The High Court of Australia’s decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personal Contracting) and ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors [2022] HCA 2 (ZG Operations) seemed to suggest that the question of whether a worker is an employee or an independent contractor is a straightforward matter of looking at the terms of the contract.
However, the recent case of Yang v China Australia Travel Group Pty Ltd [2023] FedCFamC2G 1023 (China Australia Law) provides an interesting example of circumstances where there remains nuance in these types of matters.
The facts of the case in China Australia Travel seem to be all too common. The case involved China Australia Travel Group Pty Ltd (CAT) and Mr Yang, an individual with limited English who migrated to Australia in 2005.
In brief summary:
1. Mr Yang worked for CAT from June 2015 to September 2017 on a full-time basis. There was no written contract for the arrangement, but there were two conversations providing terms of the arrangement before Mr Yang commenced work for CAT in 2015.
2. During the period Mr Yang worked for CAT, he drove a bus provided to him by CAT for tourists based on itineraries provided by CAT and provided tour guide services for these tourists. Mr Yang performed the work under the control and direction of CAT and used the bus provided to him by CAT.
3. Mr Yang only received two payments from CAT during the period of the arrangement. One payment in or about July 2016 for $7,900.39 and one on 17 July 2017 for $5,000.
CAT argued that Mr Yang was an independent contractor of CAT, while Mr Yang argued he was an employee.
In China Australia Travel, Judge Obradovic briefly set out principals from Personal Contracting about whether a worker is an employee or contractor. In short:
1. It is necessary to look at the totality of the parties’ relationship and conduct to determine the nature and terms of the contract the parties entered into, but only in so far as it concerns the rights and duties established by the parties’ contract and not simply an aspect of how the parties’ relationship had come to play out in practice.
2. The court must analyse the totality of the parties’ relationship by reference to indicia provided for in case law, such as those including but not limited to:
a. the degree of control which the alleged employer can exercise over the alleged employee;
b. the mode of remuneration;
c. the provision and maintenance of equipment;
d. the obligation to work and the provision for holidays;
e. the deduction of income tax; and
f. the delegation of work by the alleged employee.
The Court found in China Australia Travel that Mr Yang was an employee of the company.
In determining that Mr Yang was a casual employee of CAT, the Court referred to the following points, among others:
1. CAT maintained a large degree of control over Mr Yang during the period he worked for them.
2. CAT provided vehicles for Mr Yang to drive while working for CAT. CAT also arranged for the repairs to the buses and directed Mr Yang to which repair shop to go to.
3. Mr Yang did not have the vehicle or shopfront to operate his own travel company.
4. Mr Yang generally did not work for anyone else between June 2015 and October 2017, except at the direction of CAT who occasionally instructed him to do work for other companies that CAT had business relationships.
5. CAT set the rates of remuneration and decided the shifts Mr Yang was to work.
6. CAT sent Mr Yang the itinerary for each shift, which he was required to follow.
7. Mr Yang was required to request time off when he could not attend a shift.
8. CAT provided directions to Mr Yang, which Mr Yang was required to obey.
9. The mere fact that Mr Yang asked to be paid into his wife’s bank account and had an ABN is not an indication that he was an independent contractor.
Ultimately, the Court found that CAT and the second and third respondents in the case were liable to pay Mr Yang $84,460.71, plus superannuation contributions.
China Australia Travel sets out an unusual case where an individual was working for a long period of time with very little payment and neither the worker nor the business that was engaging them reviewed the arrangement.
In any event, the case of China Australia Travel demonstrates the significant consequences of presuming a worker is an independent contractor.
If you have any questions about employment contracts, please feel free to contact one of our staff. Please also see our previous posts on independent contractors at the link here.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
The Fair Work Commission (FWC) has a general power power to dismiss an unfair dismissal application on its own motion or upon an application under section 587 of the Fair Work Act 2009 (Cth) (Act). However, the FWC can also dismiss an application for an unfair dismissal remedy following an application by an employer under section 399A of the Act.
Section 399A of the Act provides:
“(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Division 4 of Part 3-2 of the Act deals with remedies for unfair dismissal applications.
A common situation where an application under section 399A of the Act is made occurs where an applicant fails to attend a conciliation conference conducted by the FWC and attempts to communicate with the applicant by the FWC are unsuccessful. By way of example, in the case of Rachael Morris v RAW Sunshine Coast Pty Ltd [2023] FWC 2069:
1. Ms Morris made an application on 2 June 2023 for a remedy under section 394 of the Act, alleging she had been unfairly dismissed by Raw Sunshine Coast Pty Ltd (Raw).
2. Ms Morris did not attend a conciliation conference with a Commission staff member listed on 6 July 2023, nor did she attend a Mention/Direction listed before a FWC Commissioner on 14 August 2023.
3. Following the Mention/Direction listed on 14 August 2023, RAW made an application under section 399A of the Act.
In the case of Lockyear v Graeme Cox [2021] FWCFB 875 (Lockyear), the FWC Full Bench provided relevant principles for the FWC to consider where there has been an application under section 399A of the Act.
The principles set out by the FWC Full Benchfor the process that should be observed before the FWC considers dismissing an application under section 399A(1) of the Act are as follows:
“1. An application under s.399A must be made by a party in accordance with the [Fair Work Commission Rules 2013] by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the [Fair Work Commission Rules 2013] pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
Section 399A of the Act provides a remedy for employers where an applicant has failed to attend a conference or comply with orders or a settlement agreement. This is a provision of the Act that applicant’s should be aware of and consider during the unfair dismissal process and that can provide employers with alleviation in certain situations.
See more articles on unfair dismissal at our page here.
Written by Angus Macpherson.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
The decision of the Fair Work Commission (FWC) Full Bench of Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101 (Lipa Pharmaceuticals Decision) highlights an important change in the way the FWC deals with general protections applications involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (Act).
The Lipa Pharmaceuticals Decision has already impacted how general protections dismissal applications are dealt with in circumstances where the applicant’s dismissal is disputed by the respondent(s) to the application.
The circumstances of Dr Jarouche’s employment ending with Lipa Pharmaceuticals Ltd (Lipa) and how Dr Jarouche’s general protections dismissal application was dealt with by the FWC were important in the Lipa Pharmaceuticals Decision.
By way of a brief summary:
1. On around 24 May 2021, Dr Jarouche was employed as a Chief of Quality of Lipa.
2. During 2022, Lipa’s Chief Executive Officer, Mr Tanna, developed concerns about parts of Dr Jarouche’s performance, which were discussed with Dr Jarouche.
3. In September 2022, Dr Jarouche confirmed to Mr Tanna she would require a period of leave for planned surgery.
4. On 29 September 2022, Mr Tanna and Dr Jarouche had a meeting within which, among other things, Dr Jarouche agreed to resign from her employment with Lipa. It was subsequently agreed Dr Jarouche’s employment would end effective 5 October 2022.
5. On 21 October 2022, Dr Jarouche filed a general protections dismissal application with the FWC.
6. Despite raising a jurisdictional objection about whether Dr Jarouche was dismissed in its Form F8A, Lipa participated in a conciliation conference conducted by the FWC on 13 December 2022.
7. The conciliation conference did not result in a settlement of the matter.
8. Lipa pressed for its jurisdictional objection to be determined by the FWC prior to the issue of any certificate by the FWC under section 368(3)(a) of the Act.
The Full Bench summarised that Lipa’s appeal in the Lipa Pharmaceuticals Decision raised four appeal grounds that all involved the contention the Deputy President in Mariam Jarouche v Lipa Pharmaceuticals Ltd [2023] FWC 493 made an error in finding Dr Jarouche was “dismissed” within the meaning of the s 386(1)(b) of the FW Act.
While the Full Bench determined that Dr Jarouche’s resignation was “forced” within the meaning of s 386(1)(b) of the Act and Dr Jarouche had been “dismissed” within the meaning of section 386(1) of the Act, there were significant comments made by the Full Bench on general protections applications more broadly and how the FWC deals with these applications.
The Full Bench provided:
1. A valid General Protections Dismissal Application under section 365 of the Act requires that the dismissal has actually occurred as a matter of jurisdictional fact and it is not sufficient that the applicant has simply alleged that they were dismissed
2. If there is a contest as to whether the alleged dismissal subject of the application has occurred, this is an question that must be resolved before the powers conferred by section 368 of the Act can be exercised at all.
3. The conciliation conference conducted by the FWC for Dr Jarouche’s application should not have occurred as Lipa raised a jurisdictional objection as to whether Dr Jarouche was dismissed. This should have been determined prior to the FWC dealing with the dispute, including by conducting the conciliation conference.
The FWC previously conducted a conciliation conference for general protections dismissal applications, even in circumstances where there was a jurisdictional objection raised about dismissal by the respondents.
From 1 June 2023:
1. The FWC changed its case management practices for general protections dismissal applications.
2. Where the respondent to an application denies that it dismissed the applicant and objects to the application on this basis, the FWC is required to determine whether or not there was a dismissal.
3. This would likely involve a hearing and determination by the FWC on whether there was a dismissal before any conciliation/conference takes place.
The new case management practices of the FWC ultimately add another consideration for potential applicants when they are determining if they want to make a general protections application.
See more articles on general protections at our page here.
Written by Angus Macpherson.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
Amendments to the Fair Work Act 2009 (Cth) (Act) will come into effect from 6 December 2023 that include provisions on fixed term employments contracts. These include contracts that are expressed to end on a specific date or after a certain period of time.
The Act will include penalties for employers that enter a fixed term employment contract that meets one of the conditions set out in the new section 333E.
From 6 December 2023, section 333E of the Act will prohibit an employer from entering into a contract of employment with an employee (other than a casual employee) that includes a term that the contract will terminate at the end of an identifiable period, if:
1. the identifiable period is greater than two years;
2. the sum of the identifiable period and any other period the contract may be extended or renewed is greater than two years;
3. the contract provides an option or right to extend or renew the contract more than once; or
4. the contract comes into effect after another contract of employment between the employer and the employee, where:
a. the previous contract included a term that provided the contract would terminate at the end of an identifiable period;
b. the previous contract was for the employee to perform the same, or similar, work for the employer as required under the current contract;
c. there is substantial continuity of the employment relationship from the previous contract terminating and the current contract commencing; and
d. any of the following apply: the term of the previous contract and the term of the current contract is greater than two years; the current contract includes an option for renewal or extension; the previous contract included an option for extension that was exercised; or, the previous contract came into effect after an initial contract that satisfies 4.a. and 4.b. above and there was substantial continuity of the employment relationship during the period between the initial contract terminating and previous contract commencing.
In addition to potential penalties, the Act will include an interesting provision where an employer and employee enter a fixed term contract that is not permitted.
The new section 333G of the Act includes that, if a person enters into a contract of employment with an employee in contravention of section 333E(1), the term of the contract that provides it will terminate at the end of the identifiable period will have no effect, but the contravention is taken not to affect the validity of any other term of the contract. This means that the contract would continue to apply, except that it will not end at the expiry date.
There will be some limited exceptions to the prohibition on entering fixed term contracts in section 333E of the Act. Examples of some of these exceptions include:
1. where the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills;
2. the employee is engaged under the contract in relation to a training arrangement, for example, an apprenticeship;
3. if the employee’s earnings under the contract the year it is entered into are above the high-income threshold for that year; and
4. the contract relates to a governance position that has a time limit under the governing rules of a corporation.
The Fair Work Ombudsman will also prepare a Fixed Term Contract Information Statement that, from 6 December 2023, must be given to an employee before, or as soon as practicable after, they enter into a contract that will terminate at the end of an identifiable period.
See more articles on the Fair Work Act 2009 (Cth) at our page here.
Written by Angus Macpherson.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
Pay secrecy provisions were part of the various amendments to the Fair Work Act 2009 (Cth) (Act) introduced through the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill).
These provisions will have far reaching implications for employers and employees.
The primarily pay secrecy provision is section 333B of the Act.
Section 333B(1) of the Act provides that an employee may disclose, or not disclose, their remuneration or any terms and conditions of their employment that are reasonably necessary to determine remuneration outcomes.
Section 333B(2) of the Act provides that an employee may ask another employee about the other employee’s remuneration and any terms and conditions of the other employee’s employment that are reasonably necessary to determine remuneration outcomes.
The Revised Explanatory Memorandum for the Bill at paragraph 408 includes that section 333B of the Act allows employees to use information gained by asking about remuneration and relevant conditions to assess whether their remuneration is fair and comparable to that of other employees in the same workplace or industry.
Section 333B(3)(a) of the Act includes that each of the rights above is a workplace right within the meaning of Part 3-1 of the Act. Part 3-1 of the Act is the general protections part of the Act. For an overview about general protections, please see our article here.
The pay secrecy provisions introduced by the Bill were not limited to workplace rights on pay secrecy, but extended to prohibiting pay secrecy clauses in contracts and fair work instruments.
Section 333C of the Act provides that a term of a fair work instrument or a contract of employment has no effect to the extent that the term would be inconsistent with section 333B(1) or (2) of the Act.
Section 333D of the Act provides that an employer would contravene the section if they enter into a contract or other written agreement with an employee and the contract or agreement includes a term that is inconsistent with the pay secrecy provisions in 333B(1) or (2) of the Act.
Given these sections of the Act, employers should review their employment contracts and ensure that the contracts do not include any provisions that would fail to comply with the pay secrecy provisions of the Act.
The effect of sections 333B, 333C and 333D of the Act will likely have broad implications. While there have been some judgments on pay secrecy handed down, the implications yet to be fully explored by Courts and Tribunals at the date of this article.
In the case of Equans Electrical And Communications Pty Ltd [2023] FWCA 1705, Deputy President Dobson did not grant a request for a redaction of the customer/client names under schedule J of the Equans Electrical and Communications Pty Limited NSW Enterprise Agreement 2023-2026 for the reason, among others, that this redaction would breach section 333B of the Act.
If you require further information on pay secrecy, feel free to contact us.
See more articles on the Fair Work Act 2009 (Cth) at our page here.
Written by Angus Macpherson.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
As part of the Federal Government’s most recent suite of changes to the Fair Work Act 2009 (Cth) (Act), the requirement for an employer to make superannuation contributions will soon become part of the National Employment Standards in the Act.
The changes to the Act establish a way for a broader range of employees to recover their unpaid entitlement.
The ways employees can currently recover unpaid superannuation are quite limited.
Employees can seek to recover unpaid superannuation by making a report to the Australian Taxation Office (ATO). The ATO has broad regulatory powers for recovery.
Making a report to the ATO may be the only option to recover unpaid contributions for award free employees and employees covered by enterprise agreements that do not include a term providing a right to superannuation contributions.
There are more options for award covered employees and employees covered by some enterprise agreements, who are not limited to only making reports to the ATO. These employees can also apply to a Court to recover unpaid contributions from their employer.
Modern awards include a term requiring employers make contributions. For example, clause 19.2 of the Banking, Finance and Insurance Award 2020 provides:
“An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.”
Some enterprise agreements also contain terms requiring an employer makes superannuation contributions, but not all enterprise agreements include such a provision.
From 1 January 2024, a new Division 10A of Part 2-2 will be included in the Act, which will form part of the National Employment Standards.
In this division, a new section 116B will require an employer to make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay the guarantee charge under the Superannuation Guarantee Charge Act 1992 (Cth).
The effect of this provision will be to provide all employees that the division of the Act applies with a way to recover unpaid contributions by applying to a Court.
An employer who contravenes this entitlement to superannuation contributions could be subject to a civil penalty. The Explanatory Memorandum to the Bill including these provisions in the Act also provides it would be open for a Court to make other orders, such as compensation, if section 116B is contravened.
If you require further information on superannuation, feel free to contact us.
See more articles on the Fair Work Act 2009 (Cth) at our page here.
Written by Angus Macpherson.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
Litigation is generally not the first step when enforcing a restraint of trade. Parties generally seek to come to a resolution first. However, the parties are not always successful.
Depending on the circumstances, the first litigious step in a restraint of trade matter includes the plaintiff seeking interlocutory injunctive relief.
To be entitled to an interlocutory injunction in a restraint of trade matter, the plaintiff in the matter bears the onus of establishing:
1. there is a serious question to be tried for final relief;
2. damages would not be an adequate remedy; and
3. the balance of convenience favours the granting of an injunction.
These points are inter-related and may tip the balance one way or the other.
If there is a serious question to be tried in a restraint of trade matter depends on whether there is a prima facie case that:
1. there is a valid contractual restraint;
2. there is a breach, or apprehended breach, of the contractual restraint; and
3. the Court would, as a matter of discretion, grant injunctive relief for the breach.
The reasonableness of a restraint of trade may be questioned. Where this is the case, in the interlocutory matter it will usually be necessary for the Court to form a view about the prospects of the plaintiff establishing the restraint will be upheld.
The recent case of KPW Law Pty Ltd v Patel [2023] NSWSC 617 (Patel) is a good example. Where assessing the seriousness of the question to be tried, the Court interpreted the restraint the plaintiff was seeking to enforce and considered the issues related to the reasonableness of the restraint.
In Patel, Justice Richmond found there was a serious question to be tried. However, there were a number of issues about the contractual restraint of trade that the plaintiff would need to deal with at the final hearing in order to succeed and its case for an injunction was not strong.
Further information about the reasonableness of restraints of trade can be found on our article Restraint Of Trade And Post-Employment Restraints.
In assessing the balance of convenience on an interlocutory application for a restraint of trade, a Court looks to the practical consequences of making or refusing the order.
This requires considering what course is best calculated to achieve justice between the parties, bearing in mind the consequences to the defendant of granting the injunction, which the plaintiff might not ultimately obtain, and the consequences to the plaintiff of refusing the injunction, which it might ultimately be held to be entitled.
Relevant matters to be taken into account include: whether damages are an adequate remedy; the defendant’s right to a livelihood; any delay; the impact on third parties; whether the defendant was warned and went into the position with “eyes wide open”; whether any hardship that would be visited on the defendant has come about because they are the author of their own misfortune; the strength of the plaintiff’s case; and, any undertakings that have been given.
Courts have provided that damages are rarely an adequate remedy for breach of a negative contractual stipulation. Damages may be inadequate because once client relationships are severed, they may be difficult to repair and an award of damages, although possible, may not be the most suitable remedy.
In another recent case of Cushman & Wakefield Agency (NSW) Pty Ltd v Hudson [2023] NSWSC 218 (Hudson), Justice Richmond assessed the factors above. His Honoure found the balance of convenience favoured interlocutory relief. In the decision, among other things, His Honour referred to:
1. The role of the defendant within the business of the plaintiff provided a risk that damages will not be an adequate remedy. The role included access to significant confidential information.
2. The defendant was warned by the plaintiff and went into the situation of being employed by a competitor of the plaintiff with their eyes wide open.
3. The was not any material delay by the plaintiff.
4. The plaintiff’s case was not weak.
5. The plaintiff had given an undertaking to continue to pay the defendant’s salary and commission entitlements during a specified period relevant to the injunction and provided the usual undertaking as to damages should it fail to obtain final relief.
The Court found in Hudson that the balance of convenience favoured the granting of interlocutory relief.
Crawford de Carne have a keen interest and significant experience in litigation, and drafting of, restraints clauses. Our lawyers have acted to enforce and defend enforcement of employment restraints.
If you need advice or assistance, feel free to call Marc de Carne or Angus Macpherson on (02) 9189 5905 or email general@cdclaw.com.au.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 at general@cdclaw.com.au
The shiftwork provisions in the Building and Construction General On-Site Award 2020 (Award) for casual employees can be complicated.
The Award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within the Award. Many employees covered by the Award are engaged on a casual basis by employers.
Depending on the system of work, whether a casual employee is performing “shiftwork” ordinary hours or “overtime” under the Award may not be straightforward.
Recent cases dealing with overtime and shiftwork in the civil construction sector show the shiftwork and overtime provisions in the Award are subject to arguments and interpretation.
These cases show the complication of arguments on whether work is or is not shiftwork in the civil construction sector under the Award.
Clause 17.2 of the Award provides the shiftworker provisions for the civil construction sector.
For the purpose of clause 17.2 of the Award, “shiftwork” is defined in clause 17.2(a) as: “any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously”.
Some general summary points on the Award that are apparent from the cases include:
In the case of Retro Traffic Pty Ltd [2019] FWC 2062 (Retro Case), the company Retro Traffic Pty Ltd (Retro):
In the Retro Case, the Fair Work Commission concluded:
In Altus Traffic Pty Ltd [2019] FWCA 5941, the Fair Work Commission provided:
There are recent cases on the D&D Traffic Management & Other Work Enterprise Agreement 2020 that relate to the shiftworker provisions in the Award, including D&D Traffic Management Pty Ltd v The Australian Workers’ Union [2022] FCAFC 113 (D&D Traffic 2022) and D&D Traffic Management Pty Ltd v The Australian Workers’ Union & Ors [2021] FWCFB 4197 (D&D Traffic 2021).
In D&D Traffic 2021, the Full Bench of the Fair Work Commission found:
D&D Traffic 2021 was upheld by the Full Court of the Federal Court of Australia in D&D Traffic 2022.
The Court importantly provided in D&D Traffic 2022 on the shiftwork definition: “… the definition does not capture the situation where employees carry out work at location A and other workers then carry out work at location B. Such work is not carried on “upon work” on which another group had been previously engaged.”
Correct interpretation of modern awards is important. It can be quite costly if it is not correct. If you require assistance assessing provisions of the of the Building and Construction General On-Site Award 2020 or another modern award, feel free to contact us.
See more articles on modern awards at our page here.
If you need advice or assistance, feel free to call Marc de Carne on (02) 9189 5905 or email general@cdclaw.com.au.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 at general@cdclaw.com.au
A registered trade mark provides the owner with exclusive rights, including to use, license and sell the mark. It is also a marketing tool, as the significance of the owner’s mark can increase with the achievements of their business.
Trade mark infringement is very serious. Under section 120(1) of the Trade Marks Act 1995 (Cth) (TM Act):
“A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered.”
Section 126(1) of the TM Act provides the relief a court may grant in an action for an infringement of a registered trade mark, which include:
“(a) an injunction, which may be granted subject to any condition that the court thinks fit; and
(b) at the option of the plaintiff but subject to section 127, damages or an account of profits.”
While there are causes of action to enforce rights for unregistered trade marks, such as the tort of passing off, it can be difficult to establish and enforce these causes of action for unregistered marks, compared to those where a mark is registered.
In addition to mark infringement under section 120(1) of the TM Act, another business’ unauthorised use of a mark may accompany conduct and representations that relate to provisions of the Australian Consumer Law (ACL), schedule 2 of the Competition and Consumer Act 2010 (Cth). For example, section 18(1) of the ACL provides:
“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
It is onus of the owner of intellectual property to monitor its use by third parties and to enforce their rights.
If you are alleged to have breached intellectual property of another person or entity, an appropriate response is often necessary. Claims can escalate quickly.
Allegations are often made with demands. Demands often include the demand to give an undertaking to stop using the trademark and to refrain from future use.
A considered approach to a demand is important. Failing to act can lead to a trade mark owner asking a court to intervene. Injunctions can be requested and ordered. In some cases, urgent injunctions can be ordered.
If your intellectual property has been copied or used by another party, you can seek action. Advice should be sought in order to be aware of your rights, options available and costs involved.
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at general@cdclaw.com.au
There are only two categories of relationships at law between a worker and the person who receives the services of a worker, which are: an employer/employee; and, independent contractor/principal. The characterisation of a worker at law as an employee or independent contractor is relevant for tax, superannuation, workers compensation, employee entitlements and other rights, obligations and potential claims under the Fair Work Act 2009 (Cth) (FW Act).
There is not one simple test that is used to establish whether the working relationship is one of employer and employee or of principal and contractor. The court will look at the objective character of the relationship in the circumstances, having regard to the totality of the relationship. Practically, this involves the measuring and assessment of indicia. The courts have developed a non-exhaustive list of indicia that may be considered.
On 21 April 2020, the Full Bench of the Fair Work Commission rejected an appeal by Ms Gupta, who claimed that she had been unfairly dismissed, pursuant to the FW Act in the case Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698.
The appeal was against a decision of Commissioner Hampton in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd [2019] FWC 5008. The case involved an unfair dismissal application by an Uber Eats driver. Commissioner Hampton found that the Applicant was engaged as an independent contractor.
On appeal, the claim was unsuccessful as the Full Bench upheld the Commission’s initial determination that Ms Gupta was not an employee. The Full Bench’s decision is authority that delivery drivers connected with Uber Eats are not protected from unfair dismissal.
Interestingly, President Ross and VP Hatcher made a finding in their joint decision that while Ms Gupta was not an employee, she was also not conducting a business in her own right.
There are consequences for a business wrongly characterising employees as independent contractors. Section 357 of the FW Act provides the following:
“(1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.”
The case of Fair Work Ombudsman v Ava Travel Pty Ltd & Ors [2018] FCCA 3627, involved a tourist bus coach business that serviced two companies, and three coach drivers. The coach drivers were employees of the First Respondent until the First Respondent sent the following:
“dear all, please apply ABN and give to accounting before the end of this month, AVA driver wages starting next month will be the way to go ABN recorded, super still will have until the end of the month but in the next month, replaced by ABN way no longer provides.”
The text intended to convert the employees to independent contractors. The work of the employees did not change, and the only difference was that the employees submitted invoices that they were paid for instead of timesheets or job records. The Respondents admitted contravention of the sham contracting provisions of the FW Act.
For both businesses and workers the importance of correctly determining whether the working relationship is one of employer/employee or of principal/contractor cannot be understated. A business should be cautious and ensure they are correctly engaging a worker before providing to the worker that they are an independent contractor. On the other hand, a worker should scrutinise the relationship where they are simply told they are an independent contractor.
If you have any questions about employment contracts, please feel free to contact one of our staff.
Written by Marc de Carne and Angus Macpherson.
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