Workplace Law

The Changing Nature of Workplace Law Over Time

Workplace law regulates the relationship between employees and employers, ensuring the rights of workers are protected.

• In medieval times there was a feudal system with no recognition of workers rights.

• As a result of the industrial revolution people were required as a labour force for the new factories being built

• During this period the conditions of employment were harsh, the hours long and the work was often dangerous.

• The doctrine of laissez-faire is that employees and employers should be free to make whatever arrangements they wish without government control. Laissez-faire allowed poor conditions to exist because the government did not intervene.

• Tolpuddle martyrs was the first attempt of a trade union. The tolpuddle were sent to Australia as convicts where they then brought these ideas to Australia.

• A number of Factory Acts 1833 were passed to regulate conditions of workers, marking a departure from the doctrine of laissez-faire

• Trade unions began to form and social and community pressures meant that it was no longer accepted that a contract of employment was a bargain between two equal parties.

• From that time the government began to interfere and regulate to promote the welfare of the people.

• Collective bargaining was eventually recognised and the workers’ representatives, the trade union, were bargaining with the employers for improved pay and conditions.

• As an outcome of society’s recognition of the injustice of the industrial revolution towards the working class, people demanded change.

• As the society evolves the law follows in its wake.

• Consequently, workers’ compensation legislation was introduced to make the industrycarry the cost of accidents for injured workers (first OHS Law)

• Over the 19th and 20th century has been an enormous expansion of the role of Government for the greater good of community. There has been in the late 20th and 21st centuries a turning back of the role of government.

• There is now a view that the government must withdraw from some areas and allow individuals to make decisions without regulation (e.g. Work Choice Legislation 2005).

• As a result, there is now a greater role for individual contracts between employers and employees.

Legislation

Workplace Relations Amendment (Work Choices) Act 2005

• New workplace relations system
• Improved employment levels and national economic performance

Fair Work Act 2009

• Replaced the Workplace Relations Act 1996 Cth
• Introduced NES
• Created Fair Work Australia
• Created good faith bargaining and the workplace ombudsman

Contracts

• Recent reforms in OHS has meant that the difference between ‘of and for’ is reduced and employers will be held liable for the actions of anyone on their site.

Of Service

• Employer is vicariously liable

• Has entitlements such as sick leave, holidays leave, workers compensation, minimum

  conditions (wage, hours of work)

• Protected against unfair dismissal

For Service

• Independent contractor
• Conditions of an agreement may include:
  • Contractor providing their own tools and services
  • Has agreements with others also
  • Operate through a business name or company
  • Contractors do not have any ‘entitlements’ listed above
• Are held liable for damage caused during work

Express and Implied Terms

Implied duties

An implied term is a promise that is binding on the parties to the contract, even though the parties have never discussed it. For an employer:

• Provide work
• Pay wages
• Vicariously liable for actions of workers

Expressed duties

An express term is one that is usually spoken or written into a contract.

• Sick leave
• Holiday leave
• Workers compensation
• Superannuation
• Pay rate

Awards and Agreements

Awards are the minimum terms and conditions that must be included in a contract.

• Used to be over 3000 individual awards, now there are 122
• This harmonisation of awards makes award standards more accessible and less convoluted, increasing compliance
• The ​Fair Work Act 2009 ​is the basis for the ongoing creation and variation of modern awards
• Determined by a tribunal or commission as FWC can make, vary and revoke modern awards.
• Must be reviewed every four years
• The award has the force of law and must be complied with and enforced.

Statutory Conditions

• Both state and federal governments have legislated to enforce minimum terms in an employment contract including the hours of work, holiday provisions, leave entitlements and OHS standards.

• Over the last decade there has been a political movement to reduce the role of governments in their relationships.

National Employment Standards

• Maximum weekly hours
• Annual and Long Service Leave
• Notices of termination
• Employer’s responsibiility to provide workers’ compensation for injuries.

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

• Employers who don’t meet record keeping or payslip obligations and can’t give a reasonable excuse will need to disprove wage claims made in court (reverse onus of proof)
• The reverse onus of proof indicates the seriousness of workplace issues and dedication of the government to cracking down
• Strengthened powers to collect evidence in investigations
• Introduce new penalties for giving false or misleading evidence, or hindering investigations
• Also now means that franchisors can be held responsible if their franchisees or subsidiaries don’t follow workplace laws and they knew about it.
• There is a tension of interest between the success of small businesses and the need to oblige to ethical workplace conditions

Regulation of the Workplace

Workplace law regulates the relationship between workers and the people and organisations that employ them.

State and Federal Frameworks

Most employment law is now regulated by the Commonwealth under the Fair Work Act 2009 Cth, after the states agreed to refer their constitutional powers.

• Up to 85% of employees became subject to federal legislation with the passing of Work Choices Act 2005
• This represented a major shift in the separation of power between state and federal governments in industrial relations
• Fair Work Act 2009 has an even greater coverage than Work Choices because from 1 January 2010, all states except WA referred their industrial relations powers to the Commonwealth, creating a new national industrial relations system.

The system does not cover:

• State and public sector
• Some contract workers such as truck or taxi drivers remain under NSW legislation

Federal framework

• Fair Work Commission
• Fair Work Ombudsman Under the Fair Work Act 2009

NSW Framework

• Industrial Relations Commission, under the Industrial Relations Act 1996 NSW

Negotiations between Employers and Employees

• Enterprise bargaining is the process of negotiating generally between employer, employee and their bargaining representative with the goal of making an enterprise agreement.
• Fair Work Act imposes a positive obligation to bargain in good faith
• The objective is to help agreement by encouraging the parties to communicate openly and honestly to focus their negotiation on key issues

Enterprise Agreements

• An enterprise agreement is between on or more national system employers and their employees

• Enterprise agreements are negotiated by the parties through collective bargaining in good faith

• Under the Fair Work Act 2009, an enterprise can mean any kind of business, activity, project or undertaking

  An enterprise agreement must include:

• Terms about the relationship between each employer and the employees

• An expiry date for the agreement

• A dispute settlement procedure, authorising either the Fair Work Commission or someone else

• A flexibility term that allows for the making of individual flexibility agreements for the purpose of meeting the genuine needs of the employer and employees

A consultation term which requires the employer to consult their employees about any major workplace changes, and allows the employees to have representation in that consultation.

Single enterprise agreement

• Made between a single employer and employees
• Single interest employers and employers that are in joint venture or common enterpriseor are related corporations

Multi-enterprise agreement

A multi-enterprise agreement is made between two or more employers and employees.

Greenfields agreement

• Enterprise agreement that is made in relation to a new enterprise of the employer or employers before any employees are employed
• Can be either a single enterprise agreement or a multi-enterprise agreement
• The parties to a greenfields agreement are the employer and one or more relevant employee associations (usually a trade union).

Industrial Action

Industrial action can take a variety of forms. For example, employees may go on strike or impose work bans, employers may lock out their employees.

Lock-out

• Employers closes work premise or refuses to allow employees to work
• Aimed at forcing workers to accept certain conditions

Work-To-Rule/Act Your Wage

• Workers refuse to perform tasks outside the guidelines of their jobs

Pattern Bargaining

• When a bargaining representative seeks common terms in enterprise agreements.
• Illegal unless the trade union is genuinely trying to reach an agreement.

Protected Industrial Action

For industrial action to be lawful it must be protected industrial action. The requirements for taking protected industrial action include:

• An existing requirement has passed its normal expiry date
• The industrial action is in support of a new enterprise agreement
• Fair Work has granted an order for a protected action ballot to be held and the ballot has enddorsed taking action
• The bargaining representatives organising the action must be genuinely trying to reach an agreement

Dispute Resolution Mechanisms

• Under both the Fair Work Act and the Industrial Relations Act 1996 NSW, all awards and agreements must contain dispute resolution procedures
• Consensual forms of dispute resolution include conciliation and mediation and are preferable to arbitration because they’re less expensive, and create a more harmonious and productive workplace
• This allows the parties to see themselves as an integral part of the dispute resolution process rather than as observers

Mediation

• A third party listens to the parties in dispute and helps them reach an agreement
• Mediation may become a part of unofficial workplace dispute settling procedures with a union representative acting as a mediator

Conciliation

• Third party listens to the two parties and makes suggestions in an effort to bring those parties to an agreement
• FWC reported that about 59% of unfair dismissal claims were settled at conciliation

Arbitration

• Arbitration occurs when a third party listens to the parties in dispute and makes a decision on the merits of the case.

Courts and Tribunals

• FWC and the NSW Industrial Relations Commission hears disputes, resolving issues through a process of negotiating and conciliating
• Set conditions and wages
• Fair Work Ombudsman enforces compliance with the Fair Work Act 2009.
• Also helps employees and employers by providing advice.

Fair Work Commission

Independent national workplace relations tribunal

• Replaced Australian Industrial Relations Commission
• Conducts hearings in an inquisitorial manner
• Holds informal conferences
• Determines matters based on written submissions
• Powers relating to dispute resolution, termination employment
• Helps employees and employers bargain in good faith and to make, vary or terminate enterprise agreements
• Deals with applications relating to ending employment including unfair dismissal, unlawful terminations or general protection

Fair Work Ombudsman

• Provides assistance and advice or relevant commonwealth workplace laws
• Monitors compliance
• Investigates any act or practice that may be contrary to workplace laws

Federal Circuit Court

• Matters under the Fair Work Act 2009

• Civil matters under the Work Health and Safety Act 2011

• Is extremely expensive

• WHO legislation was harmonised, as before it was all state-based

• When a union takes illegal action industrial action despite being ordered by FWC to cease the action, the employer may take the matter directly to the Federal Circuit Court

• Fair Work Act also provides for certain matters to be heard as small claim matters (no more than $20 000)

• Allows employees to pursue the recovery of unpaid entitlements

• Proceedings are informal: no lawyer unless granted permission by court, no rules of admissibility of evidence, court can investigate a matter as it sees fit

• If not resolved at conciliation, the FWC must issues a certificate stating the attempts to resolve the dispute have failed for the courts to consider the application

• Courts can order a variety of remedies such as compensation, reinstatement of employees

Trade Unions

• Trade unions represent workers’ interests and they work to achieve better pay and working conditions
• Australian Council of Trade Unions (ACTU) is the peak body for the regulation of unions at the state and federal level
• They have been critical in lobbying for better parental leave, prioritising superannuation, campaigning for increased protection for overseas workers under temporary work visas
• Unions provide members with information, advice and support so that people can be fairly rewarded for their work
• Unions represent over 1.6 million workers in australia
• Today most Australian workers are employed with wages and conditions set by a union-negotiated collective agreement
• Examples include the SDA (Retail, Fast Food, and Warehouse), the ETU (Electrical Trades), ASU (Airline Industry) and the RTBU (Transport Operators).

Union Achievements

• Shorter working hours (the eight hour day)
• Fair pay and better pay (harvesters Case 1907 argued wages needed to be enough to support a family)
• Holidays with pay
• Equal pay for women (up until 1969 it was law that women earned 25% less than men)
• Superannuation for all (law that employers pay and extra 9% above wages)

Safety

Safety in the workplace refers to the worker being provided with a safe place to work, which includes being provided with safe equipment, safe work systems, and the opportunity to access and participate in training.

• Employees have a duty to work with due skill and care and are obliged to follow safety directions
• Employees are also obliged to take reasonable care for health and safety at work under the Occupational Health and Safety Act 2000 NSW

Workplace safety is:

• Very flexible
• Based on a common law duty of care. The determination of what is safe is dependent on what is ‘reasonable’. This should take into account all reasonably foreseeable eventualities.
• Employee rights concerning safety were originally protected under common law. The employee and employer were parties to an employment contract, where one party agreed to exchange their labour for some form of payment. Under this contract of employment, employers had an implied duty of care for the health and safety of their employees.
• This principle was established in Wilsons & Clyde Coal Co v England 1918

New OHS Act

• Ensures employers provide and maintain a safe workplace, facilities etc.
• Ensure the safe use, handling, storage and transport of equipment
• Provide proper information, instruction, training and supervision
• Protect health and safety
• Improve safety outcomes
• Reduce compliance costs
• Improve efficiency for regulator agencies
• Employees are obliged to take reasonable care for health and safety
• The act also provides that in a workplace of twenty or more employees, an occupational health and safety committee must be established if the majority of employees request it
• Union officials may enter workplaces to investigate any suspected breach of occupational health and safety laws

Workcover

• Part of occupational health and safety laws is providing for people who are injured or whose health is adversely affected because of work

• Workers compensation is covered under the WorkCover Scheme

• Workers compensation is where employers insure workers against the possibility of suffering injury arising out of or in the course of employment

• Workers Compensation Act 1987

• Workers compensation can be paid to the families of workers who die because of a work injury

• To be compensated through WorkCover, the injury must be sustained ‘in the course of employment’

• Under common law, negligence imposes upon each individual a duty to take reasonable care not to harm or injure another person, either though their action or omission.

• A relationship existed between the parties - that is the employer and the employee a duty of care

• There was a breach of that duty of care in that the employer did not provide a safe working environment

• There was damage as a result of the breach of duty of care

• The common law case would carry a much higher burden of proof for the employee, however the finding (in the form of a payout) would be much higher.

Discrimination

In comparison to safety, discrimination has hardly been addressed and still remains a huge issue. 80% feel they have been sexually harassed in the workplace.

• - Anti-discrimination Act 1977 NSW
• - Racial Discrimination Act 1975
• - Fair Work Act 2009 Cth
• - Convention on the Elimination of Racial Discrimination

Unlawful discrimination occurs when an employer takes adverse action against a person who is an employee or prospective employee because of race, gender, sexual orientation etc.

Indirect

• The persistent gender pay gap is an economic, political and social issue
• Gender pay gaps do not always signal direct discrimination, but remain problematic for a number of reasons
• They represent poorer outcomes for women in terms of economic and personal freedoms; lost human capital potential and investment; and an impairment on economic growth for a nation looking to remain competitive on a global scale
• Evidence of biased behaviours throughout organisations where men are given preferential treatment in senior management levels
• Differences in remuneration have severe negative impacts on women’s expected career earnings
• Various discrimination laws have been enacted in response to changing social attitudes and values
• Women earn $600K less in a ten year period on average
• Women on average in Key Management Positions earn $100000 less per year than men
• Men have access to greater levels of remuneration beyond their base salaries
• The majority of full-time occupations are male dominated
• The gender pay gap widens as the management level increases

Direct

• Bullying is unwanted, offensive and often frightening behaviour that creates a risk of physical and/or psychological harm
• Employers have a legal duty to protect the health, safety and welfare of their employees
• This duty could include eliminating risks arising from workplace bullying

Legal Response

• The Workplace Gender Equality Act 2012 Cth replaced the Equal Opportunity for Women in the Workplace Act 1999
• The strengthened legislation aims to improve and promote equality for both women and men in the workplace
• Discrimination law has been responsive in introducing anti discrimination measures but not always effective as can be difficult to enforce eg. gender pay gap

Leave

Leave is a fundamental right of employees and can be found within UN Conventions. Minimum leave entitlements are included in all modern awards and enterprise agreements and are protected under both state and federal legislation. The main types of available leave include:

• Annual leave
• Long service leave
• Sick leave
• Community service leave
• Carer’s leave

Australia has recently caught up to world standards by introducing a Federal Paid Leave Scheme, with 18 weeks paid leave for a parent earning less than $150000 per year.

Domestic Violence Leave

• Minister for Women Kelly O’Dwyer introduced the new legislation to parliament on Thursday.
• The bill extends the decision of the Fair Work Commission in March 2018 to grant five days unpaid leave to employees covered by modern awards to all other employees covered by the Fair Work Act.
• “Five days of unpaid is insufficient… The government should, at minimum, propose 10 days of paid leave,” anti-domestic violence advocate Nina Funnell told SBS News.
• Under the NES, employees are entitled to four weeks’ paid annual leave, 10 days’ paid sick/carer’s leave, two days’ approved compassionate leave, and up to 12 months’ unpaid parental leave.
• The Australian Parliament has and is attempting to meet these needs through legislation providing a greater entitlements for working families.

Casuals and Contractors

• Entitled to few, if any, of the NES leave entitlements.
• Neither casuals nor contractors are entitled to any paid leave
• Casual workers are entitled to two days’ unpaid carer’s leave and two days unpaid compassionate leave per occasion, and unpaid community service leave
• Casual loading compensates them for entitlements they do not receive

Termination

Termination of employment may occur as a result of the employee leaving a job of his or her own accord, or the employer asking the employee to leave. Termination of employment may occur as a result of redundancy or dismissal.

Redundancy

• An important issue for many employees is the prospect that their employment could be terminated

• Developments in technology can lead to specific areas of employment disappearing.

• If a business alters its operations, such as by changing a production method or management structure, a number of its employees may find that their position no longer exists.

• Legislation exists to protect workers who are made redundant.

• The Federal and State governments have passed laws ensuring that all redundancy agreements contain minimum standards and must be ‘genuine’.

• The Fair Work Act defines the concept of ‘genuine redundancy’:

• The employer no longer requires the person’s job to be performed by anyone due to operational changes

• The employer complies with any obligation under a modern award or enterprise agreement

• Redeployment of the employee in another position with the organisation is not reasonable

• Redundancies cannot directly arise from poor job performance

• Eg. CSIRO moved to Wagga Wagga

• Redundancy pay will not be available for employees whose period of continuous service is less than 12 months for small business employers

• Fair Entitlements Guarantee Act 2012 Cth protects worker entitlements

Dismissal

• The employer exchanges 2 weeks’ notice and employment for two weeks pay and immediately leaves the workplace

Retirement

• The common age for retirement for women is 60 and 65 for men
• The legal age for retirement if 65.5 and is rising to 67 in 2023
• Individuals may choose to continue working past their retirement age
• Due to the Anti Discrimination Act 1977 NSW, it is no longer possible to force people to retire for their age

Re-Deployment and Re-Training

• Termination without warning can be made legally only in certain circumstances. Under the FWA, a person earning under the high income threshold can be terminated only if they have committed serious misconduct.
• Serious misconduct is defined in the Fair Work Regulations 2009 Cth

Warnings

Warnings can be issued for a variety of reasons:

• Poor performance
• Inappropriate workplace behaviour
• Failure to follow instructions
• Breach of workplace policies

No strict legal obligation requires an employer to issue more than one warning before terminating employment.