TOPIC 1: FEATURES OF AUSTRALIAN EMPLOYMENT LAW... 3 PIRAC... 3

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1 Table of Contents TOPIC 1: FEATURES OF AUSTRALIAN EMPLOYMENT LAW... 3 PIRAC... 3 TOPIC 2: CONTRACTORS VS. EMPLOYEES... 4 TOPIC 3 TERMS OF THE COMMON LAW CONTRACT (EXPRESS TERMS, IMPLIED TERMS & VARIATION OF CONTRACT)... 7 EXPRESS TERMS... 7 HUMAN RESOURCE POLICIES AND MANUALS... 7 VARIATION OF TERMS... 9 IMPLIED TERMS IMPLIED EMPLOYEE DUTIES Action That Can Be Taken by Employer in Employee breach of duty IMPLIED EMPLOYER DUTIES TOPIC 4 FAIR WORK ACT 2009 & THE SAFETY NET STEPS NATIONAL EMPLOYMENT STANDARDS CASUAL ENTITLEMENTS UNDER THE NES NES - 10 STANDARDS Maximum Working Hours Request for flexible working arrangements Leave Public Holidays Notice of Termination and Redundancy Pay REMUNERATION Payment of wages AWARDS - TERMS ALLOWED/NOT IN MODERN AWARDS MANDATORY CONTENT s DISCRETIONARY CONTENT s PROHIBITED CONTENT s CONTRACTING OUT OF AWARDS Individual Flexibility Agreements (IFA) (s144) High Income Earners (s 47(2)) TOPIC 5 THE GENERAL PROTECTIONS TOPIC 6 TERMINATION OF EMPLOYMENT LAWFUL DISMISSAL WITHOUT BREACH SUMMARY DISMISSAL (SERIOUS MISCONDUCT) UNFAIR DISMISSAL (FWA Part 3-2) WRONGFUL DISMISSAL - COMMON LAW/JUDGE MADE LAW TOPIC 7A ENTERPRISE AGREEMENTS AND TRANSFER OF BUSINESS ENTERPRISE AGREEMENTS FWC S POWERS TESTING WHETHER AN AGREEMENT IS LEGAL BARGAINING PROCESS TERMINATING AGREEMENTS EMILY ANGELA THWAITES 1

2 TRANSFER OF BUSINESS TOPIC 7B COLLECTIVE LABOUR RELATIONS PT 2 TRADE UNIONS, INDUSTRIAL VICTIMISATION & INDUSTRIAL ACTION Freedom of Association refer to general protections INDUSTRIAL ACTION STEP 1 IS THE INDUSTRIAL ACTION PROTECTED? STEP 2 WHAT ARE THE CONSEQUENCES IF THE LAW IS NOT FOLLOWED NON-PROTECTED INDUSTRIAL ACTION UNION RIGHT OF ENTRY LAWS INDUSTRIAL VICTIMISATION TOPIC 8A: DISCRIMINATION (EOA&FWA) (1) THE EQUAL OPPORTUNITY ACT (EOA) (2) THE FAIR WORK ACT (FWA) TOPIC 8B WORKPLACE HEALTH AND SAFETY OHS ACT 2004 CONSULTATION AND WORKER INVOLVEMENT ENFORCEMENT AND PENALTIES TO EMPLOYER STEP 1: IDENTIFY WHO HAS POTENTIALLY COMMITTED A BREACH STEP 2: IDENTIFY THE DUTY(IES) THAT THE RELEVANT PERSON(S) HAVE UNDER THE ACT OBJECTS AND PRINCIPLES OF HEALTH AND SAFETY PROTECTION GENERAL DUTIES PLACED ON THE EMPLOYER: DUTIES TO: DUTIES IMPOSED UPON OTHERS: STEP 3: THE ER MUST DO WHAT A REASONABLE PERSON WOULD DO IN THE CIRCUMSTANCES TO REDUCE THE RISK TYPES OF ACTION COMPENSATION COMPENSATION UNDER LEGISLATION WHEN IS AN INJURY/DISEASE COMPENSABLE? COMPENSATION UNDER COMMON LAW (SERIOUS INJURY ONLY) HISTORY AND OVERVIEW HISTORY OF INDUSTRIAL RELATIONS IN AUSTRALIA FUNCTION AND HISTORY OF AWARDS EMILY ANGELA THWAITES 2

3 TOPIC 1: FEATURES OF AUSTRALIAN EMPLOYMENT LAW PIRAC (a) ISSUE: Identify the essential issue(s)in the question (b) RULE: Identify the relevant law (relevant legislative provisions and cases) (c) APPLICATION: Apply the law to the problem (facts). This should be the bulk of your answer. (d) CONCLUSION: Form a reasoned conclusion on the application of the law to the facts. Avoid restating the facts. OVERVIEW Federal and state system of labour regulation in Australia Rights and obligations of workers and employers are affected by so many different instruments Two types of law: Common Law/judge made law/case law Statute/acts/legislation parliament write law (state and federal) Protective goals: Individual employment rights o Individual employment contract (superannuation) o FW act imposed statuary obligations on employers to afford of comply with minimum standards o Legislative intervention imposed (Discrimination etc.) Collective rights o Enterprise bargaining o A right to join trade unions Deregulation - Traditional justification for labour regulation (Protective goals) challenged Decent working conditions are a fundamental human right and undeniably it is very difficult for many workers to bargain for better conditions VS. Businesses wanting deregulation and radical reforms because it is necessary to promote greater freedom and choice no need to interfere and impose undue burden or restraints on businesses EMILY ANGELA THWAITES 3

4 TOPIC 2: CONTRACTORS VS. EMPLOYEES OVERVIEW Whether a person is an employee or contractor Many entitlements/protections are only applicable to employees not contractors It is cheaper to hire a contractor- some organisations try to mask employment relationships as contractor relationships Vicarious liability: employer is held liable for acts or omissions of employees (not contractors) It is important to identify the relationship, as it will determine whether company is vicariously liable for negligence, whether person is owed leave etc. CONTRACT OF SERVICE EMPLOYEE CONTRACT FOR SERVICE CONTRACTOR STEP 1 STATE WHETHER IT IS AN INDEPENDENT CONTRACTOR OR EMPLOYEE STEP 2 STATE THE PRINCIPLE (MULTI-FACTOR TEST) STEP 3 STATE THE AUTHORITY EXAMPLE CASE CASE EXAMPLE Stevens v Brodribb (Multiple Factor Test- held contractors) a. Overview: One wood cutter was hurt due to another s (Mr. Greys) negligence b. Issue: Whether Mr. Grey was an employee or a contractor i. Whether the company was liable of the negligence (vicarious liability) c. Facts i. Supplied their own equipment (expensive-truck) ii. Free to delegate work to others iii. Paid according to number of logs delivered iv. Were not entitled to annual or sick leave v. Free to work for other hirers vi. Tax was not deducted from pay vii. Was not controlled by the company on how he carried out his work d. Held: the wood cutters were contractors this determination depended on a consideration of the totality of the relationship between the hirer and the worker EMILY ANGELA THWAITES 4

5 Hollis v Vabu (Multiple Factor Test broadened public policy grounds/equipment inexpensive) e. Overview: Hollis was hit by a bicycle courier when leaving the building and was left seriously injured f. Issue: Whether the courier was an employee or a contractor/ Whether the company was liable of the negligence (vicarious liability) g. Facts i. Argument for Contractor 1. Contract expressly stated to be a contractor 2. Remuneration - Payment was made by how many deliveries they make 3. No leave entitlements, superannuation & tax deducted from the pay 4. Pay for their own bikes, public liability insurance and repairs ii. Argument for Employee 1. Control a. Had to wear uniform b. Rigid work times and had to clock on and off c. Had to go to an authorised repairer and insurer of the company d. Ask for permission for when they could go on holidays 2. No power to delegate h. Held: The courier was an employee i. Public policy grounds 1. Cannot have workers on the roads and hurting people ii. Enough control to suggest they were not contractors iii. The equipment was not that expensive Zuijs v Wirth Bros (Right to control) a. Overview: Mr Zuij was an acrobat, he was dropped by another acrobat and was injured, he applied for worker s compensation b. Issue: was Mr Zuji a contractor or employee i. Should Wirth Bros pay the workers compensation c. Facts: i. Evidence suggest had a right to control 1. Wages, rehearsal and performance times etc. ii. Circus operator did not control or direct how to perform the acrobatics did not take them out of the employee category. d. Held: the acrobats were employees due to a right to control EMILY ANGELA THWAITES 5

6 STEP 4 APPLY THE FACTS OF THE CASE TO THE MULTI-FACTOR TEST 1. Capacity to delegate work to others (CRUCIAL) o Persuaded by the power to delegate o Absolute Power to Delegate (Determines - contractor) if there is an absolute power to delegate no further discussion is necessary o Power to delegate with restrictions or conditions - this does not conclude the relationship (indicates control-employer/employee relationship) further discussion is necessary. 2. Contract terminology o even if it expressly states Employee or Contractor this does not determine the legal nature of the relationship, further discussion is necessary e.g. Hollis v Vabu 3. Control o (indicates employee) (important but not conclusive totality of relationship is important) Uniform Hours How they perform the work Direction/direct supervision (not always an indicator as there are jobs involving specialised skills cannot be supervised even though they are employees e.g. medical/it) Instead the right to control is more important 4. Mode of remuneration salary (indicates employee) vs. paid for each outcome (indicates contractor) 5. Taxation matter - taken out of pay (indicates employee) 6. Superannuation paid (indicates employee) 7. Leave provisions (indicates employee) 8. Whether the worker can operate through a company or in partnership o A.B.N. if they can work for multiple companies- (indicates contractor) o A.B.N. if they can t work for multiple companies (indicates employee) 9. Ownership or maintenance of tools/equipment (indicates contractor) o If it is cheap (like the bike in case if Hollis and Vabu) then this does not act as a point 10. The worker bears risk of loss, or conversely has any chance of making a profit from the job (indicates contractor) 11. Is the worker responsible for insuring against work-related injury? (indicates contractor) (Except in the case of Hollis and Vabu) EMILY ANGELA THWAITES 6

7 TOPIC 3 TERMS OF THE COMMON LAW CONTRACT (EXPRESS TERMS, IMPLIED TERMS & VARIATION OF CONTRACT) EXPRESS TERMS Terms that the parties to a contract have expressly and specifically discussed prior to concluding the contract. Usually they are the terms that are found in and make up the written contract. HUMAN RESOURCE POLICIES AND MANUALS ISSUE 1: What circumstances can it be interpreted that the documents/policies have been incorporated by reference as part of the contract of employment (to become an express term) STEP 1 DISCUSS HOW THE POLICIES ARE REFERRED TO (a) Referred to in the contract/letter of offer (b) Attached to the contract/letter of offer (c) Not referred to/given after the start of employment - not contractual Go to implied terms STEP 2 DISCUSS THE LANGUAGE (a) Strong/promissory language contractually binding (b) Feel-good/weak/soft language not contractual Go to next step STEP 3 BUSINESS EFFICACY TEST (IMPLIED TERM) (a) By Fact and Custom i. Presumed terms and conditions despite whether they are expressly said (b) By Law i. Legal duties of employers and employees. Terms that the common law implies into every contract of employment unless they are expressly excluded by the parties. STEP 4 RELATE TO CASE CASES EMILY ANGELA THWAITES 7

8 Riverwood International v. McCormick (Clause in contract incorporated by reference) Overview: oral contract of employment, company was acquired, new owners sent a written (take it or leave it) contract of employment, the contract was signed and returned the contract. McCormick was made redundant after 37 years of work in the same job. He claimed redundancy was owed. Issue: Whether the policies were contractual Facts: Clause in contract: You agree to abide by all company polices and practices currently in place, any alterations made by them, and any new ones introduced. Held: Employee won o The manuals were expressly incorporated by reference into the contract of employment through the letter of offer. o The abide by language was strong and viewed it as meaning acceptance and continuing to observe. This was reasoned that it be a mutual obligation to abide by the policies even though the employee was not specifically burdened by them. o It was reasonable to assume that the company intended to be contractually bound by the documents. Goldman Sachs v Nikolich (Policy attached to letter of offer- incorporated by reference) Overview: Financial advisor developed depressive disorder over a long dispute by the way clients were allocated, was then dismissed. Claimed the company had breached his employment contract by not adhering to the Working with us policy Issue: Whether the policies were contractual Facts: Was not referred to in letter of offer o The policy was attached to (given with) the letter of offer (incorporation by reference as an express term) o The Working with Us Policy contained a range of procedures, the company s goals in providing a healthy and safe workplace, strict policies against bullying and harassment and a code for dealing with integrity o Strong language indicates contractual intent Held: Employee won o Goldman Sachs had breached the employment contract by failing to follow the procedures in the policy. Damages were awarded for past and future loss of income plus damages for general breach of contract. Tony Selak v Woolworths (serious misconduct doesn t need incorporation - but strengthens) Overview: Store manager went out for lunch and had 2 drinks and returned to work. Woolworths later sacked him on the spot of serious misconduct and not complying with the company s zero tolerance policy. Issue: in the case for serious misconduct the policy does not need to be incorporated into the contract but it strengthens the case (implied duties). Facts: The policy was incorporated into the contract. Held: Woolworths were able to dismiss Selak EMILY ANGELA THWAITES 8