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.
Implications
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.
Lisa Heap
Executive Director, AIER