Employment

Klooger v Foodora: FWC delivers decision on employee versus contractor

13 December, 2018

Following a series of decisions by the Fair Work Commission with respect to the validity of Notices of Employee Representational Rights (NERR) that employers have issued to employees, the Federal Government has attempted to take steps to ameliorate some of the requirements of the NERR. Those changes come into effect on 3 April 2017.

The Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2016 (Amending Regulations) will amend the form of the NERR which an employer is required to give employees at the commencement of the enterprise bargaining process. The Amending Regulations commence on 3 April 2017.

Background

The Fair Work Act 2009 (FW Act) sets out a framework for the making of enterprise agreements between employers and employees. Section 173 of the Act provides that an employer must take all reasonable steps to give a NERR to each employee who will be covered by the proposed enterprise agreement. Section 174 of the Act sets out the requirements, in terms of content and form, of the NERR.

Section 174(1A) of the Act specifically requires that the NERR must be in the form prescribed at schedule 2.1 of the Fair Work Regulations 2009 (FW Regulations) and it must contain the content prescribed by the FW Regulations and not any other content.

Changes being introduced

The main change brought about by the Amending Regulations is to the form of the NERR. Specifically, under the heading “Questions?” in the NERR the reference to the Fair Work Commission’s website and Infoline telephone number have been removed. The new content provides that the recipient may contact the Fair Work Ombudsman as well as the employer, bargaining representative or Fair Work Commission.

The changes are set out below:

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<p>Other changes made by the Amending Regulation include omitting the references to the now  repealed sub-section 174(6) of the FW Act in FW Regulation 2.05 and in the NERR set out in Schedule 2.1 and substituting it with a reference to subsection 174(1A) of the FW Act.</p>
<p>The changes made to the NERR requirements will apply only to NERR’s that are given to employees on and from the 3 April 2017. NERR’s issued prior to this 3 April 2017 are not affected by the Amending Regulations.<a href=[1]

Summary

While the amendments are minor and largely technical, it is important for employers to ensure they are using the most up to date version of the NERR.  The Fair Work Commission has consistently found that inconsistencies or variations to the NERR will invalidate the notice.[2]

By way of example, in Transit (NSW) Services Pty Ltd[3]  the Commission found an erroneous reference in the NERR to the “FWC website” instead of the “Fair Work Ombudsmen website” under the heading “Questions?” was invalidated the NERR as it did not comply with the requirements of the FW Regulations.

A finding of invalidity of the NERR by the Commission has led to enterprise agreements not being approved and parties having to recommence the lengthy and costly bargaining process.

Tips for employers:

  1. always use the most recent notice prescribed by the Regulations at Schedule 2.1: see section 174(1A) of the FW Act;
  2. do not vary the prescribed form in any way: see AMOU v Harbour City Ferries Pty Ltd and Orrs (2015) 67 AILR 102-389(6);
  3. to avoid confusion, do not provide additional material at the same time as providing a notice: see Methodist Ladies’ College and IEU [2015] FWC 4050; and
  4. as always, contact McCabes Lawyers if you need any assistance or have any further questions.

[1] Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2016 Part 7-1 Reg 7.01

[2] AMOU v Harbour City Ferries Pty Ltd and Orrs (2015) 67 AILR 102-389(6)

[3] [2016] FWC 2742

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Canadian Court elevates thumbs-up emoji to signature status

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After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. 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The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. 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