Workplace Law - Assignment Example

Background Whenever a person is employed in the service of another person, it can be seen as a contract under common law even if no documents aresigned. Merely agreeing to work for someone creates a working relationship that is determined by appropriate laws for the employer and the employee. Both parties have duties and rights under a common law agreement. In the case at hand, the employer first took Jane into service without any written documents. The only contract that existed between Jane and TMMS was based on a verbal discussion between the owner and Jane. However following the reorientation of the business, the owner decided to introduce individual contracts that applied to each employee in a “take it or leave it” situation. 1Though the intent of the owner seems to have been to outsource the functions of the employees to them but in offering a “take it or leave it” contractual agreement, the owner has initiated the AWA (Australian Workplace Agreement) laws. Moreover in case that a dispute arises between an employer and an employee in a situation where no written contracts are available, the common law of Australia overrides any derogatory treatment condition already agreed upon. The same principle applies equally well to written contracts and even if employer and employee agree to terms that are derogatory to either party, the resolution of a dispute would be carried out according to Australian common law2. Hence it can be clearly stated that the current situation where Jane and TMMS’s owner Sam were in a contractual relationship, the creation of a dispute would be governed by Australian common law especially if the terms are derogatory to either party. 2. Case Facts Jane was previously employed by Sam, the owner of TMMS from July 2009 under a verbal agreement to this effect. According to this verbal agreement, Jane was supposed to use the insignia of TMMS on her clothing alone but not on her van. Moreover Jane was given a compensatory leave period with pay and could pick up other work as long as Sam’s work was not affected by it. However in 2011, Sam decided to change the rules of employment altogether. In a surprise move he assembled his employees and told them that individual contracts were being doled out. In a one to one session following the assembly, Sam provided his employees with a “take it or leave it” contract that reduced the flexibility of employees by a significant margin. Being forced into a hard bargain, Jane accepted the contract and began working as usual. Around a month ago, Jane was crushed by a car that rolled over her as she was working on it. The extent of the injuries meant that Jane was effectively unable to work for the next six months and would be unable to continue this career line after recovery. Sensing that Jane was unfit for work anymore, Sam immediately terminated the individual contract. 3. Relevant Common Law Sections The “take it or leave it” style of agreements between employers and employees came into being following the passage of the WRA (Workplace Relations Act) of 19963. Under this set of laws the employee and the employer could enter into an individual contract that could override state and federal employment laws as long as both parties agreed to it4. Any contracts raised under the AWA only had to meet only the most minimal of all requirements under the Australian Fair Pay and Conditions Standard. The agreements drafted in this manner need not include any dispute resolution procedures but were not allowed to include any prohibited content5. Within the current case too, there are no specific dispute resolution procedures outlined. However the AWAs were highly controversial because they severely impinged worker’s rights and the ability to bargain collectively 6 7. Based on this and opposition from various quarters, the Workplace Relations Act of 1996 was curtailed in its influence with the passage of the Fair Work Act of 2009 8. Under this new act any new kinds of AWAs were banned from being put into place. Within the context of the current case, the individual contract or AWA was raised in January 2011. This comes into direct confrontation with the Fair Work Act of 2009 that stipulates that “no new AWAs shall be raised” after the act’s commencement on 1st July 2009 9. This renders the AWA raised by the employer Sam, and the employee Jane void in legal terms as it is clearly prohibited by law. Moreover the WRA also provides legal cover to employees from unfair dismissal. Some case laws are presented below to enhance understanding. Victoria v Commonwealth (1996) 187 CLR 416 This case relegated unlawful dismissal of employees because of Australia’s ratification of international labour treaties under the ILO Termination of Employment Convention, 1982 (No. 158) which was ratified by Australia in 1993 as well as the ILO Termination of Employment Recommendation, 1982 (No. 166). This case also held that any dismissals that were “harsh, unjust or unreasonable” were not justified under international law adopted at that time10. However the unfair dismissal clause applies to certain classes of employees which include employees of incorporated employers, Commonwealth public sector employees and employees present within the Commonwealth Territories11. As such employees cannot be removed from service due to temporary illness or injuries, for whistle blowing and for freedom of association. Exclusion under WRA Section 638 WRA Section 638 excludes employees from the unfair dismissal clause who have been engaged for a particular time period or task, 12 employees under probation for up to 3 months, causal employees who have not been regularly employed for 12 months, trainees, employees not employed under “award derived conditions” and seasonal employees 13. 4. Conclusion Given these provisions it is obvious that Jane was employed under an AWA for more than 12 months and so there is little reason for her unfair dismissal. Moreover her injuries also indicate that she cannot be dismissed unlawfully without any compensation offered by the employer as it would be against the Fair Works Act of 2009. Furthermore the employer had all kinds of responsibility to protect the employee from bodily harm during work and a rolling over car indicates lax safety practices. Based on these arguments it is obvious that Jane was unlawfully dismissed and this is not allowable under Australian common law. 5. Bibliography Australian Council of Trade Unions. Future of Work: Industrial Legislation Policy. 2011. http://www.actu.org.au/congress2003/finalpolicies/irlegislation_final.html (accessed October 12, 2011). Australian Government ComLaw. Workplace Relations Regulations 2006. 2011. www.comlaw.gov.au/ComLaw/Management.nsf/lookupindexpagesbyid/IP200613557?OpenDocument (accessed October 12, 2011). Consumer and Employment Protection. Austrlian Workplace Agreement, Rates of Pay. 2005. http://www.parliament.wa.gov.au/pq/qsearch.nsf/0/ad1f9856b771ab3448256ffd007b9fed?OpenDocument (accessed October 12, 2011). Davis, Mark. Revealed: how AWAs strip work rights. 2007. http://www.smh.com.au/news/national/revealed-how-awas-strip-work-rights/2007/04/16/1176696757585.html (accessed October 12, 2011). Health Services Union. A Brief Guide to the Contract of Employment. 2011. http://www.hsuwa.asn.au/-work-rights-mainmenu-49/employment-contract-mainmenu-50 (accessed October 12, 2011). High Court of Australia. Relations Act case" [1996] HCA 56; (1996) 187 CLR 416. 1996. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1996/56.html?query=title%28Victoria%20%20and%20%20Commonwealth%20%28 (accessed October 12, 2011). ILO. Industrial and Employment Relations Department: Australia. July 2006. http://www.ilo.org/public/english/dialogue/ifpdial/info/termination/countries/australia.htm (accessed October 12, 2011). Lucev, Toni. The Axe unto the Root? Unfair Dismissals and Unlawful Terminations Post Work Choices. 2006. http://www.fmc.gov.au/pubs/html/printpage.asp?ref=http://www.fmc.gov.au/pubs/html/work_choices.html (accessed October 12, 2011). Office of Legislative Drafting and Publishing. Fair Work Act of 2009. Act, Canberra: Attorney General's Department, 2009. Schubert, Misha, and Andra Jackson. Unpopular WorkChoices 'brand' dumped in ads. 2007. http://www.theage.com.au/news/national/unpopular-workchoices-brand-dumped-in-ads/2007/05/18/1178995413720.html (accessed October 12, 2011). Schubert, Misha, and Ben Boherty. Thousands stranded on AWAs. 2007. http://www.theage.com.au/articles/2007/05/04/1177788399383.html (accessed October 12, 2011). Stewart, Andrew. “Redefining Employment? Meeting the Challenge of Contract and Agency Labour.” Australian Journal of Labour Law 15, 2002: 235-276. Read More