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Wednesday 14 th September 2016
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Knowing when you can't say ‘no’
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In today's Workplace Bulletin:
- Know your rights as an employer under an enterprise agreement
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 | If you have a right to require something of an employee under an award or enterprise agreement, dismissal for disobedience will not be adverse action. For instance, in Qube Ports Pty Ltd v McMaster (9 September 2016) a stevedoring employee claimed his employer had taken adverse action against him in contravention of the general protections provisions of the Fair Work Act 2009 (Cth). |
The employee refused to comply with his employer’s direction to 'upgrade' from a Grade 3 position to a Grade 5 position. As result he was dismissed.
Dismissal would only be unlawful if it was because the employee had exercised a workplace right. The workplace right claimed by the employee was an entitlement to the benefit of the enterprise agreement and the award. The employee argued that under the award or the enterprise agreement, the employer was not allowed to require the employer to upgrade.
Therefore, the employee was entitled under the award/agreement to refuse to upgrade.
The enterprise agreement provided that “each employee will carry out all work within their recognised and required competency as reasonably directed” by the employer. |
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Ongoing amendments to the Fair Work Act mean that
your responsibilities as an employer change all the time.
But there is a way you can make sure your business is always
well-informed when it comes to employment law…
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The Court interpreted this as allowing the employer to reasonably direct an employee to carry out work within the employee's competency. This was consistent with the “competency-based” or “skilled-based” classification structure in the agreement.
The Court ruled the work that may be required of an employee is not confined to the performance of the functions specified by the employee's designated grade. The employer may require the utilisation of all of the skills held by the employee, whether or not the skills have been recognised for classification purposes.
Hence, the employer was entitled to require a Grade 3 employee to perform the work of a Grade 5. Accordingly, the employee's dismissal was not motivated by any workplace right under the FW Act.
Thanks for reading,
Charles Power
Editor–in–Chief
Employment Law Practical Handbook
The Employment Law Handbook, written by the legal experts at Holding Redlich, including Editor-in-Chief Charles Power, has a whole chapter dedicated to enterprise agreements, so employers can fully understand what they can and cannot demand of employees under such arrangements.
An enterprise agreement (or collective agreement) is an agreement made between a national system employer and some or all of its employees who are employed at the time the agreement is made. The agreement regulates minimum wages and employment conditions.
There are three types of enterprise agreements:
- single-enterprise agreements;
- multi-enterprise agreements; and
- greenfields agreements.
The type of agreement you will need to use depends on whether your business:
- already exists; or
- has not yet employed anyone.
The Fair Work Act 2009 (Cth) (FW Act) governs the requirements for making enterprise agreements.
Enterprise agreements created without the help of legal experts, like the advice found in the Employment Law Handbook, can be difficult to comprise and harder to manage. Therefore, we recommend you take full advantage of the wealth of information contained in the handbook before starting your negotiations.
PS: There is also a separate chapter on enterprise bargaining to help employers who are in the midst or considering implementing an agreement with their workforce.
Get your copy today on an obligation-free trial. You have nothing to lose.
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Workplace Bulletin ISSN 1836-117X
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