Plumbing Connection Winter 2022

34 / 84

3 4 PLUMBING CONNECTION Winter 2022
(in particular) will say that as there is
no written employment contract, that
there are no contractual terms and
conditions and to none of the rights
and entitlements and obligations of the
employment relationship apply. This
myth comes up sometimes outside the
employment context, including in the
trades industry but is simply untrue.
Whilst it is in nearly every case
preferable that a written employment
contract does exist, for the sake of
certainty if ever an issue or question or
dispute was to arise, it is by no means
illegal for no written employment to
exist and in no way shape or form does
it mean any of the terms and conditions
implied by the law in any event, do not
apply.
6 This is another very topical
area. That is, that it is illegal or
unlawful discrimination to deny
people certain rights (such as entry to
premises and or the workplace) on the
basis that a person won’t be vaccinated
against COVID. That is, without a
medical exemption which should be in
writing to have any status or any weight.
Vaccine refusal is not a protected
attribute under any workplace or anti-
discrimination legislation, case law or
otherwise (yet).
A case where an employee recently
won a case in the area (CFMMEU and
Matthew Howard v Mt Arthur Coal Pty
ltd T/A Mt Arthur Coal [2021] FWCFB
6059) of vaccine mandates focused not
on the unlawful discrimination issue per
se but more on the lack of consultation
by BHP with the affected employee.
Readers should not glean from this case
that vaccine mandated are unlawful or
unreasonable and will be struck down
in other cases. The finding by the Full
Bench of the Fair Work Commission
is confined to the particular facts and
the Commission even said among its
other reasons, that vaccine mandates
are generally reasonable and are in
most cases directed to a logical and
understandable basis.
So, there you have it, six commonly
heard of employment law myths in the
trades (and indeed other industries too)
industry. The lesson is that talk over
or around the water cooler so to speak
about issues such as these is very often
best ignored. The number of times I’ve
had a client say that someone told me
such and such, but that what is being
said is untrue is quite astounding. It
is best to go to expert advice if such
issues arise and there is always help
available, it is often just a matter of
searching (or dare we say it, Google
searching).
Paul Cott LLB (Hons), Grad.
Dip. Legal Practice, LLM,
is a Principal Lawyer with
Law on Lydiard, Victoria,
focusing on building and
construction litigation. Visit
Want one software
that can do it all?
Service. Project. Maintenance.
EVERY field service workflow covered.
1300 139 467
LEGAL MATTERS - PAUL COTT