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Workplace Law Cases
Australian Cases & Relevant information
| Case | Law | Information | |
|---|---|---|---|
| * Truck Act 1899 (WA) | Wages must be paid in money, not in other forms | ||
| Fetz v. Qantas Airways Ltd 1997 | AIRC (now FWA) recognised Qantas's custom and practice to have employees work permanently in area where they completed apprenticeship (Guaranteed continued employment) | ||
| * Amalgamated v. True 1938 | Employment contract must first exist before rights and obligations are attached | ||
| * Bryne v. Australian Airlines Ltd 1995 | Awards are made in settlement of industrial disputes, applicable awards can affect aspects of contract by is not part of it | Awards and collective agreements are separate modes of regulation from Common Law | |
| Gregory v. Philips Morris 1988 | Overruled by Bryne's case; when contract was silent about rights to fair dismissal, relevant provisions in awards become incorporated intro contract of employment | ||
| Hall v. A & A Sheiban Pty Ltd 1989 | International conventions and standards to be cause of local legislation to be formed | Process of creating State Law | |
| Qantas Airways v. Christie 1998 (HCA) | Check with overseas regulations | McHugh J referred to Article 12(1) of Discrimination Convention and meaning of 'job' | |
| * Narich Pty Ltd v. Commissioner of payroll tax 1983 | Must determine employer-employee relationship because of taxation reasons, Payroll Tax Act 1971; writing contract would be evidence of intention of true relationship | Money from the company (wages) was given to lecturers, employees | |
| FWA S 15(1) | An employee as a person who is usually an employee, is under a contract of service of employment contract | ||
| Industrial Relations Act 1999 (NSW) | Legislation can treat non-employee to be an employee to allow them to enjoy legislation's protection | ||
| Independent Contractors Act 2006 | Basic statutory protection, Federal Legislation can treat non-employee to be an employee to allow them to enjoy legislation's protection | ||
| * Federal Commissioner of Taxation v. J. Walter Thompson (Aust) Pty Ltd 1944 Control Test | Employers tell you how to perform, control is present, employment relationship | Artists were controlled during rehearsals and performances even though they were only paid for performances, employee | |
| Stevenson Jordan and Harrison v. Macdonald and Evans 1952 Integration/Organisation Test | Contract of service - man employed and work done is part of business; contract for service - although work done for business, it is not integral, only accessory | ||
| Market Investigations Ltd v. Minister of Social Security 1969 Integration/Organisation Test | Control is not sole determining factor, other factors such as - was person doing her own business or employed by company | Lady hired as a 'part-time' interviewer, paid for hours and additional expenses, allowed her to work for others but employee; control and work for others inconsistent, employee | |
| Market Investigations Ltd v. Minister of Social Security 1969 Business/Economic Reality Test | Under great control, no chance of profit or loss, employee | ||
| * Abdalla v. Viewdaze Pty Ltd 2003 Business/Economic Reality Test | Must weigh factors before concluding if employee/independent contractor, sometimes dependent on industry/profession | Chance of profit or loss, travel agent conducted business on company's premises and received commission, brought clients to company, work own hours and litte control, independent contractor (despite employment contract, superannuation contributions) | |
| Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Income 1968 Ready Mixed Concrete Test | Contract exists if: a)servant agree to provide work and skill in return for wage or other payment, b)servant expressly or impliedly agree to be subjected to master's control, c)all other terms consistent with whole agreement to be contract of service | Not accepted in Australia, c) is circular in reasoning, based on assumption that it is already a contract of service | |
| * Performing Right Society v. Mitchell and Booker (Palais de Danse) Ltd 1924 Multi-Factor Test | Lies in nature and degree of detailed control over person alleging to be servant, circumstance is only one of several | Generally applied | |
| Stevens v. Brodribb Sawmilling Co. Pty Ltd 1985 Multi-Factor Test | Control test was significant though not decisive without reference to other factors | Gray and Stevens are just independent contractors (persons who worked in sawmilling operations), not able to claim for injury sustained through vicarious liability | |
| * Building Workers Industrial Union of Australia v. Odco Pty Ltd (Trouble Shooters) 1991 | Odco contracting method: 'labour for hire' with an agency company who will assign workers to work with third party e.g. building contractors | Not much control, not paid by the week, no obligation to work for other except assigned, no leave entitlements, no contract with third party - Modified Odco Contracting Method: Hired employees, movable comodity at fixed wage | |
| * Vabu v. FCT 1996 | Couriers hired by Vabu own and maintain their vehicles for delivery, pay self-taxation and received payment for each delivery, independent contractors | ||
| * Hollis v. Vabu 2001 | Control element was present as couriers were not in business for themselves but followed instruction from Vabu, couriers not free to delegate/sub-contract,..., Vabu treated as employer | ||
| * Australian Mutual Provident Society v. Chaplin 1978 | Legal relationship must correctly describe actual relationship or courts would reassign correct labels | Labelling stated agent because of profession 'insurance agent', but work relationship was independent contractor | |
| * Century Insurance Co. Ltd v. Northern Ireland Transport Board 1942 | Century liable to pay out insurance to cover liability in relation to damage to customer's property even when employees were to obey customer's instructions, Driver is employee of Board, was negligent | ||
| Hamzy v. Tricon Internaional Business t/as KFC 2001 | Casual employment: Uncertainty about duration of employment and days or hours worked | ||
| * Sgobino v. State of South Australia | Casual employment: Series of contracts | ||
| * Melrose Farm v. Milward 2008 | Casual employment: Single ongoing contract (irregular hours of work, etc) | ||
| * Ryde-Eastwood Leagues Club Ltd v. Taylor 1994 | Casual employment: Casuals who start working substantial number of hours (regular basis per week, for a number of years) would have expectation to be employed, no longer a true casual and can enjoy rights like permanent employee | ||
| Metal, Engineering and Associated Industries Award 1988 | Casual employment: AIRC awarded metal industry casuals the right to convert from casual to full-time or part-time employees | ||
| The Clothing Trades Award (NSW) | Outworkers: Person or firm required to register with Board of Reference when work is performed outside workshop or factory | Ensures employer does not give outworker any condition of employment less favourable than what is stated by awards | |
| Textile Clothing and Footwear Union of Australia v. Southern Cross Clothing Pty Ltd 2006 | Ensures employer does not give outworker any condition of employment less favourable than what is stated by awards | ||
| Davies v. Presbyterian Church of Wales 1986 | Minister of Religion and other church personnel: Spiritual in nature ('servant of God'), neither employee nor independent contractor | ||
| Hobbs v. Petersham Transport Co. Pty Ltd 1971 | Bailment: Bailment exists upon delivery of goods from bailor to bailee, upon a promise (express or implied) that goods will be re-delivered to bailor, a carrier is a bailee as well | Taxi is privately leased to bailee by bailor for a specified period and agreed amount, taxi is to be returned at the end of period with agreed amount | |
| Fair Trading Act | Regulate conduct of hiring company (such as through advertisements)regardless of parties' intent during advertisement and interview stages | Government law deals with conduct before contract of employment, not after contract of employment starts | |
| * Trade Practices Act 1971 (Cth) S 53B | Regulate conduct of hiring company regardless of parties' intent during advertisement and interview stages | Government law deals with conduct before contract of employment, not after contract of employment starts, criminal offence if misleading conduct is use to mislead another person on matter relating to employment (availability, nature, terms of conditions) | |
| * Dawson v. Australian Consolidated Reserves Pty Ltd 1983 | Breach of Fair Trading Act and Trade Practices Act 1971 (Cth) S 53B when job promised does not exist (no such position, must perform more for stated salary) | Company advertised 'Girl Friday', with weekly wages but real intention is to look for commission agent who will pay deposit to take goods to sell | |
| * Federal Trade Practices Act S 52 | Any corporation in trade or commerce is not to mislead or deceive when engaging others | ||
| * Concrete Constructions (NSW) Pty Ltd v. Nelson 1990 | Intra-company conduct when dealing with internal department matters, do not purely engaging in trade, does not constitute to trade or commerce stated in Federal Trade Practices Act S 52 | Existing employee claim that employers' conduct had mislead/deceived him during employment when he relied on foreman's words and got injured | |
| * Stoelwinder v. Southern Health Care Network 2000 | Contract of employment falls in commerce or trade, regulated by Federal Trade Practices Act S 52 | Upon employment, orally promised entitled to benefits, later denied | |
| * Barto v. GPR Management Services Pty Ltd 1991 - | When existing employee negotiates change of terms to existing contract, or enter into new contract, is covered by Federal Trade Practices Act S 52 if company tries to deceive/mislead to make employee agree to new changes | ||
| * O'Neil v. Medical Benefits Fund 2001 | If hiring company authorise recruitment agency to interviews but agency misleads, company is also liable under Federal Trade Practices Act S 52 | ||
| * Walker v. Salomon Smith Barney Australia Securities 2003 | If hiring company told prospective worker that sale of company would not affect employment when it will or promised prospective employee certain department position but did not happen, breach of Federal Trade Practices Act S 52 | ||
| * McCartny v. Metropolital (Perth) Passenger Transport Trust (Transperth) 1993 | Equal Opportunity Legislation, no discrimination | Pregnant and fat bus driver in NSW failed medical fitness test on grounds of discrimination | |
| Equal Opportunity Act 1984 (WA) S 49A | Racial harassment in employment | ||
| Sex Discrimination Act 1984 (Cth) S 14 | Sex discrimination | ||
| Disability Discrimination Act | Indirect discrimination | ||
| Anti-Discrimination Act | Indirect discrimination | ||
| Powell v. Lee 1908 | Offer: Offer must be made by original offeror; no offer, no contract | Offer to be made school master was rumoured | |
| R v. Clarke | Acceptance: Acceptance must be in reliance of offer | ||
| Neale v. Merritt | Acceptance: Acceptance must be complete and unqualified | ||
| Merritt v. Merritt | Intention: Law presumes no intention for family, domestic, matrimonial or social relationships to contract, unless clear evidence | ||
| * Dietrich v. Dare 1980 | Intention: Law presumes no intention for family, domestic, matrimonial or social relationships to contract, unless clear evidence Consideration: Must be legal, tangible and of value, can be inadequate, as long as sufficient in eyes of law and parties | Dietrich (disabled) was on trial period when he painted Dare's house, Dare often introduced unemployed persons (such as Dietrich) to be employed, social arrangement,no intention to contract | Dietrich painted Dare's house for $2 per hour, both parties agreed |
| * Bradley v. Bradley | Intention: Law presumes no intention for family, domestic, matrimonial or social relationships to contract, unless clear evidence | Son worked for family hotel, no signed contracts, no evidence of legal relationship, family arrangement, not an employee | |
| Re Casey's Patent | Consideration: Exception that past consideration with be recognised | Based on further/subsequent promises made by other party in exchange of past consideration provided by party (e.g. reward for finding missing item) | |
| Minimum Condition of Employment Act 1993 (WA) S 17B | Consideration: Legislation states wages must be in money: Employee not be compelled to accept other than money for pay | ||
| Williams v. Roffey Brothers 1990 | Consideration: For every promised, there must be consideration, when new promise is made, must be supported by new consideration or new benefit | ||
| * Nash v. Inman | Legal capacity to contract (Minors): Exception, contract provides for necessaries like basic food and clothings, if provide luxury will be void | ||
| * Roberts v. Gray | Legal capacity to contract (Minors): Exception, contract of employment/training/education/service or apprenticeship for minor's benefit | ||
| Corporations Act 2001 S 131 | Legal capacity to contract (Employing party): Company as employer who employ employees including minors, will not face legal problems | Company may be bound by contract even if it was signed pre-formation of company, employment contracts need to be refreshed | |
| Peckham v. Moore 1975 | Legal capacity to contract (Employing party): Unincorporated associations as employer who employ employees might face legal problems | Associations are not separate legal entity as employing party is groups of individiuals | |
| Trade Practices Act 1974 (Cth) S 52(1) part v | Mutual consent between parties (Misrepresentation): Corporation engaged in misleading or deceptive conduct by misrepresenting on facts is at breach | Misrepresenting on facts: not sales talk, statements of law, statements as to future conduct or intention, statements of opinion, silence or non-disclosure | |
| Allcard v. Skinner | Mutual consent between parties (Undue Influence): Actual undue influence exist or special relationships of dominant/subservient nature like religious advisor and disciple or parent and child, undue influence presumed exist | ||
| Johnson v. Buttress 1936 | Mutual consent between parties (Undue Influence): Burden is on dominant person to rebut presumption of undue influence | e.g. Prove that third party advice was sought by subservient party | |
| Lloyds Bank | Mutual consent between parties (Undue Influence): Undue influence based on conduct of parties, circumstances and relevant facts matter | No relationship | |
| National Westminister Bank | Mutual consent between parties (Undue Influence): Does not mean undue influence will occur if parties are professional in dealings, circumstances and relevant facts matter | ||
| FWA S 343, 344, 345 | Mutual consent between parties (Undue Influence): Legislation to prohibit duress and undue influence, penalties apply even if employee did not succumb | ||
| Jordan v. Morrington Inn Pty Ltd 2008 | Mutual consent between parties (Undue Influence): Employee did not sucuumb, but penalities of FWA S 343, 344 ,345 apply | ||
| Higgins | Mutual consent between parties (Mistake): Must prove that non-mistaken party actually knows and accept that contract takes unfair advantage | ||
| Hartog | Mutual consent between parties (Mistake): Must prove that non-mistaken party actually knows and accept that contract takes unfair advantage | ||
| Couturier | Mutual consent between parties (Mistake): Bilateral, Common, Made contract without realising subject-matter does not/ceased to exist | e.g. Tools were self provided vs provided by company | |
| Raffles v. Wichelhaus | Mutual consent between parties (Mistake): Bilateral, Mutual, Made contract with parties at cross-purposes, thinking/acting on different subject-matter without realising | e.g. Hiring full-time permanent employee vs permanent employee who perform full-time employee duties while working part-time | |
| * Ferguson v. John Dawson and Partners (Contractors) Ltd 1976 | Form of Contract: No extra legal requirements of formalities required by laws to have employment contracts to be signed and wrtiten, oral contracts can still be enforceable | ||
| * Henderson v. Australian Chamber of Manufacturers 1992 | Express Terms: If written terms are clearly spelled out, courts would go accordingly to intention | ||
| * Holland Stolte Pty Ltd v. Bergamin 1991 | Express Terms: When courts are to insert terms, terms must be compatible, i.e. not contradictory to express terms agreed by parties | ||
| *Narich Pty Ltd v. Commissioner of Payroll Tax 1983 | Employer's Policy Manual/workbook: Employees must obey, so long it is reasonable and lawful, be it expressed or implied terms | ||
| * Australian Mutual Provident Society v. Chaplin 1978 | Employer's Policy Manual/workbook: Employees must obey, so long it is reasonable and lawful, be it expressed or implied terms | ||
| * Raynes v. Arnotts Biscuits Pty Ltd 1991 | Employer's Policy Manual/workbook: If before or at time of contracting, rules are made known, rules form part of contract | Safety rules were stated in an induction booklet | |
| * Riverwood International Australia v. McCornick 2000 | Employer's Policy Manual/workbook: If appointment letter of offer or employment contract reflects that rules of policy must be obeyed, it is part of the terms | ||
| * Goldman Sachs JB Were Services v. Nikolich 2007 | Employer's Policy Manual/workbook: If appointment letter of offer or employment contract reflects that rules of policy must be obeyed, it is part of the terms | ||
| * Con-stan Industries of Australia Pty Ltd v. Norwich Winterthur Insurance (Australia) Ltd 1986 | Implied Terms (Common Law): How customs can be implied | Customs must be so well known and accepted that anyone in trade would import it; if contary to existing terms in contract, it will not be imported; if trade know and accepted custom, will be imported even if one party does not know | |
| Wilson v. South Australian Superannuation Board 1995 | Implied Terms (Common Law): Cutomary that employment end when member of parliament who employed him lost seat | ||
| * Australian Fertilizers Ltd v. Australian Workers Union (NSW) 1983 | Implied Terms (Common Law): Parties with long-standing custom can vary or change it altogether by mutual agreement | Court held that custom is not mutually agree; still have to pay break time and shift allowance | |
| * Qantas Airways Ltd v. Fetz 1998 | Implied Terms (Common Law): Standard custom expressly not wanted by both parties cannot be implied by courts as courts have to upload parties' intention | ||
| * Creswell v. Board of Inland Revenue 1984 | Implied Terms (Common Law): Custom can be outmoded/outdated | Staff complained about using computers and claimed it was custom to manually file information in file and paper records | |
| Re Alcan Australian Ltd 1994 | Implied Terms (Common Law): Not every custom developed in workplace will be implied | Recognised custom to deduct union membership fee from wages but not relevant to employment relationship, freedom of association is also present | |
| * Shirlaw v. Southern Founderies 1926, Ltd 1939 | Implied Terms (Common Law): Methods, Officious Bystander Test,courts feel necessary to imply, it is what both parties wanted and intended to include | ||
| * BP refinery (Westernport) Pty Ltd v. President, Councillors and Ratepayers of the Shire of Hastings 1977 | Implied Terms (Common Law): Methods, Business Efficacy Test, courts feel necessary to imply to make contract workable | ||
| Industrial Relations Act 1996 (NSW) S 56(2) | Implied Terms (Statute Law): Legislation may nullify or void contract terms | e.g. Parental leave | |
| * Australian National Hotels v. Jager 2000 | Implied Terms (Statute Law): Legislation prevent terms to be implied | When contract was silent on period of reasonable notice, employer gave employee six months, employee demanded two years, Industrial Relations Act 1996 stated only one month is required | It is more that sufficient to discharge employer's statutory and contractual obligation |
| * Bryne v. Australian Airlines Ltd 1995 | Implied Terms (Awards and Collective Agreements): Disallowed awards to imply into employment contract | Overruled Philips v. Gregory Morris 1988 | |
| * Zuijs v. Wirth Brothers Pty Ltd 1955 Control Test | Workers who are highly specialised with more skills than employer, difficult to show degree of control, but control remained in management issues, employers' right to exercise control | Trapeze artist can decide when and how to perform, but is regulated by management for reporting time and circus rules, employee | |
| * Other Factors Multi-Factor Test | Independent Contractor: a)Payment Method - invoice b)Self provision and maintenance of tools and equipment c)Expenses deducted from total income d) Managed differently as employees e) Place and work not decided by company, might be by agency | f)Holidays and sick leave (employment benefits) not provided g)Delegate work to others h) No deduction of income tax from worker's earnings (pay own tax) i)Use company name to sign with hiring company j)Generate goodwill | k)Not required to wear company identity l)Engaged to complete specific task |
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