BSL202 Workplace Law

Lecture 4
Implied duties
• Duties automatically implied by common law
• Some able to be modified by agreement
• Statute may modify duties
• Some reciprocal, mutuality of obligation; e.g. the
wages-work bargain (Automatic Fire Sprinklers v
Watson (1946))
• Some not; e.g. the personal service of the
employee (no delegation)
NO mutual duty of trust &
confidence
• A mutual duty to treat the other party
reasonably and with respect?
• UK authority for duty: Malik v BCC (1998)
• BUT no duty in Australia (CBA v Barker
(2014))
Employer’s duty to provide work?

• No work, no pay (Byrne v AA (1995))

• No general duty to provide work (Collier v
Sunday Referee (1940))
• Exceptional situations when employer has duty:
• Employee reputation: Curro v Beyond
Productions (1993)
• Reduction in earnings: Baumann v Hulton
Press (1952)
• Special skills?: Ramsay v Blackadder (2005),
Mann v CTHC (1981)
Employer’s duty to pay

• If ready & willing to work, a duty to pay

• When performance is incomplete?
• Can stand down, but restricted by FWA 2009
• Suspension of pay unlawful unless statute or other
instrument (award, collective agreement) allows it
• If no work as directed, no pay: Miles v Wakefield
(1987) (e.g industrial action)
• BUT employer can give a waiver of their right to
full performance, then a duty to pay: Welbourn v
APC (1984)
Employer’s duty of care
• Reasonable care to be taken to ensure safety of
employees (Wilsons v Clyde Coal (1938))
• Non-delegable
• Kondis v STA (1984)
• Inadvertence of employees
• McLean v Tedman (1984)
Competent staff
• Adequately trained
• Substance testing (alcohol and drugs)
• CFMEU v Wagstaff Piling (2012)
• Bullying/harassment
• Nationwide News v Naidu (2007)
• Positive action necessary to meet reasonable
care standard
• PKIU v Wilke (1991)
 Safe plant and safe systems
• Well maintained equipment/facilities
• Inspected and tested
• Galea v Bagtrans (2010)
• Safe method of performing work
• Includes all aspects of working, including
• Instructions
• Equipment
• Clothing
• Warnings
• Nicol v Allyacht Spars (1987)
The standard of care
• Reasonable standard: Latimer v AEC (1952)
• The likelihood of risk and its severity is weighed
against the difficulty, inconvenience and costs of
efforts to negate the risk: Wyong Shire Council v
Shirt (1980)
Other duties
• A duty to indemnify: Lister v Romford Ice (1957)
• No duty to provide reference: Spring v guardian
Assurance (1995)
• Duty to provide accommodation where remote
work, where customary: Hamersley Iron v
AMWSU (1990)
• No duty to provide medical care, but a duty to
minimise harm and arrange medical assistance