Case Analysis: Employment Law, Fair Work Act & Mr. Klooger's Case

This report provides an analysis of employment law in Australia, focusing on the Fair Work Act 2009 (FWA) and its implications for workers' rights. It examines a case involving Mr. Klooger, who was terminated for refusing to hand over control of an encrypted chat group, arguing that this contravenes the FWA. The report discusses key aspects of the FWA, including unfair dismissal, contract law, and intellectual property rights. It highlights that employees are entitled to minimum pay and conditions, protection against unfair dismissal, and the right to discuss workplace conditions. The analysis concludes that Mr. Klooger's actions did not breach any intellectual property rights and that Foodora's actions may be considered unlawful under the FWA, particularly concerning adverse actions and the burden of proof. The report also touches on discrimination and the importance of adhering to minimum wage requirements as per the Fair Work Ombudsman.

Employment Law in Australia
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In Australia, the main law on the regulation of workers' rights is the Fair Work Act
2009 (FWA). The FWA provides the minimum standard of workers' rights, as described in
the National Employment Standards (NES).
The action taken against Mr. Klooger whereby he is fired for refusing to hand over
control of an encrypted chat group contravene the FWA. According to the FWA, before
terminating an employee's contract, it is essential that there is a valid reason for dismissal (eg
poor performance) and the dismissal procedure must be fair. Employees must be given the
reasons for their dismissal as well as the reasonable opportunity to respond to the decision.
An employee who feels that his dismissal was unfair may file an application with the Fair
Work Commission and claim compensation up to a salary of 6 months or $ 64,650
(whichever is less).
Paragraph two focuses on contracts. Under Fair Work Act, contractors are employees
and are entitled to minimum pay and condition. Employees are usually engaged with an
employer when they sign a written employment contract. These contracts can take a variety
of forms, from short, simple documents to more elaborate contracts for executives. As in any
contract, the parties to the contract are generally willing to freely determine the terms and
conditions of the employment contract. An important point to remember here is that contracts
of employment must never provide for less favorable general conditions than those provided
for by the SES. A clause of these employment contracts that contravene the minimum
standards of the NES would simply be inapplicable (Stewart, 2011 p.31). However, for the
case of Foodora, his terms of employment are not clear. It is important to note that most
employees are also protected from "unfair dismissal" under the FWA. These laws apply to an
employee who: works at least 6 months (or 12 months if he works in a company with less
than 15 employees); and earns less than $ 129,300 (gross) per year or is part of an award or
corporate agreement. From the article, it is not clear whether Foodora meets all these

conditions and that is why it is important to determine whether Foodora's contract
arrangement resembles makes Klooger qualify as a full time employee. It is clear that the
salaries of these employees did not reach the minimum legal wage level, and did not receive
sufficient temporary shifts and overtime pay for night, weekend and public holidays. The
three workers were allegedly paid less than $1,620.74 in four weeks. In addition, Foodora
allegedly did not pay the three contributions for the three workers. To understand better, it is
important to define type of employees. Full time employee is one who work 5 days a week,
work 7.6 hours a day, and the boss does not indicate that you are a temporary worker or
contractor, then you are a full-time. Full-time employees enjoy all legally prescribed benefits,
including annual leave and sick leave (Wright 2012 p. 6). Temporary workers is one whose
working hours are irregular, usually based on the hours and days do. Temporary workers do
not have annual leave and sick leave, but the minimum wage is higher than the full-time and
part-time (usually at least 20%). Contractor is one who sign a contract with the company (six
months or one year) (Catanzariti, Byrnes & Latham, 2017 p. 73). Remember, this contract is
valid on the basis of labor laws. If the company wants you to work for them for $8 an hour,
you sign it. In fact, the $8 hour clause in that contract is invalid because it does not meet the
minimum wage in Australia (Pagura, 2011 p.11). Contract workers do not have annual leave
and sick leave, but contract workers usually have a skill, so the salary will be higher than full-
time.
Paragraph 3 reveals that Mr. Klooger and the chat members used the chat to exchange
tips about the job and swap shifts. Getting comparators is the right of employees in Australia.
DDA uses a “comparison test” to determine whether an unfavorable employment behavior is
“because” employees exercise their right to protection (Jessup 2017 p. 6070. This test
compares how the complainant handles, and if he or she is a hypothetical employee without a

disability, how the complainant will be treated. (Shi, 2012 p. 107). In a sense, Australia's use
of comparators is more beneficial to employees than Americans (Blake, 2011 p. 23).
Paragraph four reveals that the action against Mr Klooger was taken after cyclists
started using the group to discuss about pay conditions and to find out what other similar jobs
were paying. Section 341 of the FW Act applies to anyone who includes a complaint or
inquiry under the Workplace Act. The term “workplace rights” of the drafters of the “FW
Act” has a very broad meaning. Article 351 explains that an employer must not take adverse
action because of a person's "race, color, sex, sexual preference, age, physical or mental
disability, marital status, family or caregiver's responsibilities, pregnancy, religion, political
opinion, State extraction or social responsibility", employer or employee's employer origin
"includes "physical or mental disability" may provide significant protection to injured
employees (Bongiorno, 2015 p.97).
Paragraph 5 focuses on confidentiality and intellectual property rights of Foodora.
The amendments to the Intellectual Property Law (improving the level of intellectual
property rights) were passed on April 15, 2012 and became effective on April 15, 2013. This
Act contains Copyright Act 1968, Patent Act 1990, Trademark Act 1995, Plant Breeders'
Rights Act 1994, Industrial Designs Act 2003. The Design Act of 2003 (Federal)
(DesignAct2003) (Cth) raises the level of uniqueness in design registration requirements. The
new threshold is a two-step test. Design can only be registered if it meets both new and
unique requirements. Typically, if the design has been made public before submitting a
design registration application, for example, it has been published on the Internet, the design
is not registrable. Australia's Copyright Act 1968 (Copyright Act 1968) (Cth) protects
copyright. Australia does not have a copyright registration system. The scope of copyright
protection includes original literature, art, music and drama. The length of copyright
protection is the author's life plus 70 years. The “work” defined in the Copyright Act is not

required to be artistic and literary, as long as it is original. In addition to protecting the work,
the Copyright Act also recognizes the copyrights of other types of subject matter, such as
photography, recording, film, and performer rights (Easteal, 2013 p.79). Australian copyright
law also recognizes moral rights and digital rights, such as electronic rights management
information (Electronic Rights Management) and technical protection measures. Computer
programs, like literary works, are usually protected by copyright. Australian copyright law
considers that the copyright of a work created by an employee during employment is owned
by his employer, whereas the copyright of a work created by an independent contractor is
owned by the independent contractor. Clearly, there is no new invention made by creating
telegram group. In other words, creating a telegram group does not fit to be part of
intellectual property (Chapman, 2010 p.11). Mr Klooger did not breach any intellectual
property rights of Foodora because Foodora is not the owner of telegram groups. In addition,
ownership of social network is not classified as intellectual property (Pittard & Naughton
2014 p.91).
Concerning confidentiality, Australian common law states that where the information
is transmitted to the other party in a confidential form, or if the information is passed between
parties with a confidential relationship, the Australian common law requires the recipient of
the information to be obligated not to use or disclose the information without the permission
of the confidential disclosure (Blackett & Trebilcock, 2015 p 93). Usually, in order to achieve
prudence, the parties to the contract will also sign a separate confidentiality agreement or
contract, or keep any information related to the contract confidential as a clause in the
original contract (Costello, Freedland & Oxford University Press 2014 p.89). Confidentiality
obligations do not apply when information is available from public sources or when
information must be disclosed as required by law. Australian privacy laws also provide for
the use, disclosure and storage of personal privacy information.

The Foodara has no right to request Mr Klooger to leave the group because FWA can
consider this unfavourable act (Marin-Guzman, 2018). Article 340 stipulates that if the
lawsuit is “because of” the employee’s workplace rights, the unfavorable act is illegal.
Section 3-1 of the FW Act reverses the usual burden of proof in a way that benefits
employees. The duty of employees is to prove that they have been subjected to unfavorable
behavior and that they have the right to work (Loudon, Mcphail & Wilkinson, 2015 p. 89).
Section 361 of the FW Act reverses the burden of proof and requires employers to prove that
they have not taken adverse action because the employee has exercised his authority (In
Monotti, 2018 p. 67). It is also apparent that there is no violation of confidentiality because
the owners of the group are cyclists. Social networks are just means of violating intellectual
property but they are not intellectual property because their owners include the founders of
WhatsApp, Facebook and Twitter. This means that Foodora cannot claim to own a group.
Paragraph 7 to 9 focuses on the nature of discrimination. It shows that Foodora first
lowered the rates. It also shows that riders were underpaid, injured, racially abused and
threatened. This is against the FWA expectations. In Australia, the FWA law protect
employees and does not allow employers even to impose any form of discrimination
(Marshall & Fenwick 2016 p.38)
Paragraph 10, which focus on breach of intellectual property rights is covered by
intellectual property laws of Australia and from all angles, it is apparent that Mr Klooger did
not breach any intellectual property rights. For example, when Mr Klooger appeared in TV,
he just focuses on the working conditions. He did not reveal any trade secret related to
Foodora. According to Trade Practices Act 1974 (Cth), claims can be made against
companies that are misleading or deceptive, or that may be misleading or deceptive.
Australian common law also provides legal protection for confidential information and trade

secrets in certain circumstances. Exposing the company’s working conditions is not a breach
of trade secret (Floyd, Steenson, Coulthard, Williams & Pickering, 2018 p.17.
Foodora spokeswoman in paragraph 13 revealed that no rider has ever been punished
for expressing an alternative view. However, according to Section 3-1 of the FW Act the
employee does not have to prove that he or she has suffered any compensable harm (Kramer,
2012). Therefore, you should read the unfavorable behavior under the “FW Act”, including
any negative treatments, even if this treatment cannot be quantified. Recent court rulings
have confirmed a broad interpretation of adverse actions. This means that TWU can still held
Foodora accountable and defend the rights of Mr Klooger legally.
The move taken by the TWU to file suit on behalf of Mr Klooger as well as another
Foodora cyclist, Avi Winner, is are rightful and legal because as per the Fair Work
Ombudsman the employees are legally entitled to the minimum wage and the entitlements
applicable to their positions under the fast food industry salary rules, and Foodora pays
insufficient amounts to meet these salary standards and benefits. In fact, Foodora should pay
the three employees full salary and make pension contributions for them.
Paragraph 14 to 19 focuses on the compensation rates. As per the Fair Work
Ombudsman the employees are legally entitled to the minimum wage and the entitlements
applicable to their positions under the fast food industry salary rules, and Foodora pays
insufficient amounts to meet these salary standards and benefits.
Concerning the hourly rate, as presented in paragraph 20 to 24, Foodora is not paying
the workers as per the FWA. The minimum wage in Australia is currently set at $18.29 per
hour before taxes and $695 per week . Employees' salaries cannot be lower than this standard,
even if they agree. As a temporary worker, you can get 25% of the casual loading, which
means that your hourly salary should be 25% higher than the usual hourly wage rate (real-

time salary). This is a compromise, because you can't enjoy annual benefits such as annual
leave or long-service leave as a temporary worker. The Fair Work Committee website
contains a variety of information including salary, benefits, and vacations, and is available in
40 languages. NES, as part of the Fair Work Act, replaced the previous Australian Fair Pay
and Conditions Standard (The Standard) and contains a number of minimum guarantees for
employees, such as notification of staff reduction and payment of severance pay (the
employee must be notified of the forthcoming reduction for four weeks, respectively, for five
weeks if he has reached the age of more than 45 years and has not less than two years of
uninterrupted length of service), in addition , he is entitled to a 16-week severance pay.
The Fair Work Committee not only assesses the fairness of employees being fired, but
also examines how they are fired. This means that even if the employer may have a
reasonable reason to dismiss the employee, if the dismissal itself is procedurally unfair, it
may be considered “harsh, unfair or unreasonable” (Forrester & Griffiths, 2010 p.57). When
considering the procedural fairness, the Fair Work Committee will make decisions based on
three key factors. Firstly, they would want to determine whether employer explained to
employees the details of employment (Williams 2012 p. 15). Second, they would determine
whether employer allowed employees to respond appropriately. Third, they will determine
whether employer considered the employee's response before making the final dismissal
decision. In a word, the employer can prove that he has taken all reasonable steps to solve the
problem before making the dismissal decision (Forsyth, Howe, Gahan & Landau, 2017 p.
337). Before making this decision, it is best for the employer to conduct necessary
conversations and communication with the employee, inform the employee of their reasons in
advance, give the employee an opportunity to respond in writing or verbal, and combine the
employee's personal situation with the situation of the job. Malicious dismissal or negative
confrontation.

In conclusion, Foodora is participating in fraudulent contracts and paying employees
below the legal minimum. Foodora paid less than the wages of the three workers and violated
the contract law to make them mistakenly believe that they were independent contractors, and
they were actually employees. As per the Fair Work Ombudsman the employees are legally
entitled to the minimum wage and the entitlements applicable to their positions under the fast
food industry salary rules, and Foodora pays insufficient amounts to meet these salary
standards and benefits. In fact, Foodora should pay the three employees full salary and make
pension contributions for them.
QUESTION 2
The article entitled ‘Degani Bakery and Cafe outlets underpaid staff, Fair Work
Ombudsman finds’ has a number of employment laws. The first thing to know is Fair Work
Ombudsman. Fair Work Ombudsman is a body that deals precisely with ensuring justice in
the workplace. Fair Work offers free assistance to workers and employers , and is the best
reference point for any doubt or issue in this area. Fair Work has the power to conduct
inspections and enforce labor standards, and for this it is able to compel an employer to
summarize a worker or reward him for the missed pay, etc. So if you suspect or you are sure
that you are not treated rightly in the workplace (for example, you are not paid the right one,
you are not granted benefits that you are entitled to, if you are a victim of discrimination or
abuse) and you want Fair Work to investigate your situation, you can ask for their help. The
office of the reference ombudsman is located in Adelaide, and they only accept requests for
action by post. Obviously in the application you will also have to attach all the documents to
support your position. As an alternative to Fair Work, you can also contact your trade union if
your business requires it.

Paragraph 5, for example, revealed that underpayment and non-payment of penalty
rates was the most common issue at Ombudsman Sandra Parker. Underpayment is not
allowed in Australia. Apart from the single hourly pay that will depend on your contract,
there are some basic rules that apply to everyone. First of all, we need to know that in
Australia there are minimum working conditions, established by law or registered agreements
(= agreement between the employer and the employee who must be approved and registered
with the Fair Work Commission). Australian law, through awards, establishes minimum
wages and minimum employment conditions for each profession and level of profession. Any
pay below the one established by the reference award is illegal. For example, a Level 1 waiter
in a restaurant cannot take less than 17.79 $ + 25% per casual hour. Also, if you work on
weekends and public holidays, you will generally be paid more, as well as, in some cases, by
night shifts or over a certain number of hours per day. All these details, however, are closely
related to the sector of reference, and, in part, also to the state in which you will reside.
According to the 2017-2018 annual report, Australia's New South Wales minimum wage is
$18.29 per hour, or $694.90 per week, and 38 hours per week. Due to the different conditions
of different industries, there are more detailed salary ratio guidance for each industry.
Therefore, employers need to pay attention to the different salary ratios according to the
employee's weekly working hours, the nature of the work, the content of the work, and the
specific working time period. In general: employers not only have to comply with the terms
of the work contract, but many invisible terms that are not written are equally binding on the
employer. For example, an employer must regularly provide a pay slip to an employee. By
following these steps, understanding these salary ratios can help employers avoid
unnecessary troubles, help you plan your employment in the new year ahead of time, and
negotiate with employees who are not up to the standard to settle the solution at the peak of
the business. The task of part-time workers and temporary workers should try to avoid getting

into unnecessary troubles. In fact, the purpose of the Fair Work Committee is to safeguard
labor rights, balance workplace relationships, stabilize markets and the social environment.
Investigation and punishment are tools, not purposes
Concerning issues related to record-keeping, Fair Work Act states that the employees
are supposed to keep records of their salaries and wages. To make sure your employer is
paying you correctly, you have the right to request payroll (payslips). This must clearly state
your data (name, surname, and TFN), the company you work for, the payroll reference
period, the hours worked in that period, the gross hourly pay, any withholding taxes and the
total net pay. At the end of the financial year (June 30th), you have the right to request from
your employer (and for each employer for whom you worked during the previous 12 months)
the Group certificate, which is a document that summarizes your work position for the
previous year. In particular, it will summarize how much you have been paid in gross and
how much tax you have been withheld. This document will be useful for making a
declaration of income. Alternatively, you will need to calculate the two digits through all
payrolls.

References
ABC (2018) Degani Bakery and Cafe outlets underpaid staff, Fair Work Ombudsman finds. 7
Aug 2018, retrieved from: http://www.abc.net.au/news/2018-08-07/degani-bakery-and-cafe-
fair-work-recovers-unpaid-staff-wages/10081780 [viewed 2 September 2018]
Blackett, A, & Trebilcock, A (2015) Research handbook on transnational labour law.
http://www.elgaronline.com/view/9781782549789.xml.
Blake, N 2011, 'Campaign to wind back the Fair Work Act', Australian Nursing Journal, 19,
4, p. 23, Academic Search Complete, EBSCOhost, viewed 2 September 2018.
Bongiorno, F (2015) The eighties: The decade that transformed Australia. Collingwood,
Vic. : Black Inc. Books
Catanzariti, J, Byrnes, M, & Latham, I (2017) Annotated Fair Work Act and related
legislation: 2017. Chatswood, NSW LexisNexis Australia
Chapman, A 2009, 'Protections In Relation To Dismissal: From The Workplace Relations
Act To The Fair Work Act', University Of New South Wales Law Journal, 32, 3, pp. 746-771,
Academic Search Complete, EBSCOhost, viewed 2 September 2018.
Chapman, A 2010, 'New Workplace Laws: What Are The Changes, And How Do They
Operate?', Legaldate, 22, 1, pp. 10-11, Academic Search Complete, EBSCOhost, viewed 2
September 2018.
Costello, C, Freedland, M, & Oxford University Press (2014) Migrants at work: Immigration
and vulnerability in labour law. Oxford: Oxford University Press.
Easteal, P W (2013) Justice Connections. Newcastle upon Tyne, Cambridge Scholars
Publishing. http://search.ebscohost.com/login.aspx?
direct=true&scope=site&db=nlebk&AN=871009.

Floyd, L, Steenson, W M, Coulthard, A, Williams, D, & Pickering, A C (2018) Employment,
labour and industrial law in Australia, Cambridge, United Kingdom : Cambridge University
Press
Forrester, K, & Griffiths, D (2010) Essentials of Law for Health Professionals.
https://nls.ldls.org.uk/welcome.html?ark:/81055/vdc_100052493982.0x000001.
Forsyth, A, Howe, J, Gahan, P, & Landau, I 2017, 'Establishing the Right to Bargain
Collectively in Australia and the UK: Are Majority Support Determinations under Australia's
Fair Work Act a More Effective Form of Union Recognition?', Industrial Law Journal, vol.
46, no. 3, pp. 335-365. Available from: 10.1093/indlaw/dww040. [2 September 2018].
In Monotti, A L (2018) Employment law and intellectual property law. Cheltenham, UK :
Edward Elgar Publishing Limited
Jessup, C 2017, 'Adverse Action Protections Under The Fair Work Act: Fashioning The
Fashionable', Monash University Law Review, 43, 3, pp. 605-618, Academic Search
Complete, EBSCOhost, viewed 2 September 2018.
Kramer, T 2012, 'AIG attacks Fair Work Act for stifling productivity', Ecodate, 26, 2, p. 8,
Academic Search Complete, EBSCOhost, viewed 2 September 2018.
Loudon, R, Mcphail, R, & Wilkinson, A (2015) Introduction to Employment Relations.
Pearson Australia Pty Ltd. http://public.eblib.com/choice/publicfullrecord.aspx?p=5139789.
Marin-Guzman, D (2018), ‘Foodora fires courier for refusing to quit workers' chat group’,
Financial Review. Mar 14 2018, retrieved from: https://www.afr.com/news/policy/industrial-
relations/foodora-fires-courier-for-refusing-to-quit-workers-chat-group-20180314-h0xg33.
[viewed 2 September 2018]
Marshall, S & Fenwick, C F (2016) Labour regulation and development: Socio-legal
perspectives. Northampton, MA : Edward Elgar Pub.

Pagura, I 2011, 'The Fair Work Act 2009 and You', Journal Of The Australian Traditional-
Medicine Society, 17, 3, pp. 161-162, Academic Search Complete, EBSCOhost, viewed 2
September 2018.
Pittard, M J, & Naughton, R (2014) Australian labour and employment law. Chatswood,
N.S.W. LexisNexis Butterworths
Shi, E 2012, 'A Tiger With No Teeth: Genuine Redundancy And Reasonable Redeployment
Under The Fair Work Act', University Of Queensland Law Journal, 31, 1, pp. 101-114,
Academic Search Complete, EBSCOhost, viewed 2 September 2018.
Stewart, A (2011) Stewart's guide to employment law. Annandale, N.S.W., Federation Press.
Williams, L 2012, 'Why Fair Work works well', Eureka Street, 22, 15, pp. 14-16, Academic
Search Complete, EBSCOhost, viewed 2 September 2018.
Wright, S 2012, 'What Have Been The Effects Of The Fair Work Act 2009?', Ecodate, 26, 2,
pp. 5-7, Academic Search Complete, EBSCOhost, viewed 2 September 2018.