By Adriana Orifici
The High Court has granted the Commonwealth Bank leave to appeal the decision of a majority of the Full Court of the Federal Court in Commonwealth Bank of Australia v Barker  FCAFC 83 (Jacobson and Lander JJ, Jessup J dissenting), which recognised that an implied term of mutual trust and confidence (the Implied Term) exists in employment contracts in Australia. In the special leave application, the issues in dispute were described as giving rise to a ‘test case’.
In Australian employment contracts, terms may be implied in fact or in law.
The Implied Term is implied in law and requires that a party to an employment contract will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Continue reading
By Adriana Orifici
CFMEU v Mammoet Australia Pty Ltd Case Page
The High Court’s final decision before the 2013 federal election concerned the highly political area of industrial relations law. The case, Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd  HCA 36, resulted in a win for the union and striking construction workers. While the then opposition leader was determined to not raise the prospect of industrial reforms during the election campaign, the new Coalition government has since sought to undo industrial initiatives of the past government. This might mean that the High Court’s decision is exposed to legislative reform, with mining lobbyists agitating for the government to bring legislation before parliament to overturn the decision.
In Mammoet the High Court unanimously decided that providing accommodation to striking employees is not a ‘payment’ that is prohibited by s 470(1) of the Fair Work Act 2009 (Cth) (Fair Work Act). This decision is significant because it confines the meaning of s 470(1), which prohibits an employer from making ‘a payment’ to an employee taking protected industrial action in relation to the ‘total duration’ of the action on that day. Moreover the effect of the decision is that if an employer fails to provide a striking employee with non-monetary benefits during a period of protected industrial action, this may constitute adverse action under the Fair Work Act or breach of the terms of a relevant industrial instrument. Continue reading