202 A4 Cheat sheet draft 2 PDF

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1.

Duty to obey [Laws v London Chronicle(Indicator Newspapers) Ltd(1959)] to be lawful [Tran v Calum Textiles Pty Ltd (1997)]

2.

Duty of Care and Competence yes, but no duty if not trained [Printing Industry Employees Union of Australia v Jackson and

3.

Duty to indemnify Employee to reimburse only for loss caused by serious misconduct

4.

Duty to provide faithful services - act in employer's best interests [Orr v Uni of Tasmania (1957)]

5.

Duty not to compete Competing after employment ceases is no breach – McPhersons v Tate (1993)/ No competition by

and reasonable [Australian Telecommunications Commission v Hart (1982)] O’Sullivan Pty Ltd (1957)]

employee whilst still employed – Daily Cleaning v Pavlovic (1992)/ No breach of faithfulness unless harm to first employer – Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 6.

Intellectual property Employer owned intellectual property – British Syphon v Homewood [1956]

7.

Duty to disclose Management employees may have duty to disclose misdeeds of others – WA Ford Truck v Jones (2003)

8.

Duty of confidentiality Employer protected for trade secrets – Ansell Rubber v Allied Rubber (1967)

Common law termination Mutual agreement- Bunge v Mallard (1982), fixed term contract,expressed terms -NSW Cancer Council v Sarfaty (1992)(dont have), Reasonable Notice Quinn v Jack Chia (1992)Nature/ seniority  Age,  Qualifications/ length of service LEVEL 2 - LEGISLATION AFFECTING EMPLOYER/EE RELATIONSHIP Chapter 6 Termination FWA:s117 Reasonable Notice 1- 5 weeks or s117(2) payment in lieu[Sanders v Snell (1998)], s123 no notice for serious breach [Laws v London Chronicle (1959)], constructive dismissal ie. Empye quit due to empyer breach [Sagona v Piccoli Investments(2014)], sale of business= terminated contract [Nokes v Doncaster (1940)] [[[]]3 statutory claims: 1.

Unfair dismissal protects employees from harsh, unjust OR unreasonable dismissal



Have to be (National System Employees)+(Termination by Employer Initiative[Mohazab v Dick Smith (1995)])

 Prerequisite: (Minimum employment period (6 months or 12 months if small business employer)+(Application within 21 days of dismissal)+(below high income threshold)  Checklist: got valid reason related to capacity employee? -Selvachandran v Peteron Plastics (1995) ‘Must be a well-founded reason’.Was employee notified of reason, Was employee given an opportunity to respond to allegation Byrne v Australian Airlines (1995) Unreasonable refusal to have support person present  If termination related to unsatisfactory performance by the employee, was employee warned about that unsatisfactory performance before dismissal Whether size of employer was likely to impact on procedures used by employerDegree absence of HR specialists would impact on procedures used 2.

Unlawful termination prohibits termination based on discriminatory and other grounds eg SDA S14

3.

Adverse action prohibits dismissal involving an abuse of workplace rights

Chapter 7 FWA S51(20) Corporation power to make rules on employment [NSW v Commonwealth(2006)] S51(35) Separation of powers - federal govt has power to resolve disputes between employer/ee [Boilermakers Case(1956)] FWC, FWO, Federal Circuit Court to conciliation, mediation and arbitration and implement NES LEVEL 2A - AWARDS AND EA AND IA 8 Awards based on occupation or trade TO INCLUDE  Who is covered minimun wageflexibility clauseconsultation clauseDispute resolution clause ->genuine attempt at workplace, then snr mgt, then fwa for mediation/arbitration/conciliation 9 EA is legal doc to set conditions based on based on single or group of employer inform employer s173- within 14days employer issue notice of representation rights s181-21daysnotice of votinggive empee copy of doc and 7 days to read vote , if yes >50%, submit to fwc "better off overall test" +mandatory terms -> flexibility, consultation and DR clauses and nominal period 10 IA Unprotected IA common law liability: Tort of interference with contractual relations, conspiracy to injure/ by unlawful means Protected IA  more than 50% voters and >50% yes 3 days notice  IA within 30days of results Secondary boycott prohibited by ACCA 2010 (Cth) [Tillmans Butcheries v Pty Ltd v Australia Meat industry Employees union (1980) 11 Occupation safety and health act 1984 (WA) A. On whom is the duty imposed - any worker B. What is the duty? Take reasonably practical steps to ensure safety and health Duty to ensure safe P&E WorkCover Authority of New South Wales v Baradine Saw Milling Company Pty Ltd and Gunnedah Timber(2002) Negligence calculus  likelihood of the hazard or risk of occurring,  degree of harm what the person knows or ought to have reasonably known the availability of ways to eliminate risk; cost of eliminating or minimising the risk C. To whom is the duty owner? Anyone affected by the work carried out OSHA 1984 S26(1) right to refuse work in unsafe environment Workers' compensation and injury management act 1981 (WA) - no need to prove breach, just that it occur during work =remedy compensation and return to work program (position kept open for 12 mths OR Common law claims for negligence - prove breach of duty, need >15% permanent whole person impairment (WPI) to remedy lump sum payment which closes access to negligence claims....