#13070 - The Employers' Implied Duties - Employment Law

Topic 5: The employer’s implied duties

• Introduction – Wage Setting in Australia

  • 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)

        • 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.

        • 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.

  • 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

  • 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.

        • 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

        • 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

        • 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

        • “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

        • Must be very clear, as the employer cannot take the benefit of the work without having to pay

        • This notice can be made at any time.

  • 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:

        1. 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;

        2. 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

        3. 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;

        4. the lockout of employees from their employment by the employer of the employees.

        • Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited: action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

      • S 19(2) FWA: However, industrial action does not include the following:

        1. action by employees that is authorised or agreed to by the employer of the employees;

        2. action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

        3. action by an employee if:

           1. the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

           2. the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

      • S 19(3) FWA: An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

        • Note: In this section, employee and employer have their ordinary meanings (see section 11).

    • Protected Industrial Action:

      • Payments not to made relating to certain periods of industrial actions s 470 (only for “protected industrial action”)

        • If an employee engages in protected industrial action against an employer, the employer must pay the employee for the duration of the industrial action s 470(1)

        • This does not apply to a partial work ban s 470(2)

          • A partial work ban is industrial action that is not s 470(3)

          1. a failure or refusal by an employee to attend for work; or

          2. a failure or refusal by an employee who attends for work to perform any work at all; or

          3. an overtime ban

        • If the industrial action includes an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless s 470(4)

          • The employer requested the employee work the period of overtime, the employee refused, and the refusal was in contravention of their obligations under a MA, EA or K.

        • If the industrial action includes an overtime ban, and this section applies, the total duration of the industrial action includes the period of overtime to which the ban applies s 470(5)

      • Payments relating to partial work bans s 471 (only for “protected industrial action”)

        • Reduction: If en employee engages in protected industrial action against an employer, and it is a partial work ban, and the employer gives to the employee a written notice stating that their payments will be reduced by a particular proportion, the employee’s payments will be reduced in accordance with subsection (2) for the period (the industrial action period) referred to in (5) s 471(1)

        • The reduction will be either by the proportion in the notice, or that determined by the FWC under s472 s 471(2)

        • Outright refusal to pay: If an employee engages in a partial work ban and the employer gives them notice stating that they will not be entitled to any payments, and the employer refuses to accept the performance of any work, then the employee is not entitled to any payments s 471(4).

        • The “industrial action period” is the later of the start of the first day that the employee implemented the partial work ban, or the start of the next day, after the day on which the notice was given, on which the employee performs work. It ends at the day the ban ceases 471(5).

        • Giving Notice: Employer is taken to given notice if they’ve taken all reasonable steps to ensure the employee and the employee’s bargaining rep has receives the notice and they comply with any requirements prescribed by the regulations 471(7)

          • If they don’t get notice then the payments are not to be reduced 471(8)

      • Orders by the FWC relating to certain partial work bans s 474

        • The FWA may make an order varying the proportion by which an employee’s payments are reduced 472(1) if the employee (or the employee’s bargaining representative) applies to the FWC for an order if they have gotten notice under 471(1)(c) that their payments will be reduced.

        • In considering making such an order the FWC must take into account 472(3)

          • Whether the proportion specific in the notice was reasonable given the nature and extent of the partial work ban; and

          • Fairness between the parties taking in all considerations.

    • Unlawful Industrial Action

      • If the strike is not lawful, then this provision overrides the common law principle. No pay can be given, even if the employer wants to

      • If an employee engages in industrial action that is not protection, the employer must not make a payment to an employee in relation to, if the total duration is...