Law Extension Committee s4

LAW EXTENSION COMMITTEE SUMMER 2017-18 21 INDUSTRIAL LAW ASSIGNMENT

INSTRUCTIONS

In Industrial Law, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. The assignment will constitute 20% of the final mark in this subject.

Assignments must be submitted by the due date unless an extension has been granted. Extensions need to be requested by email prior to the assignment due date and specific supporting evidence provided. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day. A pass mark is 50%. Assignments that are received more than ten days after the published due date will not be accepted. Please note that students granted an extension must still submit their assignment within ten days of the original assignment due date.

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual Results screen of the LEC Webcampus. Students are responsible for checking their Results screen and ascertaining their eligibility to sit for the examination.

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the Guide to the Presentation and Submission of Assignments available on the LEC Webcampus. Please read this guide carefully before completing and submitting this assignment.

The maximum word length for this assignment is 2000 words (inclusive of all footnotes but not bibliography).

Completed assignments should be lodged through the LEC Webcampus and received by 11:59pm (AEDT) on Tuesday 9 January 2018.

Please download the Assignment Coversheet. The coversheet will be the first page of your assignment. Save it with the name you intend to use for the assignment, and begin your answer on the second page. Make sure you complete the Assignment Coversheet by entering in your Full Name and Address Details.

COMPULSORY ASSIGNMENT

Student to answer 2 out of 3 questions. No question is compulsory.

Question 1:

Thomas is employed by Sandwiches Galore Pty Ltd which operates a chain of sandwich shops throughout NSW as well as providing event catering. His job involves making home deliveries of the company’s products to catering customers and to assist in the central Sydney shop with tasks such as cleaning and receipt of deliveries. His employment is governed by an enterprise

of 4 agreement made under the Fair Work Act 2009 setting minimum wages and conditions of employment.

As part of a restructure to improve operational efficiency, the company tells Thomas and all other delivery workers that their employment is to be terminated forthwith. The employees are paid all amounts due for wages, accrued leave entitlements and pay in lieu of notice and informed that, if they desire, they can be re-engaged as contractors to undertake deliveries.

Thomas is worried he will not be able to get another job, so reluctantly agrees to the new arrangements. Thomas leases a small van and commences work driving the van making deliveries to catering customers of the company. Thomas is required to attend the shop at 6am and be on standby for deliveries until 2pm and to make such deliveries as are assigned to him by the manager of the shop. He wears a uniform bearing the company logo.

Thomas is paid a “standby allowance” for each such shift calculated on an hourly basis plus an additional lump sum amount for each delivery actually made by him during the shift. No tax is deducted from these payments and Thomas is not provided with annual leave or sick leave. On average, Thomas earns income less than he would be entitled to if paid as an employee under the enterprise agreement.

On one occasion, whilst Thomas is at the shop, the manager of the store requests that he assist with unloading deliveries from a supplier. This is one of the tasks that Thomas frequently undertook when he was engaged as an employee. Thomas agrees to assist but in unloading the delivery he negligently operates a trolley and tips a load onto John, another delivery driver. John suffers a broken leg.

The manager immediately terminates Thomas’ delivery contract. Can John recover damages against Thomas or Sandwiches Galore Pty Ltd or both for Thomas’ negligence? What remedies, if any, does Thomas have against Sandwiches Galore Pty Ltd?

Question 2:

Nina is employed as NSW Sales Manager for a company known as Quality Fine China Pty Ltd. The company imports and sells fine china crockery to retailers across Australia. Nina’s salary is approximately $140,000 per year plus compulsory superannuation.

of 4 When she commenced employment, Nina signed a contract of employment specifying that the term of her appointment was 3 years but that the contract could be terminated at any time by either party giving four weeks’ notice in writing. Nina also signed a deed which provided that she agreed not to undertake any work in relation to the retail or wholesale marketing, distribution or sale of household products for a period of 12 months after the end of the employment.

In the course of her work, Nina’s primary role is creating and maintaining relationships with major retailer customers such as Myer, David Jones, Kmart, Coles and Woolworths. Nina also commissions and supervises market research into consumer trends in household products and has knowledge of the sales volumes and customers who purchase the company’s products.

After Nina has been employed for one year, the company decides to appoint another sales manager for NSW. As a result, Nina is informed that her responsibilities will now be limited only to sales to supermarket chains and the other sales manager will be responsible for department stores and high end retailers. Nina complains to the National Manager, but is told that her work has not been good enough. The National Manager starts ringing Nina every day and repeatedly tells her she is hopeless and that her sales figures are unsatisfactory.

Nina complains about this harassment to the human resources department, but nothing is done. Eventually, Nina cannot take it any longer and is forced to see a psychologist. Nina then resigns without giving any notice of her intention to do so. She successfully applies for a job as the acquisitions manager for Myer’s homewares department. The job doesn’t pay as well as her previous position, but is more convenient to Nina’s home and family arrangements.

Quality Fine China Pty Ltd commences proceedings seeking an injunction against Nina starting the new job and sues alleging breach of contract. Will the application for an injunction succeed? What claims, if any, might be available to Nina against her former employer and what remedies would be available to her?

Question 3:

Write a case note on TWO of the following cases:

(i) Westpac Banking Corporation v Wittenberg [2016] FACFC 33; (2016) 242 FCR 505;

(ii) Commonwealth Bank v Barker [2014] HCA 32; (2014) 253 CLR 169;

of 4 (iii) ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53.

Please provide commentary on the factual background to the decision, the history of the litigation, the reasoning of the members of the Court and the significance and implications of the case.