Latest News

  • The Mental Health Code of Practice has been launched this week by the Department of Mines, Industry Regulation and Safety, following extensive public consultation. Whilst this is a mandatory resource specifically for those on a FIFO roster within the resources and construction sector, it provides useful guidance more generally to employers with an interest in the mental health of their workforce. To review the Code, click here.
  • The Fair Work Commission has launched an interactive online version of the enterprise agreement benchbook on 9 April 2019. This is a helpful resource which outlines the process adopted when bargaining for and making an enterprise agreement. To view the benchbook, click here.

Notice of Employee Representational Rights: Are there degrees of invalidity?

ALDI Foods Pty Ltd as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association [2019] FCAFC 35

  • In the current case Aldi provided a NERR to certain employees which directed employees to speak to ‘your leader’, instead of ‘your employer’ as expressly stipulated in the proforma NERR in the regulation.
  • Notwithstanding Aldi’s argument that the NERR ‘substantially complied’ with the mandatory notice requirements under the FW Act the Commission held that the notice provisions are ‘tightly regulated’ for a reason and there are no ‘degrees of invalidity’. Aldi’s NERR’s were held to be invalid and the application for any declaratory relief was refused. To read the full decision, click here.

Spotless Facility Services Pty Ltd [2019] FWC 1331

  • Consistent with the Aldi decision, the Fair Work Commission also rejected a proposed enterprise agreement between Spotless and its employees. Spotless argued that it had complied with its obligations under the FW Act and provided all relevant employees with a NERR.  However, Spotless failed to provide a NERR to 15 tradespeople, who were not employed at the time of the issuance of the NERR, notwithstanding that the 15 employees later voted in favour of the Agreement.
  • Commissioner Simpson disagreed with Spotless’ argument that such an exclusion was a ‘minor procedural error’ and held that Spotless had failed to meet the requirements of the FW Act by failing to provide all employees covered with a NERR. To read the full decision, click here.

Nature of dentists’ agreements and assessment of damages

Moffet v Dental Corp Pty Ltd [2019] FCA 344

  • In this case the Federal Court of Australia considered whether the applicant, a dentist, was employed to perform work for Dental Corporation as an employee or as a contractor.
  • Dr Moffet contended that he was an employee of Dental Corporation and sought relief for, amongst other things, annual leave and long service leave under applicable legislation.
  • On balance, the Court determined that Dr Moffet was an independent contractor having regard to some of the following aspects of the relationship:
    • There was no supervision, control or ability to give directions by Dental Corporation to Dr Moffet;
    • Dr Moffet received remuneration calculated by reference to the monthly revenue he generated and was responsible to remit GST;
    • Dr Moffet continued to promote his own dental practice and claimed tax deductions for expenses separate and discrete from those Dental Corporation reimbursed to him;
    • Dr Moffet established and promoted his own consulting business prior to his resignation.
  • To read the full decision, click here.

Maven Dental Group Pty Ltd v S & M England Pty Ltd & Ors [2018] QSC 220 

  • Maven Dental Group Pty Ltd (Maven) had acquired the long standing and profitable dental practice in question as a going concern in February 2015. A Facilities and Administrative Services Agreement (FASA) assured Maven of the services of Dr England, for a period of 6 years.
  • Maven terminated the FASA 5 months into the 6 year term based on a sexual misconduct claim against Dr England and sought to recover its consequential loss for the balance of the term of the FASA.
  • Having determined that the termination of the FASA was lawful and considering ‘loss’ as defined in the FASA, the court undertook an assessment of Maven’s loss.
  • The significant earning capacity of Dr England was noted as was Maven’s attempts to replace Dr England with a dentist of similar earning capacity. The Supreme Court of Queensland awarded Maven damages (loss of profits) of $1.44 million with interest, for the loss of the services of Dr England. To read the full decision, click here.

Contact Us

For further information please contact any of our experienced team members:

Jon Long                               Jenny Edinger                          Natalie Zurita
Practice Leader                  Special Counsel                      Senior Associate

Manuela Lalli                       Natalie Knight
Associate                             Solicitor