Employment Law. Exam notes

Transcription

1 Employment Law Exam notes

2 Table of contents Purposes of employment law 3 Defining employment 7 Fair Work Act introduction 12 Minimum standards 14 Enterprise agreements 23 Industrial action 27 Enforcement 32 Workplace health and safety 35 Contract of employment 37 Discrimination and harassment 41 Adverse action and bullying 45 Termination of employment 53

3 Purposes of employment law Theoretical purposes Employment law can be said to have a number of purposes, with an inherent tension between efficiency of work and protection of workers. The purposes of employment law need to be kept in mind when assessing the effectiveness of the law and planning potential legal reforms. These purposes include (Owens, Riley and Murray in Law of Work): Protection of workers contract law relies on an assumption of equal bargaining power which often isn t present in employment relations; employment law can be used to redress this imbalance by providing for minimum standards or allowing workers to bargain collectively. Redistribute justice the market generally looks to maximise profits and this can be detrimental to workers; employment law can assist here by setting minimum wage standards which maintain a sufficient quality of life for workers Foster social cohesion labour is more than just economic productivity, it is a way to encourage social cohesion and a decent life for all workers; the more workers that are satisfied with their quality of life, the better the social cohesion. Social citizenship work is an expression of social citizenship by its ability to incorporate social and economic rights; work is also often linked with education, training, self-confidence, productivity, selffulfilment, independence and meaning in society. Social inclusion work provides a meaningful way for individuals to engage in society; work, especially paid work, is seen as one of the most critical ways in which citizens are integrated into society. Human rights employment law should integrate the protection of wider social and political human rights. Competition employment law should accommodate and promote efficient and productive commercial enterprises; where employers are competing over labour, standards improve. These purposes must always be balanced; they are not mutually exclusive. This illustrates the tensions that exist in employment law between productivity and worker protection. Employment law should be such that regulations are not too onerous on businesses, but it should afford enough protection so that workers can engage in the market without exploitation.!3

4 Purposes under statute The Fair Work Act 2009 (Cth) ( FW Act ) includes a long list of overarching objectives. Many of them reflect those listed about in the Law of Work text. Various parts of the FW Act also include part-based objectives sections which are also relevant. The overarching objectives of the Act include (s 3): providing a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion ; providing a system that is fair to working Australians [and] flexible for businesses promote productivity and take into account Australia s international labour obligations ; ensuring a safety net of minimum standards through the NES; assisting families with the management of work responsibilities and family responsibilities; enabling representation by union and other employee bodies; achieving productivity and fairness though an emphasis on enterprise-level collective bargaining. Assumptions It is important to note that on some occasions, assumptions can affect an assessment of a particular working relationship. The standard employment relationship analysis is designed to highlight these assumptions about the working relationship. A standard employment relationship is not clearly identified, but it is generally one involving paid work as an employee, full-time work, and for a longer and continuous period of employment. These assumptions of the standard employment relationship are dated. Today, works are much more likely to work part-time, operate as an independent contractor and move from job to job more regularly. History of employment law in Australia It may be said that there are five periods of Commonwealth involvement in Australia s employment law landscape. From 1904 to the 1980s, Australia enjoyed a stable system under the Conciliation and Arbitration Act 1904 and the Industrial Relations Act Both Acts were enacted under the s 51(35) constitutional head of power: with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.!4

5 Conciliation would resolve most industrial disputes, but for those disputes that failed to be resolved, the Australian Industrial Relations Commission would conduct arbitration and produce an award which would then govern the issues being disputed. Awards would be tailored to industries across Australia. When awards were handed down by the Commission, other industries would usually lobby for similar treatment. Almost all Australian workers were covered by awards by the 1980s. The Commission was able conciliate or arbitrate any large-scale industrial disputes that crossed state borders. The Commission would arbitrate in the public interest, and the terms of awards would be resolved by reference to the public interest. During this period, both Acts encouraged the formation of trade unions. Trade unions would represent the collective interests of their members, businesses would represent capital interests, and the Commission acted as a referee to arbitrate any dispute that arose. The system worked well, and full-blown industrial disputes rare arose. From the 1990s to 1996, Australia underwent a shift towards neoliberal thinking which would see regulation reduce and more space and freedom afforded to business in the market. The concept of awards was challenged by the growing importance of geographic areas. Awards were a broad brush stroke approach and it meant that awards were too inflexible to the needs of business and workers. A shift to neoliberalism saw a rise in collective bargaining: rather than employee bodies lobbying at an industry level, individual enterprises would be lobbied and agreements would be strike between a single employer and its employees. Such agreements could only be registered (and thus made enforceable) where it resulted in no disadvantage to those who already operated under an award. From 1996 to 2008, the Workplace Relations Act reformed much of Australia s employment law and industrial relations landscape. With the Work Choices amendments introduced in 2005 on the back of the corporations power (s 51(20)), there was a shift towards individualised bargaining with employers and away from collective bargaining. Individual bargaining was the most controversial element of Work Choices: it required an individual employee to reach an agreement (Australian Workplace Agreement) with their employer despite the obvious power imbalances. Work Choices also removed the no disadvantage test that applied to collective bargaining agreements in the previous era: this meant that minimum standards were undermined because employers could bargain their way out of them.!5

6 From 2009 onwards, the Fair Work Act sought to restore some balance to the scales of industrial relations. The FW Act modernised the award system by moving away from the old prescriptive model: this reduced over 1000 awards to 120 or so. AWAs were phased out, the the no disadvantage test was re-introduced for enterprise agreements. FW Act also established the National Employment Standards; improve allowances for unfair dismissal claims and established Fair Work Australia (now Fair Work Commission) to administer the act. Any proposed amendments to the FW Act must gain the consent of the States. If proposed amendments infringe on fundamental workplace relation principles, then the Commonwealth must get two thirds of the States approval (Fair Work (Commonwealth Powers) Act 2009). Regardless, States have typically excluded their own state public servants from regulation under the referred powers to the Commonwealth. Finally, from 2013 onwards, it remains to be seen what the new Coalition government will do to Australian employment law. As of late 2015, the Coalition have still not substantially amended the Fair Work Act. Criticism In a speech delivered to the Annual Labour Law Conference in July 2013, Geoff Giudice criticised the constant efforts to reform Australian employment law system. He argues that in 20 years there have been four major efforts to change Australian employment law. This results in uncertainty for employers and employees and great cost with each wave of reform. Calls for both sides of politics (who often fall victim to legislating in favour of interest and lobby groups who support them) to identify some common ground: While complete agreement cannot be achieved, attempting to narrow the area of difference would be a good start It will take strong leadership from employers and unions, and Government, to shrug off the dispute culture and the political influences which are both deeply ingrained. The concerns of Giudice are echoed by Paul Howes in his speech to the National Press Club where he called for an end to the industrial relations seesaw.!6

7 Defining employment Terminology At the outset, it is important to appreciate the distinction between contracts of employment and contracts for services. This distinction is critical to whether the FW Act will apply. Contracts of employment (or a contract of service) are the main subject of employment law. Under a contract of employment, parties are called employee and employer. Employees ay be full-time, part-time, casual, permanent or fixed-term. Contracts for services are generally not the subject matter of employment law. Under such a contract, parties are called independent contractor ( IC ), self-employed, dependent contractor, and principal. Most provisions of the FW Act (including minimum wage, sick leave, paid leave and NES) do not apply to independent contractors, but OH&S and Equal Opportunity Acts do apply. Common law definition There is no statutory definition of employment, employee or employer. As a result, the common law provides the meaning of these terms for the FW Act (s 11). At common law, there is no single definition or definitive test for employment. Instead, the courts have developed an impressionistic multi-factor approach to determine whether a worker is an employee (Stevens v Brodribb; Hollis v Vabu). The following indicia are relevant to this assessment. Note that no one factor is determinative, and that courts look to the totality of the relationship between the parties (Hollis v Vabu). Indicia Emp e IC Control exercised over the worker s manner of performance ICs are less likely to be under another s control; only required to produce end result; manner is up to them A mere right to control, rather than actual control may sufficiently indicate relationship of employment (Zuijs v Wirth Bros) Contract terms An express contract term stating the status of a worker is not determinative (ACE) Court adopts a form over substance approach, and wary of sham contracting. Degree of integration Where a worker performs the core function of or an important role in the employer s business, they are likely to be an employee.!7

8 Indicia Emp e IC Uniform Where workers wear their employer s livery this indicates employment relationship (Hollis v Vabu) Supply and maintain their own tools ICs are responsible for supplying and maintaining their own tools (Hollis v Vabu) Capacity to delegate Where there is an unlimited capacity to delegate work without conditions or qualifications, the worker is an IC (Qld Stations v FCT) Freedom to work for others Employees have the implied term of fidelity to their employer ICs are able to service many different principals simultaneously Mode of remuneration ICs are paid for work completed (commission), rather than wages; responsible for their own work insurance and tax. Employees generally receive paid leave, sick leave, worker compensation, and tax and superannuation is deducted by the employer. Goodwill in worker s name ICs create goodwill for their work in their own name, and not the name of their principal Employees create goodwill in their employer s name. Hollis v Vabu is the most authoritative case on the distinction between employees and independent contractors. It was subsequently applied in ACE Insurance. Hollis v Vabu a bicycle courier engaged by Vabu injured Hollis; Hollis sued Vabu for vicarious liability as the employer of the courier; court was required to determine whether the courier was an employee of Vabu, or just an independent contractor. The courier was engaged without entitlements to annual leave or sick leave and no superannuation contributions. The courier was required to provide his own bicycle and maintain it, but required to wear Vabu s livery. Court held that the courier was an employee of Vabu. The court rejected the old degree of control test on the basis that it is no longer determinative because of changing concepts of control in modern employment relationships. Instead, the court adopted the totality of relationship test, first proposed by Mason J in Brodribb. The court relied on the following: Couriers were not running their own business, and they did not have independence in the manner in which they performed their work; they were constantly being direct where to go by Vabu over a radio; Couriers were not required to have specific skills; Couriers did not generate any goodwill in their own name; Couriers were inherently integrated into Vabu s business: without them, there were no deliveries; Couriers required to adhere to strict hours schedule: 9am start; would be fired if they refused work; Couriers wore uniforms with Vabu s logo; and!8