{"id":42,"date":"2014-11-17T00:42:16","date_gmt":"2014-11-17T00:42:16","guid":{"rendered":"http:\/\/helencarter.com.au\/?p=42"},"modified":"2016-01-15T01:52:43","modified_gmt":"2016-01-15T01:52:43","slug":"the-importance-of-express-terms","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=42","title":{"rendered":"The importance of express terms in Contracts of Employment and Enterprise Agreements"},"content":{"rendered":"<p>A presentation on 16th October 2014 on both Contracts of Employment and Enterprise agreements.<\/p>\n<p><iframe loading=\"lazy\" src=\"\/\/www.youtube.com\/embed\/5WGJnGFNeek\" width=\"420\" height=\"315\" frameborder=\"0\" allowfullscreen=\"allowfullscreen\"><\/iframe><\/p>\n<p><strong><em>Employment contracts<\/em><\/strong><\/p>\n<p>In Commonwealth Bank of Australia v Barker [2014] HCA 32, the High Court held that the implied term of trust and confidence does not exist.\u00a0 This decision overruled the two federal court decisions below it, as well as the current English authority, <em>Malik v Bank of Credit and Commerce International SA.\u00a0 <\/em>\u00a0The thrust of the High Court\u2019s reasoning\u00a0 as that an implication of a term at law requires the term to be \u2018necessary\u2019 for the performance of the contract.\u00a0 It is not enough that it simply be \u2018reasonable\u2019.<\/p>\n<p>The significance of this decision is that an employment contract is like any other contract, and is to be interpreted according to the words of the document.\u00a0\u00a0 This is significant in the \u00a0that \u00a0traditionally employees framing\u00a0actions in contract against their employers have often relied upon implied terms, choosing to leave\u00a0the express contractual terms to one side.\u00a0 The decision in Barker suggests that this may now be a mistake.<\/p>\n<p>From the employer\u2019s perspective, this relaxed attitude toward express terms frequently leads to some lax practices.\u00a0 Express terms concerning things such as KPIs, incentive schemes, and right to renewal have been construed by courts strictly, and they have shown themselves to be unimpressed by evidence of contrary intentions.\u00a0 Courts are demonstrating no desire to treat contracts of employment differently to other contracts, and relying on the statutory regime behind the contract of employment is a mistake for both employees and employers.<\/p>\n<p>The message is, <strong><em>get your express terms right<\/em><\/strong>.\u00a0 Don\u2019t put anything in your contract that you can\u2019t do, and don\u2019t rely on implied terms to prevail.<\/p>\n<p><strong><em>Enterprise Agreements<\/em><\/strong><\/p>\n<p>EA\u2019s can be a nightmare to some employers.\u00a0\u00a0 But often they can be fantastic in offering flexibility, especially in getting around some of the problems presented by the modern awards, and some cultural benefits to the workforce in bringing people together.<\/p>\n<p>But they can be a significant issue if they are not done correctly.<\/p>\n<p>There have been some developments recently. \u00a0Every employer wants to retain the right to change workplace policies if and when they see fit.\u00a0\u00a0 But there have been some recent decisions in which an employer, in attempting to alter workplace policies, have been hauled before the Fair Work Commission under dispute resolution clause, and have been held up from changing their policies.\u00a0 One case involved a policy relating to mobile phone use policy, where the Dispute resolution clause in the Enterprise Agreement gave the FWC the right to concililate and arbitrate on \u2018terms and conditions\u2019 of employment: not just on the employment terms governed by the Enterprise agreement, Modern Award or the National Employment Standards.\u00a0 This is a huge mistake, because effectively it is an invitation to the Fair Work Commission to become involved in operational matters at work.<\/p>\n<p>Another decision related to a <em>No Further Claims<\/em> clause.\u00a0 Every Enterprise Agreement has a clause like this, as they perform an important function in preventing ongoing claims from either side \u2013 however in one instance the clause was held to prevent the employer from changing their motor vehicle policy \u2013 as it was held to have relationship to the remuneration of the employees.<\/p>\n<p><strong>The lessons<\/strong> :\u00a0 while EA\u2019s can be a great vehicle for flexibility when you are dealing with a good workforce\u00a0 &#8211; it is absolutely essential that the agreements dispute resolution does not allow the FWC to arbitrate, and secondly is based on what is covered by the modern \u00a0award or Enterprise Agreement, and does not go more\u00a0 broadly into terms of employment.\u00a0 If you do that, you are going to end up with the Union or the Fair Work Commission trying to tell you how to run your business.<\/p>\n<p><strong>Once the agreement is made<\/strong> &#8211; <strong>The importance of consultation<\/strong><\/p>\n<p>No one likes having these difficult conversations, especially in the context of an employee not receiving a benefit or entitlement that they expect \u2013 but it is extremely important that consultation takes place.\u00a0 Not only is the consultation process legally required, but a calm, reflective consultation can actually take the heat out of a situation, and will often reduce your likelihood of having an industrial problem by approximately 90%.\u00a0 \u00a0View it not as a difficult conversation to be endured, but rather as an opportunity to connect with them, diffuse the situation and begin the process of resolution.<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>A presentation on 16th October 2014 on both Contracts of Employment and Enterprise agreements. Employment contracts In Commonwealth Bank of Australia v Barker [2014] HCA 32, the High Court held that the implied term of trust and confidence does not exist.\u00a0 This decision overruled the two federal court decisions below it, as well as the [&hellip;]<\/p>\n","protected":false},"author":21,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[8,18,15,16,14,17,19],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/42"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=42"}],"version-history":[{"count":8,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/42\/revisions"}],"predecessor-version":[{"id":364,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/42\/revisions\/364"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=42"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=42"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=42"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}