Fair Work Act 2009 - Assignment Example

Name Instructor Course Date Employment Law Question 1 The Fair Work Act 2009 provides regulations regarding most workplaces in Australia. According to Southey (148), termination of employment is when a worker’s service comes to an end for numerous reasons. Commonwealth workplace decrees have regulations about terminating employment. The Fair Work Ombudsman and the Fair Work Commission take the responsibility to enforce Commonwealth workplace rules. The Fair Work Commission handles unfair dismissal, general protections dismissal and unlawful termination claims (James, Natalie and Ombudsman 26). In Mr. Croissant’s case, it is clear that Crusty may challenge his dismissal on an unfair dismissal basis. In order understand the matter surrounding the situation and advise Mr. Croissant accordingly, it is essential to ensure that he understands the provisions of the Fair Work Act, whether or not he is liable and what approach he should take to handle the issue. Unfair dismissal is when an employer terminates an employee’s employment in a harsh, undue or unreasonable way. (Freyens, Benoit and Oslington 295) The Fair Work Commission finds an employee unfairly dismissed under various circumstances. For instance, if the employer lays off the worker and it is not a resignation or any other form of work termination. The dismissal should also be based on harsh, undeserved or unreasonable justifications. The release should also not be due to genuine redundancy. Lastly, the employee should have worked for the small business, and the discharge was not in accord with the Small Business Fair Dismissal Code (James, Natalie and Fair Work Ombudsman, 38). Therefore, it is only in the aforementioned situations that the Fair Work Commission can consider a sack an unfair dismissal. It is important to determine whether the unfair dismissal rule actually applies to Mr. Croissant’s business since he expresses that he heard that there is an exemption for small businesses. Small businesses have different regulations for discharge of employees from other enterprises that are provided in the Small Business Fair Dismissal Code. Southey (153) states that a small business is defined as any enterprise with fewer than fifteen workers determined through a straightforward headcount of all staff employed on a regular and systematic foundation. The code provides security of small business employers against unfair discharge applications where the owner abides by the law (James, Natalie and Fair Work Ombudsman 47). In Mr. Croissant’s case, it is essential to stress on the fact that the Small Business Fair Dismissal Code is only relevant to enterprise owners with fewer than fifteen employees. Hence, the first critical step is to determine whether Mr. Croissant’s establishment falls under the classification of the small enterprise or other businesses. The Act states that a casual employee will only count as an actual worker of a business if the member of staff has been working regularly and systematically (James, Natalie and Fair Work Ombudsman 44). In the case of Harry Grives v Aura Sports Pty Ltd (2012), the Fair Work Commission evaluated whether two workers were working on a regular and systematic basis. In the decision, the Commission made several observations about how to determine if an employee is a regular and systematic worker of a business. The employee needs to have been employed on a frequent and orderly basis at some point during their employment. The employee does not need to have rational anticipation of ongoing employment with the manager. The employee does not need to be able to predict when the employer may need their services. The design of work must illustrate the organization’s dependence on worker’s services in the management of the business. Therefore, applying the guidelines that the decisions of the case provided, Mr. Croissant’s business does not fall under the small enterprise category. Mr. Croissant’s establishment employs four apprentices, six bakers, three part-time administrative staff and five casual employees who work regularly when others are sick or not available. Therefore, it would be right to say that the business has seventeen employees. One could argue that the casual workers do not count as employees. However, from the guidelines given by the decision in the Harry Grives v Aura Sports Pty Ltd case, the casual employees apparently work in a regular and systematic manner thus included when counting the workers. Therefore should Crusty challenge the dismissal, the guidelines surrounding the situation are under the Fair Work Act regulation regarding other business that is not small enterprises. Having established that Mr. Croissant’s establishment does not fall under the protections of the Small Business Fair Dismissal Code, it should be considered whether he is liable for unfair dismissal and the potential liability should Crusty’s claim be successful. Normally, an employer cannot terminate a worker’s services without a written notice of the last day of employment (Sappideen, O’Grady and Riley 63). The employer can either let the employee offer their services through their notice period of paying them out. Irrespective of the situation, the reason for termination has to be reasonable, fair, and gentle. In Mr. Croissant’s case, the first challenge he would face on the issue is that he did not give Crusty a notice of termination of employment. Crusty has all the rights to put a claim to the Fair Work Commission for unfair dismissal. The Fair Work Act provides that an employee of a larger business who has worked continuously for six months qualifies to make an application for wrongful discharge (James, Natalie and Fair Work Ombudsman 47). Therefore, the commission would also need to look at Mr. Croissant’s reasons for the sack. According to the business owner, he fired two apprentices for having a relationship with his daughter who is also an employee of the establishment. Mr. Croissant does not have a formal sexual harassment policy. According to the Australian Human Rights Commission, employers should observe several measures regarding sexual harassment (McDonald, Charlesworth and Graham 47). The company owners should make and endorse a written document on workplace discrimination and harassment. There should also be an efficient workplace complaints procedure. Hence, Mr. Croissant cannot use the claim of sexual harassment to sack two employees when he did not abide by the provisions of the Human Rights Commission of Australia regarding the issue. Another matter of concern is the fact that there are no laws banning romantic relationships among employees. It is upon the employer and the employees to come up with their company’s tradition and agree on certain terms regarding the issue. In Australia, unlike the USA where employees sign love contracts, employers expect staff to conduct themselves to a particular standard (Wright, Chris and Larnsburg 79). In the case of romantic relationships, employers have to make a formal and clear agreement with their employees on the matter before they can hold the workers liable. Hence, with the lack of formalities regarding the issue, there was no crime in the employees having a relationship with Mr. Croissant’s daughter. If the employees were wrong, then Mr. Croissant should also have fired his daughter. Otherwise, he acted out of his personal motives by firing the employees with no reasonable or just justification. Therefore, the law provides that an employer is liable when an employee successfully challenges a discharge as an unfair dismissal. One of the ways to resolve the matter is the reinstatement of the worker to his previous position or a new one that is considered similar to the earlier one. The similarity of positions is determined by looking at the pay, hours of work, and responsibilities (James, Natalie and Fair Work Ombudsman 59). According to Mr. Croissant, following the situation he has had with his two apprentices, he is not comfortable with taking them back to work for him. Therefore, the other option is compensation. Compensating the employee would necessitate that Mr. Croissant gives him the equivalent of six months’ pay. However, the employer cannot afford to pay such an amount considering he needs to hire two new employees. Therefore, the best option would be a settlement at conciliation (Moorehouse 80). Looking at Mr. Croissant’s feelings on tackling the unfair dismissal liability and the establishment’s financial status it would be best to advise him to settle for conciliation. The settlement involves a Fair Work Commission conciliator, the employer, the employee, and the worker’s lawyer. Conciliation would be of benefit for Mr. Croissant as it will help him solve the issue with the employee early enough and get back to handling his business. Taking a case to the court system is not only expensive but also time-consuming and stressful for both parties. The employer can also get to save money compared to compensations where he has to part with a lot of money. Therefore, to come to a settlement, Mr. Croissant should be ready to admit that the dismissal was unfair and be willing to come to an agreement with Crusty (Van et al. 431). Lastly, another factor that Mr. Croissant should consider is that he fired two employees. Bob has served him longer than Crusty and is also qualified to apply for unfair dismissal. Therefore, when settling with Crusty, he should also put Bob into the picture and act fairly to both employees. In a case where Mr. Croissant only has a settlement with Crusty, Bob can challenge both the dismissal and lack of settlement that would cost the employer more money. Mr. Croissant should also come up with clear and formal policies regarding sexual discrimination and harassment as the Australian Human Rights Commission provides. He should also make a formal agreement with his employees on the standard behaviour regarding relationships between workers. Question 2 Determining whether a person is an employee or not is essential, for instance, in applying for social security. According to Boyle (3), an employee is any worker who under the common law rules pertinent to recognizing the employer and employee relationship, has the standing of a member of staff. Therefore, making a resolve whether a relationship exists needs more considerations than the existence of a paycheck. The common law control test is the key analysis for establishing whether a relationship exists between the employee and the person that he or she works for. There is no constitutional definition of an employee or independent contractor, hence, Australian courts the common law test to determine whether the existing association is one of employment or an independent contract for services (Acharya, Baghai and Subramanian 1023). According to critiques of the test, in as much as it may seem like a multifactor analysis, it places substantial emphasis on the aspect of control. The common law describes several factors that are of consideration in establishing whether an individual is an employee or an independent contractor. For instance, if the supposed employer exercises control over the way in which the worker performs the roles described in his work. The test also considers whether the employee purchases their tolls of work. It also looks into the description that both parties assign the relationship. Another consideration is whether the employee represents the organization or employer to the world as a whole. It also looks at whether there is a deduction of income tax from the payments made to the putative employee. Traditionally, the aspect of control was the key indicator of a worker and employer relationship. The common law has the purpose of ensuring there is fair judgement in the matter concerning employee and employer relationship, however, there is no denying that even with the numerous factors it provides to put into consideration, a lot of emphasis is still put on control (Milson 59). The relationship between a worker and the owner of the business or organization is a contractual one, often defined as a contract of service. The association is often contrasted with the autonomous contractor affiliation that points to a contract for services. An independent contractor characteristically enters into an agreement to attain a result while an employee agrees to offer their labour to the employer (Rosenbloom 83). The courts have deliberated on the common law contractual affiliation between parties in a range of legislative frameworks. Some of the circumstances include tax, payroll duty, industrial relations, employee compensation, explicit liability, and superannuation guarantee. As a result, the considerable and well-established body of case law has advanced on the issue. The classic analysis for establishing the nature of the association between an individual who appoints another to execute work and the person who has the responsibility to engage the roles is the degree of control which the former can employ over the latter. Hence a common law employee receives orders on not only what the work entails but also how and where they have to perform it. With the increasing utilization of skilled labour and subsequent reduction in managerial functions, the significance of control remains not so much in its real employment but other work relationships between the worker and the employee (Cappelli and Keller 581). For instance, in the case Humberstone v. Northern Timber Mills, the decision of the Court indicates that even in the modern day, with decreasing supervisory roles in the work setting, control is still the key consideration in determining the affiliation between an employee and the manager or owner of the organization (Douglas, Atkins and Clift 353). In the case above the decision reflected the modern day use of the common law. The decision stated that the issue is not whether in routine the work was actually done subject to orders and control from an actual supervisor. Instead, the judge, Dixon J, explained that the main consideration the court made was whether the ultimate power to direct and control the worker rested on the employer. Similarly, the High Court in Zuijs v. Wirth Brothers Proprietary Ltd illustrated the significance of control in establishing the nature of the relationship between a worker and the employer in a case where there is little opportunity for comprehensive control (Douglas, Atkins and Clift 356). According to the High Court, what has a bearing on the matter is the legal ability to control as far as there is space for it. In a work setting, there must always be some scope for command even in subsidiary or collateral matters. Therefore, the two cases indicate that despite the currently decreasing need to the direction of employees, there is still an emphasis on the aspect of control when using the common law test. The mere fact that a contract may spell out clearly how the serviced should be delivered does not warrant an employment affiliation. A high degree of command and supervision is not exceptional in a contract for services. The payer has the freedom to detail how the contractor should perform their services; however, such authority should be articulated in the form of a contract. If not the case, the contractor has the right as per their professional judgement subject to the relevant terms that the law entails. The reason for the relationship is because the contractor works for themselves, unlike an employee that performs duties on behalf of the employer. Hence, control remains a matter that courts and labour commissions place considerable emphasis on in establishing whether an individual is a worker or independent contractor (Boyle 3). While control is significant, it should not be the sole pointer of whether or not an association is one of employment. The methodology of the courts has been to consider control as one of the indicators that have to be put into consideration in establishing the existence of an employment relationship. Nevertheless, even though the current approach to evaluating the contractual association is to have the consideration to the totality of the affiliation between the parties, control remains the most noteworthy factor regarded (Acharya, Baghai and Subramanian 1020). The situation was identified by Wilson and Dawson JJ in Stevens v. Brodribb (1986) 160 CLR 16 at 36). The two state that in several, if not many cases, it is still suitable to apply the control test as a primary factor because it is the most substantial guide to whether a person is an independent contractor or an employee. In Hollis v. Vabu (2001). 207 CLR 16, since the couriers working for Vabu had minimal control over the way of performing their job was a significant factor leading to the decision that the bicycle courier in the case was a common law worker of Vabu. The judges made the observation that Vabu’s whole establishment entailed the delivery of documents and parcels through couriers. Vabu had the authority to allocate and direct the deliveries. Vabu’s fleet controller assigned the work that each courier had to do. Hence the couriers delivered goods in a way in which Vabu ordered. As a result, the court concluded that the business comprised the assembling and direction of the work of the couriers thus; their efforts were a public demonstration of Vabu’s business. Therefore, it is clear that the common law in determining who is an employee still places considerable emphasis on the concept of control. Question 3 The situation that Elizabeth is facing involves a change in the employment contract. Just like any other employee, it is right to be worried that if she protests against the changes, she may lose her job. However, the primary purpose of existence of laws regarding such matters is to ensure each party has the fair opportunity to fight for what they feel is right. A contract of employment is a legal deal between the employer and the worker. The terms of the agreement cannot undergo any modifications without conformity from the employee either independently or through a recognized trade union (Forsyth 377). Changing to an enterprise agreement may involve various changes in Elizabeth’s contract. It is, therefore, necessary that she fully understands what an enterprise agreement involves before she can get advice on how to handle the issue. According to Holley (679), business agreements are made at a corporation level between the employer and workers and their union regarding the terms and conditions of employment. Enterprise agreements can comprise a broad range of factors. For instance, the rates of pay, hours of work and overtime. It also outlines how and when the employer will make a consultation with the employees and their representatives. The agreement details dispute resolution measures and tax deductions. An enterprise agreement replaces an award (Walpole 212). Therefore, Elizabeth’s recent award that protects her employment will no longer be relevant. Nevertheless, the pay rate in the enterprise agreement should not be less than the pay rate in the modern award. Hence, if the business agreement is made and approved by the Fair Work Commission, Elizabeth will no longer continue to enjoy the conditions in her modern award. Regarding the negotiation of the agreement, the law provides that it should be done between employees’ union and the employer. One worker cannot make individual agreements, the regulation is meant to protect workers from being played off against each other. As a member of a union, the union should represent the worker. Therefore Elizabeth’s employer cannot deny her the right to have representation from her union in the negotiations. The process of getting to a deal can take a lot of time and needs excellent industrial knowledge and expertise in negotiations to deliberate on the significant matters to both sides(James, Natalie and Fair Work Ombudsman 86). Additionally, there are regulations about making enterprise agreements that if Elizabeth’s employer does not comply with, can be challenged in court. Fair Work Australia oversees the process of changing to a business agreement. One of the primary regulations is referred to as “bargaining in good faith.” The phrase means that both parties should have a fair deal in the agreement (Cooper and Baird 576). Therefore, participants must acknowledge and negotiate with other parties involved. The Fair Work Commission also expects that both parties should make significant information known in a timely manner. They should also act in response to the views of the other team in a timely manner. Each party must genuinely deliberate on the proposals of other negotiating representatives and give reasons for their responses. The bargaining teams involved should avoid behaving in a manner that would undercut freedom of association or collective bargaining (James, Natalie and Fair Work Ombudsman 97). Based on the regulations that apply to the making of an enterprise agreement, Ginninderra Apples Pty Ltd (GA) is clearly undermining some of them. For instance, the Elizabeth reports that GA is not responding to any phone calls or correspondence from the Union. GA has informed Elizabeth that she cannot involve the union in negotiating the proposed deal. However, the Fair Work Commission clearly states that the employees should have representations from their unions in the making of an enterprise agreement to allow collective bargaining and prevent the employer from playing off one worker against the other. The company is, therefore, denying Elizabeth, her right to association. GA is also failing to uphold the regulations on genuinely considering the views of other bargaining parties by choosing not to reply to the Union (Townsend, Wilkinson and Burgess 113). Additionally, Elizabeth reports that GA did not give all the members of staff a notice of the employees’ representation rights before proceeding to negotiate the proposed enterprise agreement. According to the Terms of Employment (Information) Act section 5, the employer should inform the workers in writing on the nature of any changes that could occur. GA failed to uphold the regulation since not all employees received any notice regarding their representation in the enterprise agreement negotiations. As a result, the employees cannot have fair representation through experts that would be able to weight the benefits versus disadvantages of getting into an enterprise agreement. The employees have the right to get an early notification so that they can get their union representatives to bargain on their behalf. However, GA ultimately assumed the law on circulating a written notice, and thus, the workers cannot get a fair deal (Bailey and Peets 60). Elizabeth is also worried about the consequences of both agreeing and disagreeing to the enterprise agreement. The employer can only change the terms of the employment if both parties agree to it. Therefore before accepting the offer, the employees should ensure that they fully understand what the deal entails. The employees should also explore their right to association and have their unions represent them. Collective bargaining will make sure that the workers get an agreement that will be fair and cater for their needs. In Elizabeth’s case, she has no obligation to agree to the proposed changes. However, choosing to avoid any protests in fear of losing her job may lead to having to ensure unfair working conditions (Sheldon and Thornthwaite 391). When the employer attempts to change the terms of employment without the involvement of the other party, it will be a unilateral variation. A unilateral move is illegal according to the rules on employment conditions; hence, the employee can make a claim for a breach of contract. However, should the employee keep on working without protesting, it can be an indication of agreement to the effected changes. The employer can assume a custom and practice tendency should the workers fail to protest against the enterprise agreement. Custom and practice occur when despite variations in the working conditions, employees continue to work without responding to them over a long time (Sutherland and Riley 397). In such cases, the employer can argue that the lack of response was evidence that the workers were in accord with the changes. Elizabeth cannot undergo termination of her employment for disagreeing with the terms of the proposed enterprise agreement. If the employer terminates Elizabeth’s employment for protesting against the proposed changes, she can apply for unlawful termination. The 2009 Fair Work Act defines unlawful termination as a situation where the employer dismisses an employee on a discriminatory basis. For instance, sacking a worker for exercising or planning to engage a workplace right by making a complaint or inquisition about one’s employment, or taking part in proceeding against the employer. It also includes the discharge of an employee due to trade union membership or non-membership or contribution in industrial activity. Therefore, dismissing Elizabeth for protesting against the terms of the proposed agreement will be unlawful termination that is subject to investigation by the Fair Work Commission should she make a complaint within twenty-one days (James, Natalie and Fair Work Ombudsman 64). The Fair Work Act, 2009 requires a fair bargaining process in an enterprise agreement. Employee unions, therefore, should be able to represent the workers and ensure a fair deal. However, GA has failed to reply to the Union and informed Elizabeth that she has no right to involve the Union as a representative in the negotiations. The step is a denial of the employees’ right to association and union representation. The Union can report the matter to the Australian Industrial Relations Commission. Under the Industrial Reform Act of 1994, the Commission can nudge reluctant negotiators to the table to ensure the Union can represent employees’ well-being. The Union can also apply for the intervention of the Fair Work Commission on the matter (Buchanan, Oliver and Briggs 73). Therefore, Elizabeth does not need to worry about losing her employment for failing to agree to the proposed enterprise deal. The Fair Work Act 2009 makes it clear that in entering an enterprise agreement there should be good faith bargaining. Good faith bargaining simply implies that each of the parties involved had a fair chance on the matter before a coming to a conclusion on it. The rule also approves a trade union with a member covered by the agreement to act as a bargaining representative. Thus, GA has no right to deny Elizabeth of involving the Union in negotiating for her. The regulation also champions collective bargaining to ensure the employer does not play off one employee against the other. The employer cannot get an approval of the proposed agreement without abiding by the regulations set forward in the Fair Work Act 2009. To certify the enterprise agreement, it should be genuinely approved by all employees. The agreement should also pass the Better Off Overall Test (BOOT). The BOOT is an analysis that established whether the agreement would meet equal benefits for both the employer and employee without disadvantaging one party (Forsyth 382). Hence the enterprise agreement cannot come into effect if GA fails to abide by the provided regulations on the matter. Read More