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1880 results in Employment Law

Page 49 of 94

  • Chapter 3 - Introduction to the Fair Work Act

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 71-96

  • Summary

    Introduction

    The opening chapters of this book outlined the basics of the contract of employment – offer and acceptance are required, as are consideration and certainty of terms. Characterising a contract as being one of either employment (contract of service) or a contract for services (independent contractor) is important. The law has ‘special protections’ aimed at preventing the misuse of the independent contractor relationship (in other words, stopping one party engaging others in such a way as to avoid paying the entitlements that the law stipulates for employees). Further, the common law implies various duties into the employment contract – to some extent there is still debate in Australia on the nature and scope of those duties and the protections they deliver.

    Some authors, such as US law professor Stewart Schwab, would argue that the contract of employment is no different from most other contracts and it is not necessary for there to be a sophisticated body of law tailored to governing an employment contract or workplace rela- tionship. However, although the extent of regulation varies from country to country (and the US is at the less interventionist end of the regulatory spectrum), many acknowledge the special nature of the contract of employment: for many, a job is crucial to their identity and is their means of buying food and shelter; being exploited at work can have negative impacts on their health, and depending on the worker's skill set and the economic circumstances of the day, a different job may be difficult to find. And finally, the productivity of the workplace affects society as a whole.

    Debates on legal theory, together with the historical and social settings of Australia, have produced the labour and employment law that we have today. That law draws from both common law and statute; it finds a central place for organised labour and a strong national regulator, yet also aspires to promote flexibility and productivity. It is complex and extensive in nature, and in the last twenty or thirty years has seen enormous change. Our system is unique, though it draws on international concepts. It is largely nationally driven, yet has a history of innovation at the State government level.

  • Chapter 2 - The employment contract: implied terms

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 37-70

  • Summary

    Introduction

    In Chapter 1 we established the nature of a contract and how to distinguish between a contract of employment and an independent contract. The terms of an employment contract set out the various rights and duties of the employer and the employee.

    In addition to the express terms in an employment contract, there are implied terms. These are duties and obligations imposed on the employer and employee under the common law. They are based on public policy or originate from the nature of the contract of employment (for example, between master and servant). Duties implied by common law can be imposed on the employee or the employer or they can be mutual obligations. In Australia at present, there is much debate about that latter group.

    In the 2014 High Court of Australia decision in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 (Barker (2014)) the court did not imply a mutual duty of trust and confidence into the employment relationship flowing from the employer to the employee. As will be seen throughout this chapter, debate as to whether there is a reciprocal duty of good faith continues. Further, issues arise as to the interconnection between work, remuneration and strikes. So it is with those reciprocal duties that this discussion begins.

    No work, no pay – work earns remuneration

    That workers are entitled to earn remuneration, whether it is by way of wages or salary, for work they perform was confirmed by the decision in Automatic Fire Sprinklers Pty Ltd v Watson. The employee's duty to render services and the employer's duty to pay wages may seem straightforward, in that if services are not rendered then wages may not be paid. However, there are several issues arising from this seemingly simple interdependent duty.

    For example, there is a question as to whether it is justified for employees to extract wages, based on the employer's duty to pay wages, during lawful industrial action such as a go-slow or a work-to-rule. Chapter 5 of this book deals with industrial action and limits on payment of salary to workers who strike under the Fair Work Act 2009 (Cth). But there are difficulties in practice.

    In a go-slow, work is performed, but at a very slow rate. In a work-to-rule, work is performed, but only to the letter of the contract of employment.

  • Chapter 6 - The end of the employment relationship

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 211-266

  • Summary

    For many of us, none of these statements is unfamiliar:

    ‘I love my job.’

    ‘I loathe my job’

    ‘You can't do that, it's my job!’

    Yet, as Professor Hugh Collins notes, in Justice in Dismissal, the legal reality is that there is no proprietary interest in a job. We cannot necessarily hold onto a job until a time of our choosing; nor can we pass a job on to whomever we please when we decide it is time to leave. One of the harsh realities of life is that people can and do lose their jobs for all manner of reasons – and sometimes against their wishes.

    That said, Collins also underscores the importance of employment – jobs so often define people's identity – and strong rates of employment add to the economic and social prosperity of the community. It is neither a good thing nor a legally allowable thing for employers to simply terminate an employee's employment on a whim. Indeed, under International Labour Organization (ILO) conventions such as the Convention on Termination of Employment, the notion of preventing unfair dismissal is enshrined. And it must be remembered that employment is governed by a contract of employment (discussed in Chapters 1 and 2 of this book), so the idea of suing for breach of contract may be entertained.

    Australian law governs the circumstances in which employment terminates. It endeavours to provide checks and balances between fairness to employees and economic flexibility for business, and to govern the numerous issues that can arise.

    The Fair Work Act 2009 (Cth) provides remedies for unfair dismissal and is available to many Australian employees whose dismissal was ‘harsh, unjust or unreasonable’. The remedy is not available for job loss caused by genuine redundancy, nor to those whose employment terminates at the end of a genuine fixed-term contract or who are on qualifying periods. (It does, however, apply to some demotions and constructive dismissals – and there is a Small Business Fair Dismissal Code for those working in small business.) Reasons for dismissals governed by this legislation are many and varied, ranging from alleged poor workplace performance through to after-hours misconduct for misuse of social media. This jurisdiction embeds roles for unions as advocates and promotes conciliation, but lawyers may appear by leave and full trials can occur.

  • Chapter 4 - Bargaining, awards and the National Employment Standards

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 97-150

  • Summary

    Overview: some basic concepts

    What is enterprise bargaining?

    Enterprise bargaining is the primary process by which employers and groups of employees collectively negotiate and agree terms and conditions of employment which will apply to their employment relationship.

    There are many forms of enterprise bargaining. An informal discussion between a work team and their supervisor, if it leads to an agreement which is then followed in respect of that work team, can be categorised as enterprise bargaining. However, the term is mostly used to describe a formal process which takes place under either State or Federal industrial relations legislation. For the private sector, the legislation is the Fair Work Act 2009 (Cth).

    The key characteristics of enterprise bargaining, which have changed incrementally over time as legislation has changed but which have remained relatively constant in practical application, are:

  • • Enterprise bargaining occurs between an employer, or in some cases a group of employers, and employees who are within a defined scope. In some cases, the scope can be as broad as the employees in a particular industry. In other cases, the scope can include all of an employer's employees. In other cases, the scope will be limited to particular employees, and in many cases, employees in one particular work location.

  • • There are formal rules which govern how enterprise bargaining can commence (and who has the capacity to commence it).

  • • Once commenced, there are rules which govern the obligations of all parties involved, including formal requirements in respect of administrative processes.

  • • Both the employer and employees, or different sub-groups of the relevant employees, are entitled to be represented by bargaining representatives. Trade unions are generally permitted to be bargaining representatives for employees who are their members or for employees within their eligibility rules who have not joined the union but who have appointed them as bargaining representatives. Under the Fair Work Act unions are in fact the default bargaining representative for their members and will have that role unless the employee appoints a different bargaining representative.

  • Preface

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp li-liii

  • Summary

    The photograph on the front cover of this book was taken by me whilst flying in a Qantas charter flight over the South Pole. To many, there might not be any immediate connection between that photo and labour and employment law. The South Pole is vast and beautiful, but it is largely uninhabited; it is not a thriving hub of either businesses or trade unions.

    But the photograph is a metaphor. The South Pole is, at once, something that has been with us forever, and something that is undergoing great change. There are settlements that have been in existence since Mawson's hut, yet there are vast expanses comprising a new frontier. Terrain that is majestic yet challenging (even threatening) on the ground can be enjoyed for all its magnificence comparatively easily from the sky. There is wildlife and nature so spectacular that it must not be destroyed as the world changes and develops.

    In what some would call a crowded market of good employment or labour texts, this book offers its own perspective and contribution. The book:

  • • analyses the key elements and new developments of both employment and labour law – issues relating to the employment of workers as well as trade union-related issues and new developments such as the responses to the Trade Union Royal Commission and anti-bullying laws;

  • • analyses the crucial emerging issues and new frontiers, such as transnational labour law (including a discussion of Chinese labour standards and Brexit, and their relevance to Australia); immigration and employment; volunteering; as well as the impact of robots and automation;

  • • analyses areas of work that either have not previously been considered in texts or that are important, yet do not regularly appear in labour and employment texts, such as public sector work and ‘The Big Society’; judicial work; and taxation;

  • • provides teaching materials, such as tutorial and group work questions and chapter summaries at the end of chapters; and

  • • has accompanying web materials – so developing areas (such as workplace policy) have a flexible medium with which materials can be presented in a useful and timely way.

Employment, Labour and Industrial Law in Australia
  • Louise Floyd, William Steenson, Amanda Coulthard, Daniel Williams, Anne C. Pickering
  • Published online:
    06 August 2018
    Print publication:
    16 November 2017
  • Employment, Labour and Industrial Law in Australia provides a comprehensive, current and accessible resource for the undergraduate and Juris Doctor student. With a social and political background to the law, this text provides insightful legal analysis underscored by practical business experience, while exploring key principles through a close evaluation of laws and lively discussion of prominent cases. Recognising the multi-faceted nature of the subject, the authors have included content on employment, labour and industrial law in the one text, while also presenting critical topics not often dealt with, namely:current and in-depth analysis of trade union regulationpublic work including the public sector, the judiciary and academicsworkplace health and safety including worker's compensation, bullying, anti-discrimination and taxationemerging issues including topics such as transnational and international employment law, migration and employment, as well as volunteers and work experience.To maintain currency within this rapidly changing area of law, the text has a website which will include updates for any major developments in the field as well as responses to end-of-chapter questions. Written by respected academics and practicing lawyers in the field, this book is a relevant and contemporary guide to this fascinating area of law.

  • Chapter 8 - Specialist legislation

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 328-391

  • Summary

    Workplace health and safety

    Introduction

    In addition to the Fair Work Act 2009 (Cth) and common law, important allied legislation guides and shapes the employment relationship. Broadly speaking, workplace health and safety laws facilitate a safe working environment; anti-discrimination laws aim to ensure that unfair barriers (based on gender, age etc) do not impede the progress of talented people; and taxation law and policy provide obligations to pay money to government, so it has the revenue base to provide services. The links between those objectives and employment is obvious, (even though many of those provisions apply to circumstances beyond the employment relationship, as well). This chapter outlines those laws.

    While the workplace relations system for the private sector has become a national scheme regulated by the Federal government – particularly for corporations and private sector employers and employees – the opposite remains largely true in relation to workplace health and safety (WHS).

    While most Australian jurisdictions have adopted ‘model'WHS provisions by way of enacting complementary legislation from a single template Act and Regulations (referred to as the ‘model Act’ and discussed in further detail below), the system adopted is one of substantially similar legislation rather than national regulation. Contrast this with the approach adopted by the States (exceptWestern Australia) with the referral to the Commonwealth of power to legislate in respect of private sector industrial relations, which has facilitated a federally legislated scheme.

    This s considers the origins and evolution of workplace safety laws; legislative concepts essential to an understanding of the field; safety duties imposed upon parties in the workplace; the compliance and enforcement regime; and the interaction of workplace safety laws with industrial relations and workers’ compensation systems respectively.

    Origins of modern WHS legislation

    Workplace safety legislation in Australia has its origins in the factories legislation of 19thcentury Britain. The industrial revolution, the changes that it brought to the world of work, and particularly the conditions in which the work was performed, were the catalyst for early attempts to regulate safety.

    Amongst the features of these early British attempts were its industry-specific nature, its reliance upon magistrates and other appointed visitors to attend and make reports (and their diligence or otherwise in doing so) and the often-disparate aspects of ‘health’ and ‘welfare’ in the workplace that they sought to regulate.

  • Chapter 7 - Public work

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 267-327

  • Summary

    Introduction

    The legal treatment of work in the public sector is as significant as it is complex. Smith's 1987 work, Public Sector Employment Law, Professor McCarry's 1988 book, Aspects of Public Sector Employment Law, and the more recent Public Sector Employment in the Twenty-First Century, by Professor Pittard and the late Professor Weeks, are all testament to the difficulties and uncertainties lawyers face when studying and practising in this field.

    Smith observes that a major determinant of public sector work is that key terms of work are drawn from statute rather than contract or industrial instrument of the types studied in the previous chapters of this book. To that may be added the fact that public work often entails meeting some public goal – to give frank and fearless advice, if one is a public service employee; to show fierce independence in the meting out of justice, if one is a judge; or to nurture academic freedom, if one is an academic.

    This chapter analyses three key areas of public work:

  • • Public sector employment – The chapter outlines key provisions of the Public Service Act 1999 (Cth) and the separation of powers doctrine; it discusses recent developments in whistleblower laws and public sector investigations and public sector employment theory.

  • • Judicial ‘work’ – The chapter discusses something seldom dealt with – the work of judicial officers. It is extremely important for lawyers, business people and students of law and business to fully appreciate the work of judges, especially given the recent tendency of some populist commentators to align judges with efficiency principles.

  • • Academic employment – The chapter discusses academic freedom in particular, and the fact that funding for universities stems from government.

    • This introduction deliberately uses the term ‘work’ in relation to its treatment of judges and their working conditions. Judges are not employees; they are statutory office-holders. They are appointed under statute and form an independent arm of government – they are not a servant of the elected government of the day.

  • Chapter 1 - Settling the contract: essentials of formation and characterisation

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 1-36

  • Summary

    Introduction

    This book commences with a discussion about the relationship between employer and employee. Whether a contractual relationship pursuant to which a person works for remuneration for the benefit of another is one of employment is of fundamental importance in Australian employment law. This is because many rights and obligations, principally rights under legislation, depend on the work relationship being one of employer and employee as opposed to some other relationship, such as that of principal and independent contractor. This chapter explains how the courts go about determining whether an individual is an employee. It then goes on to examine the difficulties that can arise in identifying an employee's employer where there are complex corporate arrangements, labour hire arrangements and labour supply chains. Consideration is then given to how the law deals with arrangements in which an employer seeks to disguise an employment relationship as an independent contractor relationship; in particular, by examining the sham contracting provisions in the Fair Work Act. The chapter then concludes with a summary of the federal legislation on independent contractors.

    The significance of the employment Relationship

    There are a number of relationships within which work might be performed by one person for the benefit of another for remuneration. Whether the relationship is one of employer and employee is important in determining what rights and obligations, both at common law and pursuant to legislation, are conferred upon the parties. Indeed, many (although, not all) of the rights and obligations that are the focus of this book depend upon determining whether or not the relationship is one of employment.

    Vicarious liability

    At common law, perhaps the most significant remaining reason for determining whether or not the relationship is one of employer and employee is vicarious liability. At common law, an employer will be vicariously liable for the negligent acts of its employee carried out in the course of the employment. By contrast, a principal will generally not be vicariously liable for the negligent acts of an independent contractor that it has engaged to perform work. The distinction between employees and independent contractors remains critical to the ambit of vicarious liability.

  • Chapter 5 - Trade union law and regulation – unions and industrial action

  • Louise Floyd, James Cook University, North Queensland, William Steenson, University of Technology Sydney, Amanda Coulthard, Bond University, Queensland, Daniel Williams, Anne C. Pickering, University of Queensland
  • Book:
    Employment, Labour and Industrial Law in Australia
    Published online:
    06 August 2018
    Print publication:
    16 November 2017, pp 151-210

  • Summary

    Yet what force on earth is weaker than the feeble strength of one, But the union makes us strong.

    (from Solidarity Forever, R Chaplin (1915))

    Introduction

    This chapter deals with the separate but closely related topics of industrial action, unions, and the Royal Commission into Trade Union Governance and Corruption (also referred to as TURC for Trade Union Royal Commission) conducted by the Hon. JD Heydon AC QC throughout 2014 and 2015.

    It considers the forms that industrial action takes, its consequences, and the law as it relates to industrial action, including restrictions and sanctions. It compares Australian law to international law as it relates to principles such as freedom of association.

    Industrial action is a very public manifestation of collective union action and therefore the treatment of these topics in the chapter is closely related.

    The legal status of unions and their regulation at both Federal and State level is also considered, using specific examples – such as the series of problems that beset the Health Services Union in recent times – to illustrate the regulatory regime's powers and challenges.

    Other constraints on union action, including the right of entry regime imposed by legislation, are also considered because, in both legal and practical terms, they impact on union operations.

    In considering TURC, the focus will be on the two major aspects of the Commission's work:

  • (i) the matters dealt with by the Commission in its hearings; and (ii) the law reform recommendations arising from the Commission's work.

    • Before dealing with unions and the regulation of their activities, it is important to have a clear notion of what unions are and what they do. In essence, a union is:

    an organisation of workers or employees who have joined together to achieve common goals. These goals can include seeking higher pay and better working conditions, fighting for job security and protecting the integrity of a trade.

    As the quotation at the beginning of the chapter suggests, the effectiveness of unions, and indeed their fundamental purpose, stems from the notion of collective action – that the actions of the many in support of particular objectives provide greater bargaining power in negotiations and in disputes.

    While their coverage of the workforce has declined, there remain approximately 2 million members of federally registered employee organisations (that is, unions), in addition to those that remain registered under State jurisdictions.

Page 49 of 94