A person must not deliberately make a false or misleading representation about:
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]
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.
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]
[1] Butterworths Australian Legal Dictionary, 1997, 754.
[2] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82, 88; cited in Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151 [80].
[4] Explanatory Memorandum to Fair Work Bill 2008 [1398].
[5] Explanatory Memorandum to Fair Work Bill 2008 [1370].
[6] Explanatory Memorandum to Fair Work Bill 2008 [1399].
[7] Derry v Peek (1889) 14 App Case 337, 374; cited in Fenwick v World of Maths [2012] FMCA 131 [51].