Employment Law - Labor Laws in Australia - Essay Example

Labor Laws in Australia Student’s Name: Institution’s Affiliations Course Code: Date of Submission: Introduction There have been very many current workplace issues in Australia. These issues lead to violations of the rights of employees. The violation of rights such as discrimination, victimization and other forms of violation has been rampant in Australia. The results of these has led to a number of court decisions as precedent which all the subordinate courts are required to follow in their decisions (Goldenhar& Swanson, 2003). Currently, it is evident that the relationship between public life and private life in relation to workplace and home has been porous and therefore there have been many incidences of labor law violations in Australia by most employees and employers (Demerouti & Bakker, 2011). The porosity of the public and private life has led to very many issues which critically affects labor relationship in Australia. Current Workplace Issues in Australia There are a number of issues in the Australian workplace due to increase in demand for labor and related job issues. There has been discrimination that results from criminal records of employees. The employees are being discriminated because he has a criminal record in the country. This violates the rights of employees since they have right to be treated fairly and have equal opportunity with others in the workplace (Frone & Cooper, 2007). There is also an increase in bullying and workplace violence. These actions are also responsible for the infringement of individual rights of freedom which is to be enjoyed by every employee in the workplace. It is also responsible for reducing the strengths of the relationship between the employee and the employer. There are also issues of unpaid trial work in Australia. This is a very common practice in Australia though there is no reliable statistics on the extent of this problem. This practice takes two forms namely work experience and internships (Goldenhar& Swanson, 2003). These practices lead to exploitation of workers in Australia since their effort has a significant contribution in Australia. Finally, there is also incidences of pregnancy discrimination and fixed term contracts and ownership of invention. There are also some critical issues that arise at the end of employment relationship which regards the obligation of both the employee and the employer. There has been a recent case law in Australia that has come up with interesting issues about the employment relationship (Frone & Cooper, 2007). This involves the confirmation of the use of employment contracts of the implied terms of mutual trust and confidence. The case law that has been on the debate is Malik v Bank of Credit and Commercial International SA which demands for the need of employers to act fairly and reasonably to employees. This should be more emphasized on when the company policies express shared commitment and behavior. The Implied Duty of Mutual Trust and Confidence The ruling of Supreme Court of South Australia is that the case between McDonald and state of South Australia is that mutual trust and confidence is part of Australian law in employment contract. This was concluded after series of reviews between English and Australian law. The Plaintiff, McDonald who was a school teacher working for the defendant in the department of education and children (Bakker et al, 2003). McDonald had been a teacher at Brighton Secondary School. The plaintiff complained that the defendant breached his fundamental term in his employment contract to make him have a safe system of work and involve in a contract that defame or damages the relationship of mutual trust and confidence between the employer and the employee. The plaintiff complains that there was no any other choice to take but to terminate the employment since the above breach leads to repudiation of the employment contract. There was also a claim by the plaintiff that he has been constructively dismissed as the termination of work resulted from the breach of the contract terms and condition (Goldenhar& Swanson, 2003). The judge concluded that the plaintiff was expected to see his employment contract being repudiated and therefore should terminate his employment contract constructively. The repudiation of this contract was as a result the breach of contract which involves even breach of implied terms of trust and confidence. There is also another case law which explains the relationship between the employee and the employer in Australia. Perkins v Grace Worldwide, explains that there is necessity of trust and confidence in employment relationship and it should be used by both the employer and the employee (Dollard & Skinner, 2007). The case law of Thomson v Orica Australia Pty Ltd, which explains that there is an implied liability of the employer to act without reasonable cause, to behave in a manner likely to damage the relationship of confidence and trust in the organization. The court determined that there is breach of implied terms of mutual trust and confidence and it took place because of the fact that the school to support the plaintiff effectively, personal development and the management of performance of plaintiff (Goldenhar& Swanson, 2003). There was also failure of the school t investigate the claim of the plaintiff that there was a serious harassment in the school by colleagues who took his phone and produced a copy then changed the contents of his computer. The head teacher also harassed him when he was lodging his complaints that he was being victimized and discriminated against by other employees. The justice saw that there was a breach of the rights of the plaintiff and these could not be tolerated by the plaintiff therefore he had to terminate his contract (Frone & Cooper, 2007). The decision passed by the court show that the employer must take a reasonable care when dealing with the relationship between him and the employees. Failure of the employer to act reasonably to the extent that it causes financial or physical damage can possibly lead to breach of mutual trust and confidence which can lead to payment of damages or specific performance as a remedy. The obligation of the employer to apply the mutual trust and confidence duty is able to cover a range of perspectives including failure to use the correct policies and procedures, to investigate the complaints of the employees that can expose employees to discrimination and victimization of the employees by co-workers. The status of employer’s duties given the increased demand on employees The duties of employers in Australia have increased since there is an increase in demand for employee. The increase in demand of employees in Australia has made the employers to observe all labor laws that ensure they do not violates the rights of employees to improve their work condition (Dollard & Skinner, 2007). The increase in demand on employees in Australia has forced the employers to develop a strong relationship between them and employees since the employees have the opportunity to move to other workplace where their rights are being observed by their employers. The employers in Australia therefore have the obligation to motivate employees through good reward system, good work condition without discrimination and victimization and ensure there is equity in every organization function in Australia. The employers are also expected to maintain the employees and attract some. This can possibly lead to the establishment of strong relationship by ensuring that the company establishes good work policies and procedures that encourage mutual trust and confidence of employees so that the employer cannot lose most of its employees to competitors (Dollard & Skinner, 2007). The status of employer’s duties has increased significantly since they have more duty to act responsibly by ensuring that they maintain their obligations required by the labor law. The employers have the obligation to act with due care and skills so that they do not discriminate other employees based on pregnancy, disability, race, age and gender. They are required to adopt the principles of equity and diversity which allow every employee to participate freely in the workplace. The duties of employers have also increased since they have the obligation to maintain their employees in the workplace. There is also high competition for labor and therefore they are expected to impress their employees by motivating employees by creating training and personal development programs. There are also laws which prevent the employees from shifting from ne organization to the other without a good reason. This ensures that the employee must justify the reason for moving from one job to the other. Labor laws in Australia give the employers an obligation in respect to employee’s entitlement. The employers must ensure that they pay the employees according to their qualification, duties and position in the organization. They also owe the employee a duty to receive all the employment benefits which are prescribed under the labor law (Dollard & Skinner, 2007). The employers are also required to maintain proper employee’s records and pay slips so that there will be no problem in future when computing the retirement benefits. This obligation is also important in ensuring that all the dues of employees are paid without victimization. The employer also has the obligation to allow representatives of employees into the organization without harassment (Bambra et al, 2007). These obligations increase the duties of employers in Australia and therefore employees have to meet this requirement as part of their duty and obligations. Sufficient protection of Employees in Australia The employees of Australia are still in trend of having sufficient protection by the labor laws. There are different sources of labor laws that are used to protect the rights of employees. These laws require that there should be equal opportunities to employees so that there is no discrimination and victimization of employees in the workplace (Anderson, 2003). The different sources of labor laws ensure that the employers meet their obligations which they owe employees and this strengthen the relationship between the employer and the employee. These sources of labor law originate from statute, common law and federal laws which provides the employees with some rights which when violated by the employer entitle to breach of duty of employers which is enforceable under the Australian courts (Gibson et al, 2009). The employees of Australia have intellectual property rights which ensure that their rights to enjoy their invention are there without being denied by their employers. Only invention that they do during the course of employment is allowed to be used by the employer as discussed under the case law below: University of Western Australia v Gray (No. 20) A case involving the ownership of inventions that came about during employment relation was dealt with by The Australian Federal Court, where the court had issues with ownership of inventions as the employee has no obligation to come up with their own new creativity as part of employment (Dollard & Skinner, 2007). Dr Gray, an appointee to the University of Western Australia was to carry out a research on the intellectual property regulations and hence had to resign from his job in 1997. Dr Gray’s resignation made the university confirm the rights to intellectual property based on an implied term. This was done by placing proceedings at the court seeking for recognition of the intellectual property rights as invented by Gray following the implied terms and then made a move to the trial session handled by Justice French (Dollard & Skinner, 2007). It came out that in case of lack of proper contract statements, the employer only secure intellectual property in the new ideas generated by their employees if the inventions are came up with while the employee is employed by their employer. There employees in Australia are have sufficient protection because the current parliament are still enacting employment laws to protect employees (Gibson et al, 2009). It is evident that it is still under development as one member of EU states. It is still evident that industrial relation law has still preserve key restrictions on industrial action put across by the Federal Government which still contributes towards the support of collective bargaining (Anderson, 2003). There are a number of protection measures that increase the rights of parents and carers but there are a number of issues in Australia which have not been dealt with by the Government. Equality Act 2010 In Australia, there is also Equity act which is required to harmonize anti-discrimination laws and the better part of them include pre-existing laws which had been repealed but there are numerous amendments which has been made in them (Dollard & Skinner, 2007). The alterations of these laws were contributed by the conservatives and it also contains socio-economic equality duty of public companies to publish information on gender compensation variation in the organization. Mandatory retirement There is sufficient of employee’s rights in Australia since there is also the use of mandatory retirement act (Dollard & Skinner, 2007). This is contained in the employment equity regulation 2006 where the employees have the rights to practice mandatory retirement ages in employment contracts. In this there is also the use of age discrimination legislation which had been introduced in 2006 where the employees in Australia have the right only to retire at the right age of 65 years. Any retirement before 65 years of age is considered unlawful unless there is a constructive justification (Gibson et al, 2009). The retirement before this age is seen as age discrimination and the employer can be sued for discrimination to pay damages or have an injunction to do what is right. This law protects employees from subjected to early retirement without good reason in Australia. In Australia the employees also have the rights of receiving the right remuneration and fair treatment in the organization. There should be no acts that infringe the rights of employees such as right to discriminate the employees because of disability of gender based discrimination. The employees have the right to work in a good work environment where the policies of the organization are against violation of human rights and freedom (Anderson, 2003). This therefore shows that the employees of Australia are sufficiently protected by the labor laws. The law also requires the employers to act reasonably with due care and skills to ensure that they do not violate the rights of employees (Gibson et al, 2009). These ensure that they offer good remuneration, act none discriminately and to follow labor laws to prevent them from being liable for damages. Conclusion The employer and the employees are expected to maintain a strong relationship between them. The employers should not involve in discrimination against employees be it racial, gender based, age based and sex based discrimination. They have the obligation to use equity provisions which allow fair treatment of employees. The employers are required to provide good entitlement to employees, maintain proper employee’s records and slips and to allow employees representatives to enter the organization freely. Currently there are several issues which affect rights of employees in Australia and they include discrimination and victimization which must be dealt with to maintain good relationship between the employer and the employee. Bibliography Anderson, P. 2003, The Last Frontier: Workplace relations and the Trade Practices Act, Occasional Paper, Institute of Public Affairs, Melbourne. Bakker, A et al 2003.A multigroup analysis of the Job Demands-ResourcesModel in four home care organisations. International Journal of Stress Management, 10, 16-38. Bambra, et al 2007. The psychosocial and health effects of workplace reorganisation: A systematic review of task restructuringinterventions. Journal of Epidemiology & Community Health, 61(12), 1028–1037 Demerouti, E & Bakker, A .2011. 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