Australian Workplace Law - Essay Example

Australian Workplace Law A.1 (a) A lawfully obligatory union between two or more people is recognized as a contract. One party presenting an offer to another party does the inception of the contractual process. In regards to employment law, the parties making the agreement constitute of the ‘employer’ and the ‘employee’. Here, the employer presents an offer for a position in the company to the prospective employee. The offer made turns into a legally valid agreement as soon as the offeree puts his assent to such. An advertisement made in the newspaper for job seekers constitutes an ‘invitation to treat’ in behalf of the employer. The prospective employee being chosen and agreement either made verbally or in written constitutes the offer. Here the prospective employee is required to sign a copy of the offer letter and return it back to the employer as a sign of acceptance. The agreement made between the parties to a contract bears monetary consideration wherein the employee is aptly remunerated through compensation packages like wage and salary in lieu of the services offered. In case of minors entering into a contractual agreement it is observed that they can enter into contracts for need of satisfying trifle wants like food and clothing or in taking coaching. However, children below 18 years of age being employed into industries serves as a controversial issue. Farmers in Australia can well employ their children into farming practices and are paid accordingly as justified by the Australian Fair Pay and Conditions Standard for juniors. Persons with mental disability are eligible to enter into a contractual agreement and can obtain the benefit of court in case of being exploited by the employer. The employer is required to ensure that all employees whether disabled or not should clearly understand the documents relating to workplace rules and regulations before accepting such. In regards to the level of compensation paid the Australian Fair Pay and Conditions Standard has enabled special rates for the disabled community. Coercive practices in employment are strictly prohibited and are governed by the Work Choices Law. The termination of employment contracts is governed by the state and federal industrial legislations. (Australian Chamber of Commerce and Industry, 2007; Executive Rights, 2010) b) The Australian workplaces from 1 July 2009 have come under the realm of Fair Work Act 2009. The new system brought about by the Fair Work Act 2009 constitutes the system of enterprise bargaining. The system of arriving at an agreement within the enterprise by the employer and the employees with their bargaining representatives is referred to as ‘Enterprise Bargaining’. Herein, the Fair Work Act 2009 has made enable a set of clear guidelines regarding the happening of the bargaining process and the system of arriving at an agreement. The ‘Enterprise Agreement’ is the replacement made by the Fair Work Act 2009 to the vast set of group or individual agreements. The ‘Enterprise Agreement’ between the employer and employees occur in good faith not influenced by coercive practices. The Fair Work Act 2009 underlines three different types of ‘enterprise agreements’ that can occur within an enterprise. Firstly, it mentions of ‘Single Enterprise Agreement’ that occur between employees and a single employer. However, employers operating in joint-venture corporations or franchises as indicated by the Fair Work practices can also undertake the ‘Single Enterprise Agreement’. Secondly, two or more employers not operating in joint ventures and common ventures and the employees can go for the ‘Multi-Enterprise’ agreement as underlined by the law. Finally, the Fair Work act 2009 states of the ‘Greenfield Agreement’, which can be either single or multiple agreements. These, ‘Greenfield Agreement’ generally occur in perfectly new enterprises such that no new employees have been hired. The enterprise agreements made should contain expiry dates of such. Normally such agreements exist for a period of four years. In making an enterprise agreement, the interested parties constitute of the employer, employees and the bargaining representatives like the trade unions. In regards to making changes in the system of awards, the Fair Work Australia enables the trade unions to apply for gaining authority to bargain for low payments. While giving authorization for such bargaining practices Fair Work Australia rightly judges the effect, it will have in increasing the productivity of the firm. It also looks into the current situational status of the employer and employees and the bargaining team’s strength. (Enterprise Bargaining, 2009, pp.1, 2,5). Therefore some of the main features of enterprise bargaining are “increased protection from unfair dismissal”, “standards for good faith bargaining”, “clear rules governing industrial action”, “rights to request flexible working arrangements” (Australian Library and Information Association, 2010). (b) Industrial action according to the Fair Work Act 2009 can incorporate the following set of industrial activities related to collective bargaining. The employees working in an organization in the light of industrial actions can go on strike. In addition, the employees can refrain from working in the stated manner or even can organize lockouts restraining others to work. Moreover, the industrial action activities taken by the employees also include employees working in a different manner than previously. They can also adopt methods, which disturb the quality and time limits for the work. Employees in addition to strike and lockouts mentioned earlier can go for not performing an accepted task. The employer by the dearth of statutory laws like Fair Work Act 2009 can get protection from industrial action. The employees taking the industrial action need to furnish a written notice to the employer. In regards to the industrial action taken by the employer a three days, notice needs to be given reflecting on the plan of such. Further, the employer prior to taking any industrial action needs to give further notice to the bargaining parties and employees who would be covered under such. In regards to protected industrial action the employer can refrain from paying the employees in the course of such actions. However, for partial industrial action it is left to the employer to decide on whether giving proportional payment for the work done or in giving no payment. In cases of industrial action not supported by the Fair Work Act 2009 not exceeding for hours requires an employer to curtail the payment for four hours. In cases where such actions happen for more than four hours the employer can abstain from making any payment. In regards to the common law of the land, the employer can sue the unions for interfering in the activities of the company. Moreover, the employer can also sue the unions for resorting to coercive practices aimed at injuring or causing damages. Further legislations like the Trade Practices Act 1974 and Fair Work Australia Bill prohibits such Industrial Actions against the employer or the enterprise (Industrial Action, 2009). (c) In regards to termination of employment for employees, the employer needs to observe the following points. Firstly, the employer has to refrain from terminating an employee for being absent to the workplace in a temporary manner. Such absenteeism can occur due to illness or any type of injury. Secondly, if the employee gets involved in trade union activity after the scheduled working hour or during the working hour receiving consent from his employer then the employer cannot terminate him. Thirdly if the employee refrains from earning membership to any trade union he must not be terminated from work. On the contrary, in the fourth case if the employee has been an active member of any trade union the employer cannot detach him from his work. Again in the fifth case if the employee has taken resort to any demonstrations against the alleged practices of the employer he must not be terminated. Sixthly, the employer must not terminate the employee on grounds of any biased practices relating to caste, color, sex and creed. Finally, termination from employment for women employees in regards taking maternity leave is not encouraged. However the employer can terminate a person’s employment if it requires from the conduct of the activities taken in regards to the position concerned. Further, the termination of an employee turns valid if such employee is found to be an active member of a fundamental religious institution. The employer can even end the serving period of an employee if the rank where he belongs expires. Such non-existence of the position of the employee occurs on grounds of prolonged absence of the employee or during the period the employee had taken any maternity and parental leave. (General Workplace Protections, 2009; Unlawful workplace Discrimination, 2009). A.2 a) The rules relating to Rights of Entry are based on the Commonwealth laws relating to workplace. The Commonwealth laws relating to workplace regulate the rights of organizational officials like trade unions while entering the organizational premises. Control on such issues is highly prioritized for the Union officials enter the organizational premises to identify and organize the group members and start holding potential meetings and discussions within such premises. Further the Union officials can also intervene in matters or in areas where they feel that their members are being deprived of safety and health rights. The Organizational Officials consisting of trade union members need to possess a valid entry permit obtained from Fair Work Australia. The Organizational officials are required to undergo a formal training in regards to understanding of their rights and responsibilities. Further, the organizational officials must not be convicts in regards to any national law. (Rights of entry, 2009) i) An Organizational Official on meeting the above requirements can enter the organizational premises. He can exercise his rights in regards to any contradiction observed in the enterprise practices in relation to the Fair Work Act 2009 and other statutes like the Workplace Relations Act 1996. Herein the Trade Union official must locate any difficulty or problem faced by his organization member in regards to such contradictions. Further the Trade Union member needs to highlight the duty of the organization centering on the organizational right of the member. The member so identified must take active part in the operation process. In regards to the entry of the organizational official within the premises of the company a notice needs to be published by the Fair Work Practices to the employer and the affected employee within a fortnight to the entry being taken. The entry so released must contain points like the area to be inspected and the time of entry. It must also contain a declaration on the part of the organizational official on his right to enter the premises. While on the organization’s premises the Union official can exercise his right in evaluating and inspecting any work or process suspected of such contradictions. In that the Union Official can interview some members who express interest to be interviewed and are the employees of the firm. However in regards to the entry of the organizational official it becomes restricted for residential areas. The organizational official can access such records, which are present within the premises or can be obtained from the computer. ii) The organizational official who has earned a permit to enter the premises from the Fair Work Act can exercise his right in holding discussions with a single or with multiple employees. However while engaging such employees to discussion it must be seen that whether they perform within the organization and are the members of the particular trade union who has made the entry. Secondly the employees must not be forcefully engaged in the discussion process. In regards to arranging discussions notice by the organizational official must be furnished to the employer within a fortnight prior to such arrangements. Further the discussions need to take place in the recess hours and not during working hours. iii) While exercising the rights in relation to investigating the contradictions to Operational, Health and Safety standards the organization official can demand the furnishing of employment records or other related documents. The trade union official while making the above investigation can inspect the work of a machinery, process or appliances in use which has earned due suspicion. In the course of the investigation employment records can also be scanned. However if such records are kept secret then the union official has restricted entry into such. (ACTU, 2010) In this regard the work of the Australian Council of Trade Unions can be studied. The Australian Council of Trade Unions is the apex body for Australian Trade Unions and has a number of forty-seven small trade unions operating under it. It represents two million working population in Australia. This Union body has catered to the drafting of the model for a legislation relating to the Operational Health and Safety Standards for the Australian industries. For instance, in the case of Hogan v. Riley, Clark, Byatt and Iqon Pty Ltd, the Federal court went forward to investigate the decisions of the head contractor Iqon Pty who has banned the entry of two CFMEU organizers who went there to investigate the breach of OHS issue on a certain case. The organizers were asked to provide the elaboration on the breach accusation and also give a notice of 24 hours. The employees and the director were blamed for not allowing the entry and delaying the same of the organizers who lawfully should have the right to enter and investigate the issue related to suspected breach of OHS law. They were also authorized to enter without notice. Hence the accusation was placed forward on the basis of s.767(3)(b) of the Workplace Relations Act 1996 (WR Act). (Australian Government, 2010, p.1) b) The representatives chosen for the bargaining process must conduct their activity in good faith. In regards to keeping to good faith the bargaining representatives must fulfill the criteria of attending and taking part in organizational meetings at certain times. The bargaining representatives are also required to be transparent in regards to information sharing activities within certain time periods. However, the level of information to be shared may not contain secret or confidential information. The bargaining representative while acting in good faith must be responsive to the suggestions made by other bargaining functionaries in regards tom the agreements. The bargaining representative must also lend an eye to the proposals made by other bargaining representatives and providing needed responses in due times. The bargaining representative must not stay in isolation but must reflect strong association with other bargaining bodies to carry out the process of collective bargaining effectively. In addition to the above clauses the bargaining representative is also required to continue active bargaining with the other bargaining bodies in regards to the agreement made. However good faith bargaining does not imply that the bargaining representative would submit to make due concessions to other parties while arriving at the agreement needed. In regards to the above fact Fair Work Australia also must observed that giving due assent to any enterprise agreement does not affect the good faith practices of a bargaining representative. However the bargaining representative in the course of such action as regards to good faith bargaining must refrain from pattern bargaining activities. Through pattern bargaining activities the bargaining systems tries to arrive at a common consensus for two separate enterprise agreements by consulting two or more people. However, still the bargaining representatives who need to arrive at a common agreement in a faster manner may resort to such practices. Different kinds of agreements may be made in the process of good faith bargaining. The Fair Work Act 2009 outlines these categories of agreements. First, single enterprise agreement is conducted between one employer and the employees when the agreement is designed. These employers are either joint ventures, franchisees or categorized as single enterprise under the Act. A multi enterprise agreement is carried out between two or more employers. The greenfields agreement is formulated before the employees begin work and in case of an employer or employers who are about to begin something new. When the employers, employees and the bargaining representatives get engaged in the bargaining process for a suggested agreement, the employer needs to notify the employee of his or her right to be represented for bargaining. This is done apart from the case of greenfields agreement. Within 14 days after this notification time, the bargaining is scheduled to begin. This notification should be provided to every employee under the enterprise agreement. Certain requirements are outlined by the Fair Work Act 2009 to be met by the bargaining representative. The representative might be “an employer who is a part of the agreement”, “a trade union who has a member that would be covered by the agreement”, “a trade union that has applied to Fair Work Australia for a low paid authorization that relates to the agreement”, “a person specified in writing as their bargaining representative by either an employer or employee who would be covered by the agreement” (Australian Government, 2010). Normally the trade union is the bargaining representative of the employees. When a party does not bargain in good faith a dispute results. When the bargaining order requirements are breached, the representative may persuade the Fair Work Australia to help in the process of resolution. However certain criterion are judged before the Fair Work takes any step. For instance they have to check if the employers and employees are engaged in the bargaining process for the first time or if there exist in problems in the process of bargaining, the present rules and conditions of employment, if the process of bargaining will assist in addressing the productivity and improvements in delivery of service and the involvement of the bargaining potency of the employers and employees. If satisfied, then the Fair Work Australia can help in arranging some low paid employees and employers and involve them in a multi enterprise agreement. c) The Workplace Rights provisions in the Fair Work Act signify that the employees are free to opt whether to be a part of a union body or not. It entails the employees’ democratic rights. The employees are also free to choose of whether to participate in collective bargaining schemes to arrive at enterprise agreements. They must not be involved into such activities through coercive practices. In regards to granting workplace rights the Fair work Act ensures that the employees are not subjected to dismissal on grounds of supporting a union body’s proposals or not. Again they must not be dismissed on grounds where they have protested against the activities of the employer. The employees must be entitled to leaves on maternal and paternal grounds. Taking of such leaves must not result to due expulsion. Moreover undue discriminatory practices taken by the employer upon the employees must be curbed to provide a healthy working atmosphere. Discriminatory practices tantamount to being bias in relation to sex, class and racist ideologies. Fair work practices also involve the employers to grant wages based on compensation rather than on individual whims. The mothers and injured workers need to be provided with additional care rather than to be disposed off from the workplace. Apart from the aforesaid initiative promoting a fair compensation to the employees constitute another part of catering to workplace rights. The wage structure is revised in an annual basis. The wage revision process taken annually encompasses transparency wherein individuals and organizations can give due suggestions. The revised wage rates get enforced legally and are implemented from first of July every year. In addition to the above clauses the system of modern awards is being introduced to emphasize on better working conditions. The modern awards in addition to the above clauses also encompass overtime and penalty rates and matters related to settlement of work related disputes. The system of Modern Awards does not encompass employees whose total annual earnings cross the $100,000 mark. The modern awards program are generally reviewed four times on a year basis to make them relevant to the working standards. The Australian Government takes special care of persons who do not fall under the category of the modern awards program. Herein, the government has fixed a minimal wage order for the employees not falling under the Modern Awards program. In addition to the above clauses the National Employment Standards aims at providing leverage for working hours and granting of paid leaves to the employees. Further the National Employment Standards also seek to arrive at agreements between the employer and the employee in regard to the pattern of leaves to be taken. The fair work act also aims at bringing in a equilibrium between work and personal life of the employees concerned. in regards to the above cause the Fair Work Act aims at increasing the amount of parent leaves. In addition the Australian government also looks forward to providing equal amenities to the employees of private sector also. The private sector employees of all private firms across borders and operating in small to partnership units are amenable to such benefits given in the state industries (Unlawful workplace Discrimination, 2009; Right of Entry 2009). References 1. Australian Government, (2010), Industry Update, ABCC, available at: http://www.abcc.gov.au/NR/rdonlyres/58412E17-0430-4582-964E-96CA96EFF47E/0/IUMay2010.pdf (accessed on November 4, 2010) 2. Australian Chamber of Commerce and Industry, (2007). Policy Analysis. Available at: http://www.acci.asn.au/text_files/Discussion%20Papers/CommonLawContractsVsAWAsJuly2007.pdf (accessed on November 4, 2010) 3. Executive Rights Employment Lawyers, (2010), Employment Contracts, available at: http://www.executiverights.com.au/employment-contracts/ (accessed on November 4, 2010) 4. Enterprise Bargaining (2009), Fair Work Ombudsman, Australian Government. Available at: www.Fairwork.gov.au (accessed on November 4, 2010) 5. Australian Library and Information Association, (2010), Workplace Legislation, available at: http://www.alia.org.au/employment/workplace.html (accessed on November 4, 2010) 6. Industrial Action, (2009), Fair Work Ombudsman, Australian Government, available at: www.Fairwork.gov.au (accessed on November 4, 2010) 7. General Workplace Protections, (2009), Fair Work Ombudsman, Australian Government, available at: www.Fairwork.gov.au (accessed on November 4, 2010) 8. Unlawful workplace Discrimination, (2009), Fair Work Ombudsman, Australian Government, available at: www.Fairwork.gov.au (accessed on November 4, 2010) 9. Right of Entry (2009), Fair Work Ombudsman, Australian Government, available at: www.Fairwork.gov.au (accessed on November 4, 2010) 10. ACTU (2010), Campaign, available at: http://www.actu.org.au/Campaigns/HealthSafety/default.aspx (accessed on November 4, 2010) 11. ACTU (2010), Health and Safety news, available at: http://www.actu.org.au/Campaigns/HealthSafety/News/default.aspx (accessed on November 4, 2010) Read More