Workplace Law - Case Study Example

Download file to see previous pages Hence all the laws and regulations related to awards, state or federal industrial laws are applicable and can be enforced, in case of such contracts (CCH Australia, 2010). For the purpose of this case study, the contractual true nature of contractual relationship of Jane Jones and TMMS will be studied from the perspective of Common Law, and the various legal issues pertaining to the case will be discussed, by application of principles and facts of the said case. The various legal issues, as pertains to the Common Law, related to this case are listed below: 1. Breach of implied duty of mutual trust and confidence In accordance with the proceedings and decision arrived at by the Supreme Court of Australia, in the McDonald v State of South Australia, it was established that the elements such as mutual trust and confidence are an integral and inevitable part of employment contracts. The judiciary in Australia uses the implied term of trust and confidence in order to create an obligation on the part of the employers so as to instill an interest of fairness. It is described as "an implied obligation of good faith". It was observed in the case of Concut Pty Ltd v Worrel, that "the ordinary relationship of an employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust" (Aras, Crowther, 2010, pp. 517; Brodie, 2010, pp. 166). In this case, TMMS summoned Jane and made sudden changes in the contract, which included terms and conditions which were unfair to her, and did not seek to protect her interests at work. One of the implied rules of common law states that the employees be treated in a fair manner, while the terms and conditions and the abrupt changes made, were both unfair and unjust for Jane. The employer in this case had an implied obligation to treat their employees fairly and be honest and truthful to them. Furthermore, the employer is also required to practice and apply the elements of confidentiality and strive to maintain mutual trust. But in this case, TMMS decided to restructure its organization and did not take their employees into confidence prior to making any changes to their employment terms, and instead added clauses which were unjust and unfair to them. 2. Refusing to sign, negotiate, extend or vary an AWA Under Common Law, neither the employer nor the employee has the right to unilaterally alter the terms and conditions of an employment contract. Any such alteration must be done through mutual discussion and agreement, else it would be deemed illegal. The employer must obtain a valid consent of the employee prior to changing any of the terms of the employment contract and cannot do so just by serving a notice. Furthermore, it has also been stated under the Common Law, that the courts and tribunals will consider an agreement received by the employer, as illegal if the consequence of non-compliance or non-acceptance to sign the renewed contract is dismissal with immediate effect. In such a situation, the courts will deem such changes to the contract / agreement as unfair and adverse to the interest of the employees (Lewis & Sargeant, 2004, pp. 136). In this case, the employer TMMS, not only changed the terms of contract unilaterally, but also failed to discuss or negotiate the newly added terms with the employee. Furthermore, when specifically asked for more time to consider the said changes, TMMS openly stated that it is a “take it or leave it” situation, and implied that refusing to accept the said changes, would automatically result in termination of the contract. Such harsh terms and conditions not only broke the implied rule of mutual trust and ...Download file to see next pagesRead More