The New Employment Law in Australia - Essay Example

The New Employment Law Name Institution Date The New Employment Law Introduction The Australian employment law was set up within 1904 with the conciliation and arbitration act. These laws were effective during the industrial period nevertheless by the beginning of the 20th century the system faced new social, political as well as cultural pressures that it was finding hard to accommodate. The Fair Work Act (FWA) 2007 was enacted in order to contain the new pressures regarding the employment relationship and consequently has significantly changed the character of workplace relationships. Basically, the previous employment law did not offer sufficient protection to workers and employees within the employment relations since the old arbitration and conciliation structure was not adequately equipped to tackle the new challenges that emerged in the workforce. As a result, the new social, cultural as well as political aspects came with new challenges on society that challenged the federal government to substitute employment law with the Fair Work Act to efficiently control the employment relations and assist in protecting employers and workers as well (Cooney, 2010). Unfair Dismissal The New Employment Law came with new unfair dismissal laws. The fundamental test for what makes up an unfair dismissal is still the same; whether the dismissal was harsh, unfair or irrational. The most basic change in the Fair Work Act is the removal of the protection that was there under Work Choices to organizations which had up to hundred workers. There are particular protections for small businesses. A small business is an organization that has less than fifteen workers when the worker was fired and this comprises of casual workers employed in a regular basis as well as workers working for an associated entity. For the small businesses, workers cannot bring an unfair dismissal claim during the first year of their employment while for the big business a worker cannot bring a claim during the initial six months of employment. For the small businesses, the Act gives the “Small Business Fair Dismissal Code” which provides the dismissal process with a checklist that employers are supposed to follow. If the employer complies with the checklist, he/she is entitled to seek a finding that the worker was fired fairly and hence head off an unfair dismissal claim at its instigation. Another issue is the earning levels of the worker. In case a worker earns more than $100,000 annually, the employee has no right to bring an unfair dismissal claim (Forsyth, 2009). The procedure of handling unfair dismissal claims has primarily changed. Dismissal claims are brought before Fair Work Act. The Act clearly indicates that the concern is to make sure that the Fair Work Act tackles such disputes fast, informally and in a flexible manner. The importance is on reinstatement and not on monetary compensation. In numerous cases, Fair Work Act will be entitled to proceed to hear an issue on the spot in case the issue successful conciliation of the issue is not possible at first. Legal representation is not encouraged in Fair Work Act and might be declined. A legal representation can help an employer in handling the unfair dismissal issues, for instance advising the dismissal process prior to the termination and also in assisting the employer in conciliation preparation like preparing witness statements and argument outline. In some cases, FWA will permit a lawyer to offer help within a conciliation procedure in case they are satisfied that this has a likelihood of helping in accomplishing a resolution of the issue (Forsyth, 2009). The Fair Work Act carries on an illegal dismissal jurisdiction just like it existed in Work Place Relations Act. Therefore, dismissing a worker for reasons that are considered against the law under the Act will result to an entitlement by workers to bring an illegal dismissal claim before FWA. FWA also expands develops the role of the Fair Work Ombudsman and hence he/she can inspect the business records of an employer and interview personnel and further prosecute violations of the Act. The civil fines are up to $33,000 if discrimination is established to have taken place within the workplace. Basically, an unfair dismissal claim should be filed within fourteen days of termination and an illegal termination claim should be brought within sixty days (Forsyth, 2009). The important issues in the unfair dismissal include: Employers are supposed to make sure that the procedure of disciplining and dismissing workers is documented appropriately and that the documents are taken to FWA to respond to any unfair dismissal or illegal dismissal claim that is brought Even if the small business Fair Dismissal Code is not applicable to an employer, the employers are supposed to ensure that the assumption set out within question six of the Checklist is addressed as an answer to claims of unfair dismissal. Employers are supposed to attend FWA meetings with all the relevant documentation within the case the issue proceeds to a contested arbitration instantly (Saunders, 2009). An example of a case is the Australian case McDonald v State of South Australia, where it was ruled that mutual trust and confidence is an element of Australian law within a contract. The claimant Mr. McDonald was formally a teacher employed by Department of Education and Children's Services (DECS), who was the defendant. The claimant taught at Brighton School run by the defendant. Accordingly, the claimant alleged that the defendant had violated a basic term within his employment contract to offer safe working conditions and an implied term within the contract through engaging his behavior that injured the relationship of mutual trust as well as confidence between the contractual parties (Saunders, 2009). The claimant alleged that he had did not have an option other than terminating the employment since the above violations amounted to a refutation of his employment contract. Eventually, the claimant alleged that he had been constructively dismissed which mean his termination resulted from the defendant breaching the contract. The ruling was that the claimant was entitled to deem his employment contract as having been repudiated and hence he had the right of constructively dismissing himself. The repudiation took place because the defendant breached the contract and this included the breach if the implied term of mutual trust and confidence. Consequently, mutual trust and confidence is an element of Australian law in regard to employment contracts and thus was implied within the case. The court established that the defendant has violated the implied term of mutual trust and confidence and the violation took place for reasons like: the school did not offer the claimant sufficient support, training, risk processes and also the performance of the claimant was not managed, the school did not investigate the complaints of the claimant being harassed by other workers who confiscated his phone, copied his keys and changed his computer access and also the school principal harassed and humiliated the claimant when he complained that he was undergoing victimization and discrimination. The above reasons were used when making the ruling. The ruling shows the care that employers are supposed to act reasonably. The duty of mutual trust and confidence covers a wide range of situations for example, failure to follow set policies and procedures, failing to investigate genuine grievances or exposing workers to dishonest or unsafe or unethical conduct through colleagues (Saunders, 2009). Maternity Leave Changes and Return to Work Under State and Federal equal opportunity legislation, employers have the obligation of ensuring that the worker is not disadvantaged when she takes maternity leave and also to accommodate any reasonable application of a worker for flexible working arrangements. In establishing what is reasonable in regard to a flexible work application the following factors are considered; the tasks carried out by the worker, the form of flexible arrangement requested, the probable length of the arrangement, if there are optional ways of handling the reason for request, the cost to the company and lastly the harm to the worker if the request is declined and potential mutual benefits have been taken into consideration by pertinent courts and tribunals (Hunter, 2010). Entitlement to go back to Previous Position after Maternity Leave In a latest ruling of the Federal Court of Australia, an employer was found to have constructively fired a female worker and discriminated against her when the employer did not give the worker the same job after she retuned from maternity leave. The court established that the worker had been discriminated against basing on sex and pregnancy of the grounds: the employer declined to allow the worker to go to the same position she held before she left on maternity leave, the worker would not have been transferred to another position if she had not gotten pregnant and hence taken maternity leave, and on going back to work from maternity leave, the worker was give job duties that were less significant in the company and this amounted to demotion. The Court’s ruling indicate that employers are obligated to allow workers retuning from maternity leave to go back to the positions they held before the maternity leave. An exemption to this requirement is in case the position is no longer there whereby the workers are supposed to be offered a similar position (Hunter, 2010). Workplace Bullying Bullying within workplace has been there for a long time. Research shows that bullying at workplace is extensive and that it is more common harassment. According to the Law Society of NSW, bullying refers to the irrational and unsuitable workplace behavior which included intimidating behaviors, offends, insults or humiliating of an employee in presence of other workers, customers and which consists of physical or psychological behavior. According to the New Employment Law, bullying is not just limited to workers but it might entail anybody with whom workers of the business come into contact within the course of their duty (Gaze & Stevens, 2011). Bullying behavior is not just limited to workers by it might entail anybody an employee comes into contact with during the work process. Bullying includes rudeness and offensive language, coercive behaviors, mockery, marginalizing or ignoring a person, any form of demeaning behavior and abusing of authority (Evans, 2010). The Consequences of Bullying Different workers react in a different way. Normally, bullying might lead to unnecessary stress, ill health, incapacity to make decisions, inability to work, depression, physical injury and more. Any time bullying happens there is the potential legal action. Legislation, Australian Workplace Agreements, Certified Agreements, Industrial Awards along with the Common Law handle the bullying in workplace. Largely, Industrial, Occupational Health in addition to Safety and Anti- Discrimination Legislation are applicable in this field. Here, bullying can at times entail harassment or discrimination where an individual unreasonably discriminates a person basing on aspects such as sex, pregnancy, religion, race, disabilities or age which results into embarrassing, humiliating, offending or intimidating another person (Evans, 2010). Cashing up Yearly Holidays Another change that is politically controversial is the right that has been given to workers to ask for that up to one week of their yearly holidays be “cashed up” annually. Employers are at liberty to either accept or reject the requests. Nevertheless, the legislation is cautious to make sure that employers cannot in any way pressurize workers to make a request, in particular during wage or salary negotiations. This nevertheless does not imply that employers cannot facilitate cashing up through, for instance introduction of a policy that supports the practice (Marshall, 2010). Transferring Public Holidays The capacity to consent to transfer the observance of a public holiday to another working day has been reinstated in the new employment law. As a result, this will offer employers a larger control over their operational requirements, and will provide the employers as well as workers with more flexibility. For instance, an Australian worker can request for a transfer of Waitangi Day to Australia Day (Marshall, 2010). Medical Certificates In the new employment law, employers are no longer needed to illustrate reasonable grounds to suspect that a sick leave is not valid prior to asking for a medical certificate for less than 3 days’ sick leave. Even though, as employers still are supposed to pay for the employee’s visit to the doctor, there is a likelihood that the employers will just need a evidence in case they have a good reason (Marshall, 2010). Union Access For a time, unions have had wide-ranging rights in accessing workplaces. The unions have to act in a reasonable way, be before the new employment law they were not required to seek permission from the employer. The new employment law has now annulled this. At present, a union is supposed to seek permission from the employer to access the workplace and it is the employer who should not unreasonably decline. However, timeframes are tight; employers are obligated to give a response by the following working day and if access is declined reasons should be given or permission is considered to have been given. Generally, this change will enable the employers to negotiate access terms that are more appropriate to them (Cooney, 2010). Communications during Bargaining The direct communication of an employer to the workers during bargaining is a contentious issue within Australia. The new employment law now stipulates that employers can communicate with workers regarding bargaining and this includes their proposals. Nonetheless, they are supposed to do this in good faith, which implies that they should be careful so as not to violate the privilege (Marshall, 2010). Flexible Hours Parents of children who are not attending to school yet or disabled children less than eighteen years now can request flexible work arrangements and this includes job sharing, changing the working hours or changing job location. Workers should have for a year. On the other hand, employers should give a response within 21 days in writing or can decline only on reasonable business basis. The Fair Work Australia tribunal can arbitrate within any disagreements on the matter. Prior to the new employment law, workers did not have a right to request for flexible hours (Cooney, 2010). Meaning of “Ordinary Pay” Ordinary pay refers to the payment that a worker is entitled to get when he/she takes long service leave for working their usual weekly hours during his/her ordinary time rate of pay. In case of absence of the fixed ordinary time rate of payment for a worker, the ordinary time ray of payment will be considered as the average rate that the worker earns over the preceding one year or five years, whichever is higher (Cooney, 2010). Conclusion Australia employment law has changed significantly. The Australian Federal Government introduced the Fair Work Act 2009 which created a new industrial relations umpire. The key aim of the new employment law is to establish nationally consistent workplace relationship laws for the private sector within Australia. Basically, one of the major aspects of the law is to establish a standardized employment conditions. The contentious issues that have been addressed within the new employment law include, working hours, public holidays, redundancy entitlements, maternity leave and annual leave and such issues. References Chapman, A. (2011). The new national scheme of parental leave payment. Australian Journal of Labor Law. Vol. 12/60-70. Cooney, S. (2010). Time and Money under Work Choices: Understanding the New Workplace Regulations Act. University of New South Wales Law Review. Vol. 5/215-241. Evans, G. (2010). Discrimination by religious schools: Views from the coal face. Melbourne University Law Review. Vol. 34/392-424. Forsyth, A. (2009). The decline and restoration of unfair dismissal rights' in Fair Work. The New Workplace Laws and the Work Choices Legacy. Vol.1/207-228. Gaze, B, & Stevens, C. (2011). Running Risks of Gender Inequity: knowledge transfer policy in Australian higher education. Journal of Education Policy. Vol. 1/19. Hunter, R. (2010). Enforcing Human Rights: An Evaluation of the New Regime. Sydney: Themis Press. Marshall, S. (2010). The evolution of Labor Law in Australia: Measuring the change. Australian Journal of Labor Law. Vol. 23/61-93. Saunders, G. (2009). Access to justice for discrimination complainants: Courts and legal representation. University of New South Wales Law Journal. 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