LAWS5555: Employee Relations Law
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Employee Relations Law (LAWS5555)
Added on 2020-04-15
LAWS5555: Employee Relations Law
Employee Relations Law (LAWS5555)
Added on 2020-04-15
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Running head: EMPLOYMENT LAW Employment LawName of the StudentName of the UniversityAuthor Note
EMPLOYMENT LAW1Answer IThe rights, responsibilities and duties of the employers and employees are set out by theemployment contract. All contractual terms in relation to an employment contract has to becarefully analyzed before the contract is entered into by the parties to it. The legal rights of theemployees include right to minimum wages, right to leave and right to healthy and fair workingconditions. The rights and liabilities of employer are determined through analyzing the terms ofan employment contract. The purpose of this part of the paper is to identify the types of terms inan employment contract and analyze how the terms are given meaning by the courts and what aretheir effects on the rights and obligation of the employees and employers. The terms of an employment contract can be divided into expressed terms, incorporatedor implied terms. Express terms of those terms which have been expressly incorporated into theemployment contract. These are the terms which have been agreed upon by the employer andemployee in writing or orally. These are those elements of the employment contract which havebeen mentioned specifically in the contract. Some of the examples of an Express terms in anemployment contract may include redundancy pay, sick pay, hours of work including overtimehours, how much will be the wages, what is the minimum amount of notice period which has tobe served in order to end the contract and leave entitlements. Express terms in a contract are notonly found in the employment contract itself but also in job adverts, employee or staff manual,any letter received from the employer or any document signed by the employee. On the other hand implied terms in an employment contract are those terms which are notwritten or discussed orally however these terms are present and can be applicable to almost allemployment contracts. For instance the employee not stealing from the employer or not leaking
EMPLOYMENT LAW2out the confidential information of the employee is an implied term of the employment contract.Indeed and it is also the duty of the employee to provide the Employees with the safe workingcondition and not direct the employees to do anything which is not legally allowed such asdriving a vehicle which is not insured. Another implied term in the contract of employment isthat of a fiduciary relationship and the idea of mutual confidence and trust between the employeeand the employer. Implied terms can be incorporated into the employment contract even throughpractices and Customs in the industry. This means that the terms which have never beenexpressly agreed by the parties to the contract but overtime such terms have become a part of thecontract. This may include terms like letting the employee leave early on Friday or providingthem with a Christmas Bonus. In order to be incorporated into the contract to practice andCustoms and implied term has to be long standing, automatically received, uninterrupted andexpected or well known. Terms which have been incorporated into the employment contract through collectiveagreements and work rules are known as incorporated terms. Thus Incorporated terms may bethe rules and regulations which have been provided in employee policy or the code of conduct ofthe employer. On occasions expressed or incorporated term may look quite simple however theyprovide Complex issue of construction. Construction is the process through which properlymeaning and scope is provided to the terms of a contract by the courts. An interesting example ofinterpretation difficulties with respect to express terms have been provided by the The Sarfatycase (1992) 28 NSWLR 68. In order to ascertain whether an incorporated terms or a Expressterm form a part of the contract, various circumstances have to be considered such as thesituation in which the document have been brought to the attention of the employees and other
EMPLOYMENT LAW3provisions provided in the policy and procedures of the employer. The court analysis whether thelanguage of such terms are merely aspirational or descriptive or actually promissory in nature togive rise to a contractual obligation. The court also analyzes whether the terms can be said tohave an objective intention of creating a legal relationship between the parties. The issue havebeen discussed by various cases including the Romero case [2014] FCAFC 177; 247 IR 315 aswell as the case of Westpac Banking Corp’n v Wittenberg [2016] FCAFC 33 (esp by BuchananJ at [69] to [115]). If it is found that a contractual term has been incorporated they are providedthe status of an ordinary Express term of the contract by the court. Express terms can be incorporated into the contract through reference of other documentsas being the part of the original contract of employment. For instance these documents may dealwith code of conduct, disciplinary procedure, bonus schemes or leave entitlements. Even if suchreference is not made these documents they are usually interpreted by courts as the part of theoriginal contract of employment. In case where procedures and policy of the employers areconsidered as a part of the employment contract such policy may allow the employee to modifyor alter the terms of the contract periodically. Primary focus is placed by the courts on the preciselanguage used and the circumstances in which the original employment contract has been enteredupon in order to determine the rights and duties of employers and employees to employmentcontract. Express terms can be understood differently by different parties to the contract andtherefore poses a problem for the parties as well as the courts for interpreting them. HoweverExpress terms in a contract are most of the times interpreted by the court in and objective senseand not subjectively. This means that meaning is provided to the express terms based on what areasonable person things about the terms to be and not what the parties to the contract thinkabout the term as discussed in the Sarfaty case.
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