Procedural Steps under the Fair Work Act - Macquarie TAFE - Assignment Example

Employment Law Student’s Name: Code + Course name Professor’s name University City, State Date Question 1: Enterprise Agreements Procedural Steps under the Fair Work Act Macquarie TAFE should be aware that the trade union is a proper bargaining representative for its employees that seek to obtain a 10% pay rise (Fair Work Ombudsman 2017). The fact that the University has already commenced negotiations with its academic staff coupled with the interest from the trade union for a bargaining period implies that the union is ready to take an industrial action in the event that the University fails to reach an amicable agreement with its staff. Most importantly, the University should understand that the trade union stands in as the default bargaining representative for its employees in the event that it fails to reach an agreement with its staff. In order to initiate a protected industrial action on the part of the trade union, the first action of the union is to apply for a protected action ballot order to the Fair Work Commission. However, Macquarie TAFE should issue the notice of representational rights to its staffs as a prerequisite for the union to take an industrial action. The application contains two main aspects of the industrial action. The first aspect is the group of employees that the union intends to represent (Fair Work Ombudsman 2017). In this case, the union would specify the academic staffs of the University as the represented group of employees. The second aspect is the actual details of the industrial action that the union has decided to propose. In this case, the trade union would include the 10% pay rise in the industrial action having reached an agreement with the employees of the University. In filing the application, the union would issue a copy of the application to the employer and another copy to the proposed ballot agent. The ballot agent refers to the party that will be responsible for conducting the ballot (Fair Work Commission 2017). In most cases, the Australian Electoral Commission will be the party responsible for conducting the ballot. The union presents the copy to the proposed ballot agent within 24 hours following the application. Following the submission of the application, it is the responsibility of the Fair Work Commission to consider the application and determine whether the application meets the requirements stipulated in the Fair Work Act of 2009 as a protected industrial action (Fair Work Ombudsman 2017). After ascertaining that the application meets the requirements, the Fair Work Commission issues a protected action ballot order. The commission issues the order to the employee, the ballot agent, and the applicant. Protected action ballots present employees with the opportunity to vote their decision to either initiate or not initiate a protected industrial action. Before the commencement of the ballot process, the ballot agent prepares a list of eligible voters that should take part in the protected action ballot order. According to the case, the employees of the organization represented by the union and covered by the enterprise agreement are the eligible voters. Requirements The first requirement states that the industrial action should be an action taken by the trade union or employees with the objective of supporting a claims or claims associated with an enterprise agreement (Fair Work Ombudsman 2017). The action responds to the additional and common requirements for protection. One of the requirements is the need for the employees or the representative union failing to take action before the industrial agreement attains its nominal expiry date. In this case, the bargaining period presents the duration within which the union should not resort to an industrial action against the employer. However, the union should only implement the industrial action in the event that the University fails to respond to the needs of its employees within the bargaining period. The other requirement for a protected industrial action is the evidence of the existence of genuine efforts to try to reach an agreement on both parties. The fact that the employer and employees have already initiated the bargaining process indicates the genuine efforts of both parties to try to reach an agreement over the issue at hand. It is also imperative that a protected industrial action should address the requirements of the notice. For instance, it is mandatory that the industrial action should have a direct relationship with the questions indicated in the ballot application order. It is also imperative that at least half of the employees should vote for the application in the quest to ascertain the protection of the industrial action. Apart from the mere act of voting for the order, more than 50% of the employees of the organization have to approve the order by voting in its favor to guarantee the protection of the industrial action. Finally, the industrial action should commence within thirty days following the declaration of the ballot results. However, the Fair Work Commission has the legislative authority to extend the deadline (Fair Work Ombudsman 2017). The other important aspect that the administration of Macquarie TAFE needs to understand concerning the industrial action is the fact that the employer should have a written notice before the issuance of the industrial action (Fair Work Ombudsman 2017). Since the action does not respond to an industrial action implemented by the employer, employees should give a three-day notice to the employer regarding the planned industrial action. However, the duration could be much longer than three days in the event that the protected ballot order dictates a longer duration. The University should also understand about the possibility of terminating or suspending an industrial action. It is the initiative of the Fair Work Commission to terminate or suspend an industrial action. However, several instances could also result in the termination or suspension of the industrial action. One of the instances is the decision of the trade union that stands in as the bargaining representative to apply for the termination or suspension of the action. The Minister for Employment also has the mandate to suspend or terminate an industrial action. Moreover, the Minister of a Territory or State can also terminate or suspend a protected industrial action in the event of the referral of particular industrial relations powers. Several reasons could compel the Commission to resort to suspending or terminating the protected industrial action. One of the instances is when the action has already threatened, is threatening, or portrays the likelihood of threatening the life, welfare, health, and personal safety of a part of the population or the entire population (Fair Work Ombudsman 2017). The other scenario that can compel the Commission to suspend or terminate a protected industrial action is where the action causes considerable damage to the economy of Australia. About the case of Macquarie TAFE, the Commission can decide to suspend or terminate the industrial action if the action has already caused, is causing, or reveals the potential of causing significant economic damage to the employees of the organization covered by the agreement. The Fair Work Act 2009 also highlights rules regarding employee payments made by the employer during the period of the industrial action. In the event that the employer should not make a payment during the period of the action, the Act prohibits the employer from making such payments and the employee from receiving any payments during the course of the industrial action. In the event that either the University or the employees contravene the rule, the university and each employee would incur penalties of up to $54,000 and $10,800 respectively. (Fair Work Commission 2017) Question 2: Discrimination/Sexual Harassment A Sexual Harassment Claim In accordance with Subsection 28A(1) of the Commonwealth Act, sexual harassment occurs when an individual harasses the other when the harasser makes a sexual advance that is unwelcome to the other person, or requests sexual favours that are unwelcome to the other party. The Subsection also defines sexual harassment as the behaviour where one person engages in a conduct of a sexual nature that is unwelcome to the other person (Fair Work Ombudsman 2017). In both instances, the Commonwealth Act states that sexual harassment occurs where the offender, being a reasonable person, and having considered all underlying circumstances, would have expected that the behaviour would offend, intimidate, or humiliate the other party (Mackay 2009; Hejase 2015). Referring to the Shelley’s case, it is evident that Lewis’ first move is asking Shelley out for dinner to discuss the issue associated with the allocation of low-fee matters. Shelley responds properly by stating that she does not have time to socialize outside business hours citing family commitments as the reason justifying her decision. It is clear that Lewis makes additional sexual advances towards Shelley and requests for dinner outings that Shelley decides to turn down. Shelley makes the point of seeking counsel from other female acquaintances at the workplace. From the advice of the female counterparts, Shelley decides not to write a formal complaint to the HR on the assumption that Lewis’ advances mean no harm. The assumption reveals several barriers such as shame, the fear of embarrassment, and not wanting other employees in the organisation to know that impeded Shelley’s decision to report the sexual abuse to the HR department (Sable et al. 2006; Hebert 2007). Debbarma and Agarwal (2007) also revealed the psychosocial aspects associated with sexual harassment and sexual abuse. The withdrawal of an individual from the peer group or society is one of the effects (Debbarma & Aggarwal 2007). As a result, the risk of Shelley failing to cope with the social environment of the workplace because of Lewis unending sexual advances was imminent. The fact that Lewis states with a wink that they could use the dinner to discuss issues associated with the allocation of the files reveals that Lewis was trying to make non-verbal sexual advances that are unwelcome to Shelley (Harass Map 2015). In the following four weeks, Shelley continues to ignore additional requests from Lewis to go out for dinner meetings. Within the same time, Shelley notes a continued decline in the allocation of files to her desk. As the Managing Partner, it turns out that Lewis decided to revenge on Shelley’s failure to accept his outing requests for dinner by reducing the files allocated to her desk to reduce Shelley’s earnings. After receiving the memo from Lewis about the need to commence full-time employment or resign, Shelley resorts to resigning because she understands that working full-time would have an adverse effect on her family commitments. In reference to Subsection 28 A (1) of the Commonwealth Act (Mackay 2009), it is evident that Lewis behaviour reveal sexual harassment since he makes sexual advances that are unwelcome to Shelley. It is evident that the conduct exhibited by Lewis is unwelcome just like in the Aldrigde v Booth case. In the case, the jury ruled out that the conduct, advance, or request was unwelcome on the part of the employee since the employee neither solicited nor invited the conduct. As a result, the employee considered the conduct offensive and undesirable. The jury utilised a subjective criterion in making the ruling. By so doing, it is clear that the ruling of the case depends on the complainant’s perspective. Since Shelley considers the behaviour exhibited by Lewis to be unwelcome, offensive, and undesirable, it is proper to state that Lewis harassed Shelley sexually. As a result, Lewis is guilty of the offense. Lewis requested Shelley to accompany him to dinner on several occasions in order to discuss the issue concerning the allocation of files. Lewis behaviour of winking to Shelley in the office also indicates that Lewis was making sexual advances that were unwelcome to Shelley at that moment. Consequently, Shelley is likely to succeed with the sexual harassment claim upon filing the case. A Direct and/or Indirect Discrimination Claim In direct discrimination, there is a solid and strong link with the ground of the discrimination basis in substance and form (Moran 2000). On the contrary, indirect discrimination reclines on a non-prohibited formal criterion or criteria that places certain individuals at a disadvantage based on their race, sex among other aspects of discrimination (Maliszewska-Nienartowicz 2014). Australia, just like the other Western liberal democracies prohibits direct and indirect discrimination in the workplace (Doyle 2007). In accordance with Fair Work Act 2009, adverse action in the workplace occurs when the employer subjects an employee to unlawful acts of workplace discrimination. Some of the common forms of adverse behaviour in the workplace regarded as unlawful include employee dismissal, injuring an employee in the course of employment, altering the position of the employee to his or her disadvantage, and discriminating between an employee and other employees. Female employees turn out to be the main victims of sexual harassment in the workplace (Moradeke 2014). The complete elimination of sexual harassment has turned out to be a nightmare for many organisations regardless of the fact that it is costly and illegal (Hersch 2015). The other forms of adverse behaviour include discriminating against a potential employee on the terms and offers of employment (Fair Work Ombudsman 2017). In relation to the case, it is evident that for the four years that Shelley has been an employee in the law firm, she has been receiving low-fee application files on her desk. At the time of joining the firm, Shelley knew that her family commitments implied that she could not work full-time. Consequently, she resorted to working 3.5 days in a week. From the onset, the work rate was sufficient to cater for her bills. However, events took a different direction six months ago when Shelley started receiving low-fee application files. From the type of work that started streaming in her direction, it was evident that Shelley could not cater for her bills, as it was the case initially. Even though the firm indicated that it was an “equal opportunity employer”, Shelley realised that in some way, her work comprised majorly of low-fee matters. In reference to the adverse actions stated in the Fair Work Act of 2009, it is evident that the firm, through the actions of the Managing Partner, Lewis, altered Shelley’s position to her disadvantage. This provides evidence for adverse action since Lewis ensured that Shelley received low-fee legal matters that could reduce her earnings thereby compelling her to consent to his sexual advances. In the State of New South Wales v Amery case, it was clear that the payment scheme allocated two pay scales to teachers. Permanent teachers received higher pays as compared to casuals despite the fact that both groups of teachers had the same level of qualification. Consequently, female teachers filed a case of indirect discrimination based on the argument that they received a pay that was significantly lower than the pay received by permanent teachers. Most female teachers were casuals since they could not meet the permanency requirement that made it imperative for teachers to be available for transfers to any school within the State. Women found it difficult to meet the requirement because of the family caring responsibilities that they had to contend with as they delivered their duties. Consequently, they argued for equal pays for both teachers having equal qualifications whether they were ‘permanent’ or ‘casuals’. Even though the judgment did not favour female teachers that filed the case, later comments from the jury identified the need for turning the wheel on discrimination after realising that the issue presented a case of indirect discrimination (Smith 2008). Just like in the case mentioned above, it is proper to state that the firm discriminated against Shelley in the last six months because she could not work full-time and therefore preferred working 3.5 days a week to cater for family responsibilities. Even though she was working approximately half the required work rate, the firm should not discriminate against her by allocating low-fee matters that would yield reduced earnings thereby influencing negatively on her ability to pay her bills. Just as it was in the beginning, the firm should have continued to offer all types of legal jobs just like full time employees to increase Shelley’s earnings. Therefore, Shelley is likely to succeed if she files a direct or indirect discrimination claim. Question 3: Case Analysis-Unfair Dismissal Summary The case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 revolves around three main issues. The first issue entails sending an email to the unintended or wrong recipient. The second issue concerns the use offensive or disparaging comments in an email. The third issue covers the need for being careful in the use of emails. In the case, Ms Solognin was an employee in the company, Cosmetic Suppliers Pty Ltd. Before the incident, Solognin had a positive employee record. However, the employee tarnished the unblemished record by misusing the email. The case turned out to be a case involving unfair dismissal according to Senior Deputy President Hamberger. The Commissioner reiterated the essence of trust and confidence in the relationship of employees in the workplace as well as the ability of a single mistake to have a negative effect on the relationship. Legal Issues The first issue entailed the use of highly offensive remarks by the employee in the email. The employer had decided to dismiss Sologinkin on the argument that the misconduct had eroded the initial trust and confidence that the company had towards the employee. In one remark, Sologinkin referred to the national origin and ethnicity of a client. According to SDP Hamberger, Sologinkin did not send the email voluntarily. Therefore, it was evident that the employee sent the email by mistake. However, the need for taking responsibility of one’s actions was evident, as it emerged that the employee was holding a management position in the company at the time of committing the offense. From the case, it was also evident that the firm had conducted a thorough investigation on the issue. As a result, it presented a valid reason to dismiss the employee. However, Hamberger also noted that the employee had a long period of service to the company. Moreover, the previous employment record of the employee was unblemished. Finally, the employee was remorseful for the misconduct. Since the task of the employee was to manage relationships with customers, the dismissal was not harsh bearing the magnitude of the misconduct and the role of the employee in the company. Discussion of the Judgment The Industrial Relations Reform Act 1993 identifies specific exclusions that protect employees from unfair dismissal in the workplace. Consequently, it is imperative for the employer to determine a valid reason for termination before dismissing the employee (Voll 2005). Based on the comments of the jury, it was evident that mistakes that result in the loss of trust and confidence in the employee deserve the declaration of the dismissal as fair. However, in the event that the behaviour does not erode the trust and confidence and the employee has had a long unblemished past record, it is not fair to dismiss the employee. Hamberger decided that the dismissal was not harsh, unreasonable, or unjust. As a result, the company dismissed the employee accordingly. However, it is important to note that the ruling could have taken a different course if the employee did not serve the key role of managing customer relations. However, in the event that the gravity of the misconduct was damaging to the reputation of the company, it could still be appropriate to regard the dismissal as appropriate. Commentary on the Case I also support the judgment that the dismissal was appropriate since the employee exhibited a case of gross misconduct that had a damaging effect to the company regardless of the important role that she played in the workplace. As an employee tasked with the responsibility of managing customer relations, being careful and double-checking emails should be mandatory before sending such emails to clients. However, I think that the dismissal could have turned out to be not fair or unreasonable if the misconduct did not erode the trust and confidence that the company had towards the employee. Reference List Aldridge v. Booth, 1988 E.O.C. 92 (1988). Australian Human Rights Commission (AHRC) 2017, ‘Sexual Harassment: Know Where the Line Is’, Available from: https://www.humanrights.gov.au/our-work/sex-discrimination/projects/sexual-harassment-know-where-line Debbarma, J. and Aggarwal, N.K., 2007. Psychosocial Aspects of Sexual Abuse of Women. Doyle, O., 2007. Direct discrimination, indirect discrimination and autonomy. Oxford Journal of Legal Studies, 27(3), pp.537-553. Fair Work Commission 2017, ‘Industrial Action’. Available from: https://www.fwc.gov.au/disputes-at-work/industrial-action Fair Work Commission 2017, ‘Protected action ballots’. Available from: https://www.fwc.gov.au/disputes-at-work/industrial-action/protected-action-ballots Fair Work Ombudsman 2017, ‘Industrial Action’. Available from: https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/industrial-action Fair Work Ombudsman 2017, ‘Workplace discrimination’. Available from: https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/workplace-discrimination Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 Harass Map 2015, ‘What is sexual harassment?’ Available from: http://harassmap.org/en/resource-center/what-is-sexual-harassment/ Hebert, L.C., 2007. Why Don't Reasonable Women Complain about Sexual Harassment. Ind. LJ, 82, p.711. Hejase, H.J., 2015. Sexual Harassment in the Workplace: An Exploratory Study from Lebanon. Journal of Management Research, 7(1), pp.107-121. Hersch, J., 2015. Sexual harassment in the workplace. IZA World of Labor. Mackay, A 2009, ‘Recent developments in sexual harassment law: Towards a new model’, Deakin L. Rev., Vol. 14, p.189. Maliszewska-Nienartowicz, J., 2014. Direct and Indirect Discrimination in European Union Law–How to Draw a Dividing Line. International Journal of Social Sciences, 3, p.1. Moradeke, F.T., 2014. Gender differences in perceptions and experiences of sexual harassment in the workplace. Global Journal of Management and Business, 1(2), pp.036-044. Moran, E.R., 2000. Justifying direct discrimination: an analysis of the scope for a general justification defence in cases of direct sex discrimination (Doctoral dissertation, University of London). Sable, M.R., Danis, F., Mauzy, D.L. and Gallagher, S.K., 2006. Barriers to reporting sexual assault for women and men: Perspectives of college students. Journal of American College Health, 55(3), pp.157-162. Smith, B 2008, ‘Australian Anti-Discrimination Laws: Framework, Developments and Issues’ State of New South Wales v. Amery, 2006 H.C.A. 14 (2006). Voll, G., 2005. Case studies in ‘unfair dismissal’process. Reworking, p.537. Read More