Misrepresentations

1. A person must not knowingly or recklessly make a false or misleading representation about:
   1. the workplace rights of another person; or
   2. the exercise, or the effect of the exercise, of a workplace right by another person.
2. Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

A person must not deliberately make a false or misleading representation about:

• the workplace rights of another person, or
• the exercise, or the effect of the exercise, of a workplace right by another person.

Example

A union representative must not advise an employee that they can go on strike for reasons other than protected industrial action.

This does not apply if the person to whom the representation is made would not be expected to rely on it.

A misrepresentation is a representation that does not accord with the true facts (past or present). Only if a discrepancy between the true facts and the represented facts can be shown will a misrepresentation be established.[1]

Most commonly, a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false.[2]

A misrepresentation does not necessarily have to be a ‘statement’. Representations involve a broader concept than statements. As such, a representation may be made by conduct or by silence.[3]

Liability does not depend on evidence that the statement ‘caused’ the person to whom the representation was made to act in a particular way.[4]

An illustrative example

is provided in the Explanatory Memorandum:[5]

Madison is a long-term casual employee of Benny J Enterprises Pty Ltd. Madison is pregnant with her first child and asks her manager about her parental leave entitlement. Madison’s manager tells her that only full-time employees are entitled to parental leave knowing that this is not true. In doing so, the manager will contravene the prohibition in paragraph 345(1)(a).

Moon Enterprises Pty Ltd (Moon Enterprises) would like to enter into a new enterprise agreement with its employees. The manager of Moon Enterprises provides the employees with a document that contains false and misleading statements relating to the terms and effect of the proposed new agreement. In particular, the document contains false statements in relation to pay increases, casual loadings and penalty rates. The misrepresentation made by the manager is in relation to the effect of approving the enterprise agreement and is prohibited under paragraph 345(1)(b).

The section is not contravened if the person to whom the representation was made would not be expected to rely on it.

An illustrative example

is provided in the Explanatory Memorandum:[6]

Peter, Emma, Audrey and Annabelle attend a large end of year party hosted by their employer, Sunny Up Pty Ltd (Sunny Up). During the course of the festivities, the manager of Sunny Up is talking to a group of employees, including Peter, about the project the company is working on that has to be completed in a couple of weeks. Peter says that it’s a tight timeframe and it might not be achievable. The manager laughs and jokes that everyone’s sick leave entitlement will be suspended until the project is completed.

The exception in subclause 345(2) applies in this case because the statement it (sic) was a joke delivered in a social context, meaning it would not be expected that Peter or the others would have relied on it as a true representation of what the employer intended to do.

For a representation to be reckless it must be one made carelessly or indifferent as to its truth.[7]

Conduct amounted to a misrepresentation

Statements made to WorkCover

Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677 (3 September 2012).

The respondent dismissed the applicant after he injured his shoulder at work and made a WorkCover claim. The respondent told a WorkCover inspector that the applicant’s claim was fraudulent because the injury happened at home and not at work.

The Court found the transmission of information to WorkCover was done ‘recklessly, not caring whether the representations be true or false’.

Penalty ordered
The respondent was ordered to pay the applicant $5,000 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the applicant $7,000 for lost wages; and $516 interest. The respondent was ordered to pay a superannuation fund nominated by the applicant $630 for lost superannuation benefits; and $111 interest.

Conduct did NOT amount to a misrepresentation

No workplace right

Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694 (12 July 2013).

The applicant claimed the respondent made a false or misleading representation about his workplace right, being the right to have a ‘thorough investigation’ conducted before being summarily dismissed.

The reference to a ‘thorough investigation’ appeared in the Human Resource Management Plan. However the Human Resource Management Plan had no effect at all because the terms of the collective agreement expressly state that the agreement is ‘intended to cover all matters pertaining to the employment relationship’ to the exclusion of other laws, awards, agreements, custom and practice and like instruments or arrangements.

Since there was no workplace right to a ‘thorough investigation’, no misrepresentation had been made.

Representation not ‘knowingly’ false

Fenwick v World of Maths [2012] FMCA 131 (2 March 2012).

The respondent did not knowingly make a false representation concerning the employment arrangement between himself and the applicant because the respondent believed from its interaction with the ATO that the arrangement was a proper and legitimate arrangement. The fact that the Court’s view differed from the ATO’s view was not to the point.