Skip to content.

Home

Allens Arthur Robinson

Focus: Workplace Relations – August 2003

In this issue: We look at the outcome of the Emwest appeal; drafting deeds of release; cashing out long-service leave; employees of labour hire companies being eligible for union membership; the creation of a new Australian tort of invasion of privacy; and avoiding discrimination when managing employee sick leave. 

Emwest appeal fails

In brief: Protected action remains a legitimate weapon to support claims outside the scope of a current certified agreement. Partner Jamie Wells reports on the Federal Court's review of the Emwest decision. 

First instance decision

A Full Court of the Federal Court was asked by the Australian Industry Group (AIG) to review the decision reached by Justice Kenny in February 2002.1 At first instance, Justice Kenny was asked by Emwest to decide whether it is legitimate to take protected action to support claims about matters not covered by a current certified agreement, with the intention that those newly agreed terms and conditions will be certified as a separate agreement. Emwest argued that, once there is a current certified agreement in place, the legislative regime does not allow for protected action to support further claims, relying on section 170MN of the Workplace Relations Act.

Prohibition on industrial action

Section 170MN prohibits industrial action if taken for the purpose of supporting or advancing claims against the employer in respect of the employment. Emwest argued that the words in respect of the employment mean that, although parties are at liberty to make additional agreements, protected action cannot be taken when negotiating them. Justice Kenny disagreed, and the AIG appealed as a representative body having an interest in the issue.

Matters outside current agreement

On appeal, the Full Court upheld the ruling and confirmed that s170MN does not prohibit protected action supporting claims outside the scope of a current certified agreement. In reaching that conclusion, the Full Court:

  • accepted that s170MN prohibits industrial action when taken to support claims about a matter covered by a current certified agreement;
  • did not accept that s170MN went further to prevent industrial action to support claims about a matter not dealt with in a current certified agreement;
  • accepted that there were policy arguments supporting both sides of the argument; and
  • preferred an approach that allows parties to reach agreement on particular matters and have the agreement certified, without depriving either party of the right to take protected action to support other claims. To do otherwise would hold up certification of an agreement if one or two issues could not be resolved, nor safely put to one side.
Solution for employers

The result does not mean that s170MN has no effect, nor that employers will always be exposed to further claims once they believe they have negotiated a complete certified agreement. The solution is to ensure that the certified agreement is treated as being exclusive, covering all matters between the parties while the agreement operates. No extra claims clauses are common, and the challenge is to ensure they are expressed so as to rule out further claims of any sort, whether relating to a matter covered in the agreement or otherwise. If expressed in clear terms, the Emwest situation will be avoided and industrial action taken during the agreement's currency will not be protected.

Return to top

Perils of drafting a release

In brief: Dismissed employees signing deeds of release in exchange for extra termination benefits are unlikely to be allowed to challenge the dismissal. But the release may not prevent other claims, as shown by a recent NSW decision, reports Senior Associate Suzanne Weingott.

In Focus: Workplace Relations, July 2003, we reported that dismissed employees signing deeds of release in exchange for extra termination benefits are unlikely to be allowed to challenge their dismissal. But a recent decision of the NSW Court of Appeal2 shows that the release must be carefully worded in order to prevent other claims being made.

One claim, then another

Mr Robert Bellach sued his former employer, Mid Western Area Health Service, claiming he suffered injuries after falling off a ladder while pruning some trees. As a defence, the Health Service relied on a release that Mr Bellach signed when he settled an unfair dismissal claim some years earlier.

Claim allowed to proceed

Deciding that the release did not prevent Mr Bellach from bringing his personal injury claim, the Court of Appeal took note of:

  • the background set out in the release, which said that Mr Bellach had brought unfair dismissal proceedings against the Health Service, but those proceedings had been settled and the release recorded the terms of settlement;
  • the release itself, which said that Mr Bellach 'releases ... [the Health Service] from all ... liability ... arising out of or incidental to his employment ... and its termination, such release not extending to any or all of Mr Bellach's rights to make any claim for workers' compensation'; and
  • its finding that, at the time of signing the release:
    • the solicitors for the Health Service had no idea of the existence of the personal injury claim; and
    • Mr Bellach had not turned his attention to the effect of the release on the personal injury claim.
Conclusion

The interpretation of the release is narrow and means that clear words must be used if all possible claims are to be compromised. Employers would be wise to ensure that, if this is the intention, the release is expressed to apply to all claims of whatever nature (whether related to the termination of employment or not, and whether known to the parties at the time, or not) and are intended to finalise all legal matters between the parties.

Return to top

Cashing out long-service leave

In brief: In Focus: Workplace Relations , June 2003, we reported the limits on access to pro rata long-service leave by employees in Queensland when resigning from employment. In contrast, a later decision of the Queensland Industrial Relations Commission reflects the comparative ease when claiming a payment in lieu of an accrued long-service leave entitlement. Lawyer John Naughton reports.

Payment in lieu of long-service leave

In the decision of Sergeant X v Queensland Police Service3, the Commission considered the circumstances in which an employee is entitled to receive payment in lieu of accrued long-service leave. The Industrial Relations Act 1999 allows an employee to apply for a payment in lieu of long-service leave entitlements, either on compassionate grounds, or on the grounds of financial hardship.

In this case, the employee was a 36-year-old sergeant in the Queensland Police Service. He had no financial liabilities but, because of financial obligations arising out of previous marital relationships and 'plain bad luck', his income barely exceeded his expenditure. However, he had managed to accrue 27 weeks of long-service leave entitlements. The employee applied to have 18 weeks of this entitlement paid out to use as a deposit on a family home.

Financial hardship

The Commission considered that the inability to purchase a family home because of the lack of a deposit fell within the meaning of financial hardship. It noted that, without cashing out some of the employee's long-service leave, he would not be able to save the deposit required. The Commission also thought it was significant that the employee was not trying to cash out all of his long-service leave entitlement.

Implications

The decision shows the broad scope of financial hardship applied by the Commission. This may be an attractive alternative to employers who, in a proper case and with the employee's consent, may prefer to crystallise part of the entitlement instead of having the employee absent from the workplace for the full leave period.

Return to top

Labour hire companies and union membership

In brief: Employees of labour hire companies can be eligible for union membership, even if not directly employed in the relevant industry. In recognising eligibility, the Australian Industrial Relations Commission has confirmed that it will focus on the activities of the employees. Lawyer Jonathan Morley reports.

Background

In this case4, the National Union of Workers (NUW) served a letter of demand and log of claims on a number of companies, including The Recruiting Company. The Commission's jurisdiction to consider the demand was opposed by The Recruiting Company, on the basis that the NUW rules did not cover labour hire companies. The NUW rules define eligibility for union membership according to industry activities, including selling, buying, manufacturing, growing or picking various things. The Recruiting Company argued that, as a labour hire company, it was not involved in such activities, but rather in the provision of labour to facilitate others engaging in these activities.

Activities of employees the key

The Commission did not accept that argument, holding that, although The Recruiting Company's business was labour hire, this did not prevent its employees from falling within the NUW's eligibility rules. The employees were engaged at a vegetable packing shed, an activity included in the NUW eligibility rules. According to the Commission, the employees of The Recruiting Company were therefore eligible to become members of the NUW.

Implications

On the face of it, the Commission's decision was based on a literal interpretation of the NUW rules defining eligibility for union membership and their application to these particular employees. Nonetheless, the decision introduces another potential area of risk for labour hire companies, the nature and identity of which have been the subject of a number of recent cases.5 The decision highlights the need for labour hire companies (and their clients) to be aware of potential exposure to industrial disputes as a result of the activities of their employees.

Return to top

Damages awarded for breach of privacy

In brief: A Queensland court recently created a new Australian tort of invasion of privacy, after awarding compensation to a woman the court found had been stalked and harassed. Senior Associate Suzanne Weingott reports on this major development.

In an Australian first, the District Court of Queensland awarded $178,000 to Mrs Alison Grosse, the Maroochy Shire mayor, after finding she had been stalked and harassed by a former boyfriend, Mr Robert Purvis.6 

The offensive behaviour

For a number of years after the relationship between Mrs Grosse and Mr Purvis ended, Mr Purvis persistently:

  • loitered near Mrs Grosse's home, work and places of leisure;
  • spied on her private life;
  • entered her home uninvited;
  • made offensive phone calls; and
  • engaged in unwelcome physical contact and used offensive and insulting language to her and her friends,

causing Mrs Grosse to suffer anguish and post-traumatic stress disorder.

Does invasion of privacy give a cause of action in damages?

Yes, according to Judge Skoien of the District Court, stating that an Australian tort of invasion of privacy was 'a logical and desirable step'.

Judge Skoien suggested that to establish invasion of privacy, the plaintiff must show:

  1. a deliberate act by the defendant;
  2. which intrudes on the privacy or seclusion of the plaintiff;
  3. which would be considered highly offensive to a reasonable person; and
  4. which causes the plaintiff mental, psychological or emotional harm or distress, or which hinders the plaintiff in their lawful activities.

But Judge Skoien did not conclusively set the parameters of the tort or its defences, limiting his findings to those necessary to decide the case. He left, for future determination, questions such as what, if any, defences were available, and whether the tort would be established if the act was negligent rather than deliberate.

A significant change

Until now, Australians have had to rely on privacy legislation to protect their privacy. But the legislation does not protect anything other than personal information, and does not create a right to damages.

That limitation may be a thing of the past, if Judge Skoien's decision is upheld. Mr Purvis recently appealed and the decision of the Appeal Court will provide more authoritative determination of the issue. But, in the meantime, with no other Australian authority on the tort of invasion of privacy, Judge Skoien's decision is persuasive.

Implications for employers

Employers should keep a close eye on developments in this area of law. If Judge Skoein's decision is upheld on appeal, it may have ramifications for the way in which employers manage their business and ensure the health and safety of their workforce.

AAR will continue to keep you posted of developments in future Focus: Workplace Relations publications.

Return to top

Discrimination and sick leave

In brief:  A recent decision of the Administrative Decisions Tribunal of New South Wales illustrates that over-zealous management of employees with extensive sick leave records may breach anti-discrimination laws. Lawyer John Naughton reports.

A record of sick leave, a resignation and a discrimination claim

In this case7 , Mr Denis Mooney was an accountant with the New South Wales Police Service. He suffered from gall bladder disease, abdominal pain, osteo-arthritic knees, migraines, viral infections, gastro-intestinal problems, diarrhoea and a chest infection. Between 1990 and 1995, Mr Mooney took between five and 27 days of sick leave annually, but never exceeded his accumulating entitlement of 15 days per year.

Mr Mooney resigned in 1995, aged 65. Some time later, he alleged that he had been discriminated against during his employment on the grounds of disability because:

  • he was required to provide medical certificates for every sick leave absence;
  • he was counselled and given disciplinary warnings in relation to his sick leave record; and
  • being harassed by supervisors and other staff led to a poisoned work environment.
Disability discrimination established

The Tribunal compared the Police Service's treatment of Mr Mooney – a person with a tendency to take significant (but authorised) sick leave – with the treatment of a hypothetical person, who tended to take extensive leave for other reasons (such as family leave, or leave without pay).

The Tribunal concluded that the management of Mr Mooney's sick leave had been heavy-handed and discriminatory. It placed considerable weight on three factors:

  • first, the Police Service misapplied the sick leave policy. Mr Mooney had not taken any more sick leave than he was entitled to, and all of his absences were supported by medical certificates;
  • second, the Police Service would not have disciplined an employee taking extensive, but authorised, leave for other reasons; and
  • third, the Police Service effectively caused Mr Mooney to resign, since his medical conditions meant that he could not improve his attendance, as he had been directed to do.
Lessons for employers

Employees misusing their sick leave are not immune from appropriate disciplinary action. But if there is no legitimate reason to suspect that an employee is misusing their sick leave entitlement, the employer must tread carefully. If the condition is genuine, management of the absence must be carefully handled, not only from an employment perspective, but to comply with discrimination standards.

Footnotes
  1. AIG v AMWU [2003] FCAFC 183, on appeal from Emwest Products v AMWU (2002) 117 FCR 588
  2. Bellach v Mid Western Area Health Service [2003] NSWCA 165
  3. B1170 of 2003, Commissioner Blades, 24 July 2003
  4. National Union of Workers v Integrated Workforce Pty Ltd and Others, PR934671, 11 July 2003
  5. For example, refer to ALHMWU v Burswood Catering and Entertainment Pty Ltd [2002] WAIRC 4778, and Oanh Nguyen v ANT Personnel & Thiess Services, 3 March 2003, unreported
  6. Grosse v Purvis [2003] QDC 151
  7. Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107

Return to top

For further information, please contact:

Return to top

Share with

What are these?

 

 

Recent Workplace Relations publications