NSW Fair Work Australia Implied Contract Terms and Conditions?
- Thread starter Taco Cat
- Start date
A breach of WH&S policy is not enough by itself. What action resulted from the breach?
And as Tim says a lawyer will have to read the contracts to apply the law to your situation. You need an employment lawyer for this level of analysis.
FYI @Tim: Under current employment laws sham contracting is sometimes irrelevant to an adverse action claim. It can be used in some situations, but is not a necessary precondition all claims involving contractors. Adverse action expands definitions and often refers to a 'person' not an employee.
And as Tim says a lawyer will have to read the contracts to apply the law to your situation. You need an employment lawyer for this level of analysis.
FYI @Tim: Under current employment laws sham contracting is sometimes irrelevant to an adverse action claim. It can be used in some situations, but is not a necessary precondition all claims involving contractors. Adverse action expands definitions and often refers to a 'person' not an employee.
The contract term is an Australian Standards generic services contract term. (I've abbreviated it above). The contract is not a sham contract. It would've been great if Australian Standards had thought it wise to write a clause that stated "the parties to this contract will abide by WH&S legislation" but they didn't.
The claim can't go directly through WH&S law because the time limit has passed. I'm not writing the adverse action in this forum, but to emphasise the point of my post, the adverse action would definitely be adverse action for a prescribed reason under the employee/employer section of 342, and probably adverse action under altering the position of the independent contractor to their prejudice, but I think "injuring" is safer in court, and injuring has to be in relation to the terms and conditions of the contract because that's what parliament decided in their wisdom.
It maybe that upholding the term of the contract ("employee of independent contractor must follow WH&S procedures") is enough to construct a compensable adverse action claim, but it places no express contractual onus on the principal to follow WH&S legislation. Theoretically, the case can fail through no jurisdiction under section 342. To avoid that, the Judge must feel confident in stating "it's an implied term of this contract that the principal had to abide by WH&S legislation". Not only is it implied by the specific term, but it may be implied also because the 2006 Independent Contractors Act makes it clear that WH&S laws always apply, but an express contract clause it is not.
If a poster wants to state here that "altering the position..." is just as good a claim for damages as "injuring.....", great, please feel free to offer that opinion, especially if you think like a lawyer because you are lawyer!
The claim can't go directly through WH&S law because the time limit has passed. I'm not writing the adverse action in this forum, but to emphasise the point of my post, the adverse action would definitely be adverse action for a prescribed reason under the employee/employer section of 342, and probably adverse action under altering the position of the independent contractor to their prejudice, but I think "injuring" is safer in court, and injuring has to be in relation to the terms and conditions of the contract because that's what parliament decided in their wisdom.
It maybe that upholding the term of the contract ("employee of independent contractor must follow WH&S procedures") is enough to construct a compensable adverse action claim, but it places no express contractual onus on the principal to follow WH&S legislation. Theoretically, the case can fail through no jurisdiction under section 342. To avoid that, the Judge must feel confident in stating "it's an implied term of this contract that the principal had to abide by WH&S legislation". Not only is it implied by the specific term, but it may be implied also because the 2006 Independent Contractors Act makes it clear that WH&S laws always apply, but an express contract clause it is not.
If a poster wants to state here that "altering the position..." is just as good a claim for damages as "injuring.....", great, please feel free to offer that opinion, especially if you think like a lawyer because you are lawyer!
It staggers me how cowardly the Labour Government were with some elements of the FW Act when they had just won a general election in which Work Choices had taken centre stage.
This is the cowardly statement they make about section 342 in the explanatory memorandum:
On its face, the workplace rights protections apply to a very broad
range of persons. However, the definition of adverse action in
subclause 342(1) limits the action that will give rise to liability in
relation to workplace rights to specified action taken by specified
persons against other specified persons.
Column 2 is anti worker. It shouldn't even exist. The only legal questions should be: Was there an adverse action? Was it for a proscribed reason?
End of rant.
This is the cowardly statement they make about section 342 in the explanatory memorandum:
On its face, the workplace rights protections apply to a very broad
range of persons. However, the definition of adverse action in
subclause 342(1) limits the action that will give rise to liability in
relation to workplace rights to specified action taken by specified
persons against other specified persons.
Column 2 is anti worker. It shouldn't even exist. The only legal questions should be: Was there an adverse action? Was it for a proscribed reason?
End of rant.
You don't need a contractual obligation saying someone has to follow WH&S laws. The laws have to followed regardless of what is in the contract.
Item 3 Col 1,2 or 3 likely apply. Alter or injure is available to you. If your circumstances fit either definition you likely have a valid cause of action.
You may be placing too much emphasis on whether the requirement to follow WH&S laws are an implied or express term of a contract. Without disclosing the circumstances it is not possible to comment on whether the action is within jurisdiction.
I suspect I am not quite understanding your concern despite your well expressed posts, sorry about that.
Item 3 Col 1,2 or 3 likely apply. Alter or injure is available to you. If your circumstances fit either definition you likely have a valid cause of action.
You may be placing too much emphasis on whether the requirement to follow WH&S laws are an implied or express term of a contract. Without disclosing the circumstances it is not possible to comment on whether the action is within jurisdiction.
I suspect I am not quite understanding your concern despite your well expressed posts, sorry about that.
Rod...
My post above is less about specialist labour law,
and more about basic statutory interpretation.
It's important to remember that WHS breaches are offences. That is, crime.
And no term of a contract will ever be interpreted to allow the evasion of criminal liability,
nor to render lawful acts (or omissions) that are offences.
But it's a bit difficult to make meaningful comment on the OP's question,
without seeing the document(s), knowing which party the OP is,
and what exactly the dispute is.
I'm prepared to answer general questions. But not riddles.
My post above is less about specialist labour law,
and more about basic statutory interpretation.
It's important to remember that WHS breaches are offences. That is, crime.
And no term of a contract will ever be interpreted to allow the evasion of criminal liability,
nor to render lawful acts (or omissions) that are offences.
But it's a bit difficult to make meaningful comment on the OP's question,
without seeing the document(s), knowing which party the OP is,
and what exactly the dispute is.
I'm prepared to answer general questions. But not riddles.
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