AIER Newsletter – October 2013
Australian Institute of Employment Rights Inc. – News

The news is ... there is [almost] no news...

Workplace Relations played little part in the recently concluded Federal election, a trend which has continued since the new Abbott Ministry has been sworn in. Former Shadow Minister for Workplace Relations, Tasmanian Senator Eric Abetz has been confirmed as the new Minister, but without the title, having been appointed simply as Minister for Employment.  Luke Hartsuyker MP will be Assistant Minister for Employment.

Prime Minister Tony Abbott has said that he wants slimmed down Ministerial titles and his new Ministry has separated the Employment and Education portfolios. In announcing his new Ministers, the PM said:

“Senator the Hon Eric Abetz as Minister for Employment, Minister Assisting the Prime Minister on the Public Service and Leader of the Government in the Senate will be responsible for reducing impediments to employment growth. In keeping with our pre-election commitments, the Coalition Government will restore the Australian Building and Construction Commission, return the industrial relations pendulum to the sensible centre and re-invigorate Work for the Dole. “

In respect to the new Departmental arrangements, the Prime Minister says that:

“With the unemployment rate at its highest level in four years and with Treasury forecasting that the number of unemployed will rise to around 800,000 by the middle of next year, the Department of Employment will focus on ensuring that labour market programmes and workplace relations policy are working in concert to support job creation and increase workforce participation.”

The Department of Employment will be headed by Renee Leon, with former Department head Lisa Paul going to the Education Department. The new Administrative Arrangements Order says that the new Employment Department’s functions include the following:

“Workplace relations policy development, advocacy and implementation
Promotion of flexible workplace relations policies and practices, including workplace productivity…”

The hundred days

The restoration of the ABCC is one of ‘first 100 days’ policies of the new Government.  Tony Abbott’s campaign launch speech said that “
Within one hundred days, legislation to abolish the carbon tax and to abolish the mining tax will be in the Parliament. The Australian Building and Construction Commission will be running again,…”.

The head of Labor’s building and construction agency [FWBC], resigned shortly after the new Government was sworn in. Director Val Gostencnik resigned after two months in the position, returning to his position as Fair Work Deputy President.

The new Minister has been quiet in his first 10 days as Minister. The Department’s website has not yet been organized and the Senator’s Twitter account has been silent since election night. He was reported to have said following the election that an initial priority would be to tackle “union corruption” and indeed the Prime Minister has announced that in the first sitting fortnight [likely to be in November] he would introduce amendments to the Registered Organisations Act to provide that officials of registered organisations and the organisations themselves would be subject to the same penalties as company officers are under the Corporations Act.

Within six months, the Government intends to commence the Productivity Commission’s review of workplace relations laws.

Small business boost? More contractors?

The Small Business portfolio has been promoted to Cabinet status in the first Abbott Ministry, with Bruce Billston as Minister. The new Minister has reportedly begun discussions with Treasury officials and other Government agencies about their approach to independent contractors.

The Coalition’s Small Business policy says that “Labor has tasked the Fair Work Ombudsman, the Australian Tax Office and the Building Construction Commissioner [sic] to target independent contractors. This will eventually force them into union-controlled enterprise agreements”. It is not clear to AIER how this would occur or why one thing follows the other.
The new Minister’s reported moves have been strongly attacked by the ACTU, which says that regulations around contracting should not be weakened rather tightened further to make sure employees aren’t ripped off and contracting arrangements are genuine.

ACTU President Ged Kearney says that:

“Sham contracting is one of the dirty secrets of the modern Australian workplace. Hiring people as contractors when they are really employees robs them of any job security and the conditions Australian workers should be able to expect, like sick leave and holiday leave. Employers are able to avoid many legal responsibilities.”

Stay tuned…

It appears that the short term agenda of the new government will be directed principally at the activities of unions, especially in the building and construction sector. In the longer term, focus will switch to the outcomes of the Productivity Commission review of industrial relations legislation and the creation of a substantial second term agenda.

For some, this will not be enough, with a strong employer consensus developing in the lead up to the election for more radical and more rapid change – see related story. Until the new Senate from 1st July 2014 is finalized, it is not clear how much and how soon a more radical agenda for workplace change might be implemented if the new Government responds to employer pressure.

SEMINAR: Duty of trust and confidence in employment

AIER, in conjunction with the Victorian Chapter of the Australian Labour Law Association and the Monash Law Faculty is holding an important seminar unpicking the implications for duty of trust and confidence in employment following the decision of the Full Federal Court in the Commonwealth Bank of Australia v Barker. This case is expected to have far-ranging ramifications for employment law.

The seminar brings together two of the counsel representing the CBA and the ACTU in the appeal case – [2013] FCAFC 83 – to discuss the case and answer questions from the audience.

The counsel are:

  • Dr Chris Bleby, SC, South Australian Bar
  • Mr Mark Irving, Victorian Bar
Date:       Wednesday, 23 October 2013
Time:      5.30pm for 5.45pm to 7.15pm
Venue:    Monash University Law Chambers, Marsh Centre, 555 Lonsdale Street, Melbourne

Dr Chris Bleby, SC is a barrister at Hanson Chambers in Adelaide. He practises predominantly in the areas of administrative law and commercial litigation, as well as in constitutional, succession, taxation and employment law. He was trial counsel for the Commonwealth Bank in Barker v Commonwealth Bank of Australia [2012] FCA 942 and junior counsel in the appeal, Commonwealth Bank of Australia v Barker [2013] FCAFC 83.

Mr Mark Irving has been a member of the Victorian Bar for 15 years. He is an Executive member of AIER. He practises principally in the fields of industrial and employment law. He was counsel for the ACTU before the Full Court in Commonwealth Bank of Australia v Barker [2013] FCAFC 83 and junior counsel for the respondents in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2009) 290 ALR 647.

The case

A majority of the Full Federal Court [Justices Lander and Jacobson] has concluded that there is an implied term of mutual trust and confidence in all Australian employment contracts. This is considered by many practitioners to be a major re-shaping of Australian employment law. Justice Jessup disagreed with the majority.

The majority has held that there is implied by law into all Australian employment contracts a term of mutual trust and confidence which can be expressed as a requirement that the employer will not, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

Barker was a long-term employee of the Commonwealth Bank whose position was declared redundant and whose employment was, ultimately, terminated.  The decision at first instance was that the employer had conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee and awarded Barker damages in excess of $300,000.

Although it determined the case on a slightly different basis, the majority on appeal found that the Bank had CBA breached the implied term because it failed to contact Mr Barker about redeployment for a period that was unreasonable. Final damages were increased slightly due to errors in calculation.


The implications of this case are expected to be significant, for both employers and employees.

Come along and talk to key participants in this case to fully understand the ramifications for Australian employers and employees.


The Australian Institute of Employment Rights (AIER) is an independent organisation that seeks to ensure fair and decent workplace rights for all.  Informed by an expert panel of industrial relations practitioners, lawyers and academics, AIER works in the areas of legislation, research, education and advocacy to champion the fundamental rights and responsibilities of employers and workers, and to create positive workplaces.
Copyright © 2013 Australian Institute of Employment Rights Inc., All rights reserved.