-Performance Csomore v Public Service Board
? The no work no pay principle can also apply where an employee refuses to perform some of their required duties, while still being prepared to do other useful work. E.g. partial work ban
? The employer is entitled to demand that the employee perform the full range of duties required by the contract. They are entitled to decline services of an employee who refused to perform a significant or substantial part of the job they are employed to do Csomore o "Significant" or "substantial" can refer to the time element, or can refer to the nature of the work not done
? However, the employer must make it clear that part-performance is not accepted o Must be very clear, as the employer cannot take the benefit of the work without having to pay o This notice can be made at any time. o The FWA (Pay for periods of industrial action)
? What is industrial action?
? s 19(1) FWA - Industrial action means action of any of the following kinds: a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; d) the lockout of employees from their employment by the employer of the employees. o Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited:
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