https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6746.htm

Introduction

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Summary

Question: What happens when an employee is sacked and goes to the union for help but is not a member of that union? Answer: The Union says that it cannot help as he is not a member. Simple.

So, this person joins said union, and requests its assistance in getting his job back. The union can not get the (now member’s) job back but manages to get the ex-employer to pay another two weeks’ pay. Emails are exchanged and end of story. Right. Nope.

The story

In this matter a decision of the High Court, backed up by a Full Court decision is cited by the Commissioner.

The union make overtures to the ex-employer on its (now) member’s behalf seeking reinstatement for the member. The ex-employer says “no”, but is willing to sweeten the pot, by offering an extra two weeks’ pay.

The union conveys this information to the member by email. The union member then agrees by return email to the extra pay. Problem solved? Nope.

The Ex-employee/union member files for unfair dismissal, effectively accusing the union of lying.

The Commissioner was not happy with the applicant’s accusation, stating:

“Having accepted [the union] evidence as to the number of discussions she had with the Applicant, and the content of her discussion, I must necessarily find that the Applicant’s evidence on this matter was not credible. This was reinforced by his unsubstantiated claims as to [the union] motivations. The Applicant’s attempt to besmirch [the union] character without giving her an opportunity to respond to quite a serious allegation does him no credit. It certainly does not cast any doubt over [the union] evidence”.

Consideration

In deciding the matter, the Commissioner went to a High Court decision for guidance, Masters v Cameron, in which it was held that:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

“In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution”.

And a case in the Full Bench of Fair Work Australia confirmed the above decision in Curtis v Darwin City Council:

“Mr Farrell for the Respondent put, and I accept, that the type of agreement entered into in this case is the first type referred to in Masters v Cameron. That is that the Applicant and the Respondent reached an agreement with the intention that the parties be ‘immediately bound’ by those terms. To the extent that the parties intended to have the terms restated in a form ‘more precise but no different in effect’ this step was not completed. This however does not alter the fact that an agreement was reached”.

As such the Commissioner dismissed the matter finding that the claim had no prospects of success.