Workplace Law: Construction- Forestry And Mining

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Workplace Law: Construction, Forestry And Mining

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Workplace Law: Construction, Forestry And Mining

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Question:
Discuss about the Workplace Law for Construction, Forestry and Mining.

Answer:

Issue
The issue in this case is to identify the position of Ken in relation to redundancy
Rules
An employer has the right to terminate employment on the basis of redundancies. The situation of redundancy occurs when the position where the employee is working is no longer required by the business or the business is no long capable of sustaining employment.
There are specific criteria which an employer must follow in relation to the process of redundancy or else the employee would have the right of making a legal claim. The employee has the right to make a claim of unfair dismissal unless there is a genuine redundancy under The Fair Work Act 2009 (FW Act).
All contracts has two types of terms namely expressed terms and implied terms. In the same way employment contract also contain expressed as well as implied terms. Whether an implied term is present in a contract or not is determined by the court. The presence of an implied term is determined by the court by analyzing the fact that whether the term is necessary for the continuation of the contract. If the term is obvious and mandatory for the contract it is an implied term. The term cannot be held as implied if it is merely just or equitable as provided in the case of Barker v Commonwealth Bank of Australia [2014] HCA 32.
Another significant case in Australia related to implied terms and commercial custom usage is the case of Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 where the same principles of implied terms had been discussed.
in the case of UES (Int’l) Pty Limited v Leevan Harney [2012] FWAFB 5241 it had been ruled by the court that where there is genuine redundancy the employer can chose any method to dismiss an employee unless such measure is unfair or discriminatory in nature with respect to age, sex , gender , religion, pregnancy or matrimonial status. The case also provided that using the last on first off policy could lead to age or sex discrimination when it comes to previous practices of employment of the employer.
the case of Morgan v Mineral Technologies Pty Ltd (2015) FWC 4142 it had been provided by the Fair work commission that the decision of the employer not to deploy the first on last off policy did not account to unfair dismissal. The court provided that “This is an irrelevant consideration for the purposes of this application and it is a selection criterion that in any event may compromise the productivity of the employer and exacerbate the business difficulties facing the company. It is not a selection criterion to which the employer gave any consideration whatsoever.”
In the case of Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 the employer wanted to deploy the Last on first of policy in relation to a redundancy situation. The court held that the employer’s decision is unfair as most of the employees who were to be made redundant were women and accounts to sex discrimination.

In the case of Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd (1997) 76 IR 364 it had been ruled by the court that the application of the “last on-first off” policy is not always discriminatory and can also be applied if it is fair according to the employer.
The Employer’s Policy manual/workbook is provided to the employees and has contractual effect in relation to the terms contained in it.
Application
In the given situation it has been provided that Bob and Ken are the drivers of Ore Ltd. Bob was better qualified than Ken but was working as an assistant of Ken for the last 18 months. Ken is working for 20 year in the company and has been surprised to find out that he has been placed on the redundancy list. He expected that the company would follow the policy of “last in first off” which was generally used in the industry. However as per the facts of the case the company put him on redundancy instead of Bob who had only been working for 18 months. According o te principles provided by the case of baker and Con-stan it can be evidently argued that the “last in first off” is not an implied term of the contract. This is because it is not an obvious or necessary term in relation to the existence of a contract. it may be argued that the incorporation of such terms may be done through customs in a contract but the policy is not very frequently used or popular in order to be an implied term. In addition the employers are allowed to choose any method to make an employee redundant unless such selection is unfair or discriminatory. As per the provisions provided by the case of Morgan the company not using the “last in first off” policy would not lead to a unfair redundancy. In addition there is no discrimination or unfairness which he employer has indulged into and such method of redundancy would be regarded fair under the FW Act.
Conclusion
Thus it can be ruled that the “last in first off” is not an implied term of the contract and the company has not made any breach of legal provisions by not using the “last in first off” policy.

References
Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Barker v Commonwealth Bank of Australia [2014] HCA 32.
Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd (1997) 76 IR 364
Fair Work Act 2009 (FW Act
Morgan v Mineral Technologies Pty Ltd (2015) FWC 4142
UES (Int’l) Pty Limited v Leevan Harney [2012] FWAFB 5241

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