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Employment Law – FWC Slams Poor Agreement Drafting

Employment Law – Background

A poorly drafted enterprise agreement has been criticised by the Fair Work Commission (FWC). The case was brought by the Electrical Trades Union (ETU) and the Communications Union (CEPU) against electrical contractor Kentz Pty Ltd (Kentz) in dispute of a clause requiring the purchase of particular income protection products.

The case was initially heard in February this year when Commissioner Michelle Bissett found “no ambiguity” in the wording of the contractual requirement to purchase income protection insurance. However, an appeal was permitted by the Commission because the decision was “attended with sufficient doubt” to permit a rehearing. The full bench of the FWC reaffirmed the earlier decision. Furthermore, it highlights the importance of clear drafting of enterprise agreements in employment law.

Employment Law – Facts

In essence:

  • the ETU and Kentz entered into an enterprise ‘pattern agreement’ typically used in the electrical and communications industries
  • additionally, the agreement provided for Kentz to purchase default income protection products with the listed industry super provider
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Adverse Action Claim Dismissed

The Federal Circuit Court recently dismissed an employment law adverse action claim, in which an employee alleged her dismissal was related to her workplace injuries and a bullying complaint.

Background

  • The employee was working as a microbiologist in a medical laboratory. She sustained injury to her neck, due to the posture in which it was necessary for her to carry out her duties. She went on sick leave from September 2013 – February 2014, returning on light duties. Her workers compensation claim was accepted.
  • The employer made certain adjustments to the workplace to accommodate for her injury in accordance with its return-to-work obligations. The microbiologist argued that the adjustments made were inadequate to cater for her work-related disability.
  • Shortly after she returned to work the microbiologist also made a bullying complaint against her supervisor for threatening and intimidating her. The complaint was investigated and found to be unsubstantiated. A similar complaint had been made in 2010 with the same outcome.
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Restraint injunction granted against law firm partners

Background

Eight partners from a top-tier law firm in Sydney were (temporarily) prevented from moving to another rival law firm after ‘retiring’ from their old law firm by virtue of (some of) the restraints that they had entered into.

Decision

In a verdict granting an injunction in respect of the restraint provisions that was sought by the old law firm, the court:

  • upheld the “detailed and extensive protections offered” by the partnership agreement – in particular restraint clauses concerning:
  • transfer of work to the new law firm
  • solicitation of other lawyers from the old firm
  • rendering of services to the old firm’s current and related clients
  • acknowledged the strength of the eight partners reasoning in relation a number of subsequent restraint clauses which they argued were void for being unreasonable restraints of trade
  • found it difficult to see how a refusal to enforce the disputed restraint clauses could operate to the disadvantage of the old firm given the protections provided by the other restraint clauses
  • Continue reading…