Law of Employment in Australia - Assignment Example

Title: Law of Employment in Australia Student’s Name: Instructor’s Name: Course Code and Name: Institution: Date Assignment is due: Explain the constitutional basis for the Fair Work Act 2009 (Clth) with reference to the Australian Constitution and discuss the relationship with Australian common law, with reference to the National Employment Standards. The Fair Work Act 2009 is replacement for the Workplace Relations Act. The infamous Workchoices legislation was based on the same constitutional backing as the Fair Work Act. The Workchoices was a revolutionary legislation within the industrial relations arena since it relied on the Corporations power for its validity in the Australian constitution. One of the previous industrial relation legislations that relied on the section 51xxxv of the constitution was the Conciliation and Arbitration Act. Section 51 xxxv of the constitution states that the Federal Government can come up with laws relating to the ‘conciliation and arbitration for the prevention as well as settlement of all industrial disputes that extend beyond the limits of any given state’ (Stewart, 2009, p.261). However, this had limits in terms of its content since the federal government could act only to prevent or settle disputes and these disputes had to extend beyond the limits of a single state. This had two impacts: first, state industrial systems merely continued to cover large sections of the country’s workforce, who were net to be brought into the country’s federal system. In order to be brought into the Federal Award, each company needed to be named as one of the parties to the dispute or to become a member of the industrial organizations that were party to a dispute. Secondly, since the Commonwealth only had the powers to settle disputes, they could never set binding minimum rates as well as conditions for employees generally. All they could do was set them in the awards, which applied to named companies that were party to the initial dispute. Meanwhile, the FWA, a new body to replace the existing agencies and tribunals, has remained. The National Employment Standards (NES) continues to operate as usual, setting minimum conditions for every national system employee. The system of modern awards for the provision of additional safety net for various employees is still in place, commencing on January 2010. The provision for the making of various multi-enterprise or single-enterprise agreements is still in place, subject to various new obligations for the bargain in new faith, as well as a test that requires each employee to remain better off overall compared to the way they would be under applicable awards. The other constitutional provisions that remain unchanged include the retention of most of the restrictions that exist in matters relating to industrial action, as well as broader access to various unfair dismissal complaints, whereby employees are excluded only when they are dismissed in the course of qualifying period of their service, or if they are able to earn much more over an income threshold and are not covered under any award or agreement. The attempt to require all individual flexibility arrangements that vary the operation of various selected award conditions to be first lodged with the FWA was also rejected. The rejection was based on the need to maintain constitutional basis for the act. However, the FWA remains obliged to carry out research on the use of all such arrangements. With regard to the capacity for various high-income employees to be in agreement not to be under the binding power of an award, it has now been expressly provided that it is possible for this to be arranged before the commencement of employment. However, the high income threshold cannot be reduced from one year to the other. The Fair Work Act 2009, according to Owens & Riley (2009, p.74) also provides a sound constitutional basis for the meaning of both the national system employee and employer to be properly understood. Transition matters between employees and employers, according to Roan (2009, p.401), are addressed in accordance with the provisions that are made in the constitution. On the same light, the ordinary meanings of an employee and an employer are also addressed. Other definitions include the meaning of a full rate of pay, base rate of pay, child of a person, industrial action, ordinary working hours, pieceworker, small business employer, as well as service and continuous service. Even with the Fair Work Act (2009) already in place, the Australian common law contracts of all types of employment will continue regulating nearly all employment relations. Stewart (2009, p.11) notes that this scenario will remain in place, notwithstanding the formation of ‘Modern Awards’ since January 2010 by the Australian Industrial Relations Tribunal. According to Stewart (2009, p.187), common law employment contracts can never provide terms that are less beneficial to an employee in comparison to the national employments standards or even the applicable Modern Award. However, no standards can be enforceable on the basis of contractual terms except in situations where they have been expressly incorporated into the relevant employment contract. Waring (1999, p.253) notes that in majority of common law contracts, the entitlement redundancy becomes inadvertently incorporated or an employer maintains a deliberate redundancy policy. This occurred with the enactment of the Fair Work Act 2009. The legislation also paved way for the Federal Government to set out minimum employment standards for all local council employees of partnerships and sole trades, as well as the state government employees. Moreover, it paved way for the creation of a new body, known as the Australian Fair Pay Commission, whose role is to establish and vary the federal minimum wage, casual pay loadings, as well as all the other wages specified in Awards. However, the Work Choices legislation’s constitutionality had been challenged by several unions and state governments in the High Court in 2006. The decision of the Workplace Relations case formed the basis for future federal governments to start governing industrial arrangements with the use of the Corporations Power, instead of the previously-used Conciliation and Arbitration Power. What is the difference between agency employment and temporary transfer of employment where a third party is injured? Explain with reference to case law and relevant legislation. Since the Work Choices’ reforms of the Howard government took effect on March 27, 2006, the coverage of state and federal industrial laws has tended to depend primarily on the status and nature of the employer. The current position is that in all states, an employer is a ‘national system employer’ if the corporation is a Commonwealth Agency, or if it can be categorized as a ‘constitutional corporation’, that is, a corporation that was formed overseas, or a ‘financial’ or ‘trading’ corporation formed within Australia. An employee who falls into any of these categories is subject to the federal Act with regard to the conditions in which he can manage, engage, or dismiss his employees. The only instance when such an employer is subject to State Law is when ‘non-excluded’ matters are concerned, such as training contracts, workers’ compensation, occupational health and safety, and injury of a third party. Most scholars agree that other than employers and employees, there are other parties within the industrial relations system: the employee organizations, the employer organizations, and the state (Johnstone, 2004, p.18). When a third party is injured, the role of the state comes in through the Workers’ Rehabilitation and Compensation Act, which regulates the compensation and rehabilitation of all those workers who are in the course of executing their employment-related tasks (Wooden 2006, p.101). Employers are expected by the Australian law to behave reasonably towards temporary employees, particularly where a third party is injured. For instance, in McDonald v State of South Australia, after the Australian employment law was reviewed comprehensively, it was concluded that mutual trust and absolute confidence remains a part of the Australian Law in all employment contracts, and as such, needs to be implied in the case before an Australian court (Sappideen, O'Grady, & Warburton, 2009). The plaintiff in this case, Mr. McDonald, formally a school teacher, was the defendant’s employee, that is, the Department of Education and Children’s Services. The plaintiff was teaching at Brighton Secondary School, which is operated by the defendant. The plaintiff claimed that the defendant was in breach of a fundamental term in the employment contract, which entailed the provision of a safe system of work. The plaintiff also pointed out to the implied term in the employment contract, where a breach occurred through engagement in a conduct that damaged or destroyed the mutual trust and confidence between both parties. Ryan (2009, p.14) observes that the Work Choices Act is the most significant piece of legislation for overseeing temporary transfer of employment in the event that a third party is injured. The legislation focuses on the employment relations between corporations and their employees. It establishes the minimum ordinary working hours, entitlements of employment rating, annual leave, parental leave, personal leave, and related entitlements, majority of which had been initially been incorporated in the industrial relations awards. The Work Choices Act also paved way for the establishment of the Australian Fair Play Commission AIRC). It also provided for workplace agreements involving situations where a third party is injured. This act means a lot for labor regulation in Australia, particularly with regard to the federal labor issues that are underpinned by industrial arbitration power. However, notes Ronalds (2009, p.209), in the absence of the act, ‘alternative’ powers were being used in different ways in order to extend the reach of dispute resolution as well as the agreement-making system in case a third party is injured. Similar approaches were also being used to regulate superannuation, extend the reach of dispute resolution, in a manner that was impossible under the arbitration power. In the NSW & Others v Commonwealth [2006] HCA 52, the high court ruled that Work Choices legislation that was held 5:2 was constitutionally valid, and all challenges were rejected. The two main questions that that arose in the high court relate to the corporations’ power. First, the question was on whether it is broad enough to offer support to laws that regulate the relations between various ‘constitutional corporations’ and all their employees. The second question was on whether the power should be ‘read down’ or just limited in order to avoid an overlap or conflict with the existing industrial arbitration power. References Frazer, A, 2006, Labour Law and Productive Decentralisation: Australian Report, Faculty of Law, University of Wollongong. Owens, R & Riley, J 2009, The Law of Work, South Melbourne, OUP. Roan, A T 2009, ‘Australian Workplace Agreements in Practice: The ‘Hard’ and ‘Soft’ Dimensions’, The Journal of Industrial Relations, Vol. 3, No. 43, 2009, pp. 387-401. Ronalds, C 2009, Discrimination Law and Practice, Sydney, The Federation Press, 2009. Ryan, M 2009, ‘Workplace Relations Reform, Prosperity and Fairness,’ Australian Journal of employment, Vol. 2, No. 3, 2009, pp. 11-18. Sappideen, C, O'Grady, P, & Warburton, G, (2009) Macken's Law of Employment; Lawbook Co., Sydney. Sappideen, C, P O'Grady, & Warburton, G 2009, Macken's Law of Employment, Lawbook Co., Sydney. Johnstone, P 2004, Occupational Health and Safety: Law and Practice, Lawbook Co., Sydney. Stewart, A 2009, Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Amendment (State Referrals and Other Measures) Bill 2009, Submission to State Referrals Bill Inquiry, November, 2009. Stewart, A 2009, Stewart's Guide to Employment Law, (2nd ed., The Federation Press, Sydney. Stewart, A 2009, The Work Choices Case: What it Means for Labour Regulation, Flinders University & Piper Alderman, 2009 Constitutional Law Conference. UK Low Pay Commission 2005, National Minimum Wage: Low Pay Commission Report 2005, HMSO, London. Waring, P 1999, ‘Dismissing the Unfair Dismissal Myth’, Australian Bulletin of Labour, Vol. 25, No. 3, 1999, pp. 251-274. Wooden, M 2006, ‘Implications of Work Choices Legislation’ Agenda, Vol. 13, No. 2, 2006, pp. 99-116. Read More