NSW Fair Work Australia Implied Contract Terms and Conditions?
- Thread starter Taco Cat
- Start date
This is not the way to think of implied terms in contracts and law.
Implied terms are used to give efficacy to a legal agreement. Laws always trump private agreements. The two while related, are different concepts, at least in my thinking.
Suppose an employer commits an adverse action against an employee in retaliation for the employee making a WH&S complaint.
The employee reads the General Protections benchbook and some case law and decides that in their FW Commission or Federal Circuit Court application the most effective option to claim under section 342 of the FW act is that the adverse action "injured the employee in his or her employment" and not "altered the position of the employee to the employee's prejudice". They believe that the former is a stronger claim than the latter because it denotes legal injury, say, in relation to paragraph X of the state WH&S Act, which the employer has clearly breached.
Perhaps the employee might say "altering the position of the employee to the employee's prejudice seems a bit wishy washy. Courts seems to prefer "injuring the employee" as a compensable breach of law".
Now, suppose the very same adverse action was taken against the employee, but by the principal. The employee (of the independent contractor) duly reads the General Protections benchbook and looks for case law and realises he or she doesn't have a lot to go on in the way of examples or precedents. (The General Protections handbook gives zero examples). They decide that "injures the independent contractor in relation to the terms and conditions of the contract" is a more effective option than "alters the position of the contractor to the independent contractor's prejudice".
The relevant term of the contract is "The contractor will abide by the WH&S procedures at the principal's site".
The employee is confident a commissioner or judge will agree that the employee was following the term of the contract in making the WH&S complaint and the adverse action was in retaliation for doing so.
However, although it is clear that the principal has breached paragraph X of the state WH&S Act, it was not a term of the contract that the principal had to uphold WH&S law nor its own WH&S procedures at the site.
In the scenario that the employee is injured by the employer this is not an issue as the injury includes the breach of paragraph X, but in the scenario that the employee of the independent contractor is injured, it can only be in relation to the terms and conditions of the contract and the contract makes no mention of the principal abiding by state WH&S law.
So, can the employee claim that the principal abiding by WH&S law is an implied term of a services contract containing the term "The contractor will abide by the WH&S procedures at the principal's site"? Otherwise, the respondent could theoretically exploit this loophole.
In the hypothetical example you have given, it is possible. The facts and circumstances in the detail is what determines the outcome.
Those types of clauses are signposts to draw someone’s attention to the need to do something, rather than an operative term. Contracts often have ‘you will abide by the laws of X’ clauses in them. In most instances, including WHS, they’re there to make it clear to someone who may not realise the need to comply, so there’s doubly no excuse - ignorance of the law is already no excuse.
Perhaps another way to look at it is: Can you put in an effective clause which allows you to say the law doesn’t have any effect? If not, the. You don’t need to imply it, as it applies no matter what you do.
Perhaps another way to look at it is: Can you put in an effective clause which allows you to say the law doesn’t have any effect? If not, the. You don’t need to imply it, as it applies no matter what you do.
The problem isn't contract law, nor the WH&S law. The problem is the contorted law of section 342 of the FW Act. A reasonable person may assume that the general protections works as follows: Did the adverse action happen? Yes. Did it happen for a proscribed reason? Yes.
Result - Respondent wins. But this is not true because of the existence of column 2. Column 2, rather than being a set of examples of adverse action instead limits the circumstances in which an adverse action can be proven because it does not state that "breaking a workplace law" is grounds for a proscribed adverse action.
This results in the exact same adverse action experienced by an employee not necessarily being a provable adverse action committed against an employee of an independent contractor by the principal. WH&S legislation goes to great pains to establish that "worker" and "workplace" are the operative terms, not employee, employer, independent contractor and principal. The FW act conspicuously refuses to do this.
It's an actual claim. I want to know if breaching WH&S laws is injuring an employee of an independent contractor in relation to the terms and conditions of a contract that states "the contractor will abide by the WH&S procedures at the principal's site". (Assume the site procedures state that WH&S laws must be followed).
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