Employment Law Questions PDF

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Questions from each weeks seminars with different topics...

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Employment Law Questions: Day 1: Introduction; Sources of Employment Law 1. What are the origins of employment law in Britain and Australia? What technological, economic and social factors have influenced the development of employment law? How might these factors have affected the character of contemporary Australian employment law? - The Australian worker must look to England to find the origins. The English law was influenced by Roman Law. Roman law had varying degrees of freedom which depended on the status of the individual. - The real nexus between English and Roman workers under Roman law is found in the agricultural laws of each society. - People who were rural workers in Rome were somewhat between slave and freeperson. After the Norman Conquest a similar position was found in England. - The Black Death emancipated workers, half from death and the other half freed by the massive under-employment. - Industrialisation of England was in full swing in the late 18th and early 19th centuries. England was moving from agrilculture to an industrial economy. Factory labour had replaced the systems of villeinage and guild. - The workers saw the possibility of using the provisions of the Statute of Artificers to their advantage, demanding the justices use their powers to fix wages and demanded that the apprenticeship provisions be enforced - Industrialists didn’t want fixed wages and disapproved of their demands. - Laissez faire was based on the concept that every individual was free and had free will. Parliament accepted this theory and would not enact legislation that in any way fettered the expression of the free will of any person. - This developed the relationship of master and servant. New law was needed. - The employment contract developed out of this. 2. What major statutory changes have occurred in Australian employment law over the last two decades? Why is the regime established by the Fair Work Act appropriately called a national system? - The Fair Work Act 2009 operated since 1 January 2009. This provides for mandatory terms and conditions of employment through the imposition of 10 ‘National Employment Standards’, the creation of modern awards and provisions enabling the making and enforcement of enterprise agreements. - The Fair Work Act also expanded access to the federal unfair dismissals jurisdiction which had been significantly restricted by the Work Choices. - The Fair Work Act also consolidated a number of earlier provisions creating certain rights against discriminatory or ‘adverse’ treatment - A new regulator known as the Fair Work Commission was created, replacing the AIRC. It co-exists with the Fair Work Ombudsman which is a separate agency exercising important enforcement functions and advising parties on their rights and responsibilities a. What are the means by which legislation currently affects employment conditions? What role does common law play in regulating employment conditions? - Employment in Australia is governed by a complex web of laws. The employment relationship is governed by contract law. Parties to employment contracts, however, do not enjoy complete freedom of contracts. Employers and employees can contract

above and in addition to the statutory minima provided by the legislation. That which is not touched by statutory regulation has largely been left to private regulation. 3. Identify the distinctive features of the following sources of employment law. What sorts of matters are likely to be regulated by each? What are the advantages and disadvantages of each as a means of regulating work relationships? a. express and implied contractual terms - express terms: those agreed to orally or in writing by the parties. Where a contract refers specifically to other documents these may also be incorporated into the contract as express terms. - Implied terms: it is unlikely that the parties will be able to contract for everything expressly. The law fills the gap in the contract by implying terms. This will be based on the intentions of the parties to ensure that their contract operates effectively. The customs of a particular industry may be implied into a contract, and terms may be implied by law. b. equity - equity is the separate body of law developed in the Court of Chancery, which corrects the rules of common law. Employment relationships are fiduciary relationships recognised by equity. c. legislation (statutes and regulations) - there is extensive state and Commonwealth legislation that applies to employers and employees and, to a much more limited extent, independent contractors. - Legislative provisions apply to the employment relationship irrespective of the intentions of the parties in that relationship and independently of them. - Legislation has a protective function. This reflects the need to protect employees from the effects of the inequality of bargaining power. - Legislation also has to function of creating new obligations, rights and remedies, it overcomes the perceived shortcoming of the common law, and provides machinery for regulating the terms and conditions of employment. d. awards and collective agreements - usually collective agreements, although provision is made in the Workplace Relations Act for making individual agreements that override awards. Awards and properly certified agreements are not themselves laws, but take their legal effect from the statute which they are made - An award is a written determination of an industrial tribunal. It is generally made following arbitration by the tribunal to settle an industrial dispute. - An agreement can be registered or unregistered. Collective agreements are made by negotiation between a union, or a group of employees and their employer. - Unregistered collective agreements do not themselves give rise to legally enforceable rights. e. international labour standards - international bodies involved in the development of international standards in employment and industrial relations exist. - The most important of them is the ILO, which develops labour standards through annual conferences. f. summarise the relationship between the sources. - Case law has been concerned with whether award terms are incorporated automatically. Principles governing the interrelationship have been settled by the HC in Byrne - Statutory instruments and common law contract:

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o Legislation providing for entitlements such as annual and long service leave, minimum wages and similar benefits will operate irrespective of any contrary term in the contract that purports to reduce the statutory benefit (Federated Seaman’s) o The same is true for terms and conditions set down in awards and registered industrial agreements. Are the terms of the award or agreement imported into the contract of employment? o Cases of Gregory v Philip Morris and Byrne case

The Employment Relationship: 1. What factors do the courts consider to be significant in determining whether a relationship of employer and employee exists in particular circumstances? Why are these factors considered relevant? - The earliest test for determining whether the person was an employee was the control test. It emphasised the capacity to direct not only what work was to be done but how it was to be done. - Denning LJ championed the organisation test. Whether an employee/employer relationship exists depends on whether the person is part and parcel of the organisation. - The courts now use a multi-factor test: o Personal relationship o The irreducible minimum-mutuality of obligation o Joint employment: authorities assume that there is just a single employer. o In business on their own account o Control o Performance of work for others o Separate place of work and advertises services o Provision and maintenance of significant tools and equipment o Right to delegate or subcontract work o Representation as part of the employer’s business o Taxation o Remuneration or paid by result o Right of suspension or dismissal o Holidays and sick leave and other payments 2. How were the tests applied in these cases? (a) Zuijs v Wirth Brothers Pty Ltd - A circus trapeze artist was injured in a fall while performing. The court held that he was an employee and therefore entitled to workers’ compensation. The court noted that in regards to the control test: o What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters. o The fact that the performance of a task depends on a natural gift or on some laboriously acquired accomplishment does not necessarily mean that the performer cannot be a servant. (b) Stevens v Brodribb Sawmilling Co Pty Ltd

Of the two concepts (control or organisation), legal authority to control is the more relevant and the more cogent in determining the nature of the relationship. (c) Hollis v Vabu Pty Ltd (cf Reliable Couriers, Macken p 36) - The assessment of the totality of the relationship takes into account a range of factors relevant to the particular circumstances of the case, with the weighting and range of factors varying from case to case and sometimes pointing in opposing directions. What were the significant facts which led to each decision? How can the different results in these cases be reconciled? Do you think that the answer given in each case was appropriate and fair? 3. Watt was employed in 2008 by Electra Ltd. as a qualified electrician, then transferred to the Electrical Appliances Store as a customer service technician. He was with the company for four years and was then laid off because of a shortage of work. He was recalled on one or two occasions in 2012 and was trained to install home theatre television equipment. At this time he was paid on an hourly basis. Later in 2012, Watt was again retrenched. The next year (2013) he was recalled but this time a new arrangement was entered into: he was to do exactly the same work but for a fixed price per set installed. He continued to install the sets as he had been taught. The company provided the necessary specialised equipment and gave him a new customer once he had finished each installation, but Watt could work in his own time and he provided his own transport. There was no written contract. On 1 March, while carrying a television set into a house for installation, Watt collided with John Walker, a pedestrian walking along the footpath outside the house. He dropped the television set on Walker's foot, which caused three bones to be broken. John Walker sues Electra Ltd on the basis of Watt's negligence. The company says that Watt is not an employee. Was the relationship created by the 2013 arrangement that of employer and employee or principal and independent contractor? What is the significance of the distinction in relation to legal consequences that may flow from the relationship? -

4. Jay is a maintenance and repair worker who trades under the name "Jay's Jobs". He derives approximately 80% of his income from Next Century Ltd, a high technology research company based in Wollongong, which calls him in when problems arise. He has been involved with Next Century Ltd in this way for over 4 years. Because the equipment he repairs is specialised, Next Century Ltd provides most of the tools and the replacement materials required. Whenever he is working at Next Century Ltd, Jay is supervised by the relevant engineer responsible for the equipment to be repaired. This engineer is responsible for ‘signing off’ on all work done by Jay, and if Jay’s work is not satisfactory he must rectify any faults before he is paid. One day, while repairing a sophisticated piece of machinery with which he was unfamiliar, an explosion occurred, severely injuring Jay. Is Jay entitled to workers' compensation as an employee? 5. How significant is an express contractual statement of the worker’s status in determining whether they are an employee? When is the relationship likely to be uncertain or ambiguous? The parties to the contract may expressly declare that the contract does not create an employer-employee relationship and that the party providing the services is a self-employed independent contractor. The terms of the contract are relevant but this does not mean the parties can alter the reality of what is in a contract of employment.

Where there is no written contract, or the contract is only partly written, ambiguity may be resolved oral statements and the parties’ conduct. 6. What developments have occurred in working patterns over recent decades? Why have they occurred? What are the implications of these changes for the common law tests for the employment relationship? - Increased flexibility over the last 20 years. - Changes to the standard pattern of full-time employment, traditionally permanent, Monday to Friday 9am to 5pm. - The modern workforce is characterised by high mobility. - Shift to high levels of part time and casual employment, fixed term contracts, outsourcing of work, the use of labour hire agencies, together with an increased use of contractors rather than employees. 7. What do the textbook authors mean by ‘labour hire’? What forms does this take? What is outsourcing? Why does it occur? What social and industrial relations issues are involved in outsourcing and use of employment agencies? How do the common law tests for the employer-employee relationship apply to agency labour and similar vicarious employment? Is the common law capable of adapting to these new forms of work? - a labour hire arrangement is where ‘a firm receives commission from a client firm in return for supplying labour to that client for a limited period. It may arrange placements for employees, self-employed contractors, trainees and apprentices’ - one common arrangement is employee service models. Where a person is employed as a casual employee by an agency or labour hire company which in turn arranges work with a client (host business) - a second common arrangement is where the worker is an independent contractor and not an employee of either the agency or its client. This is known as the Odco model. - Agencies may also provide recruitment services. 8. Discuss the legal position of agency workers in relation to: (a) Building Workers’ Industrial Union v Odco Pty Ltd - The agency workers were held not to be employees of the agency or the host business. The contract between the workers and the agency made it clear that they were not employees. The workers were not paid a weekly wage nor did they receive usual leave and other employee entitlements among other factors. - Following the Odco case, labour hire arrangements adopted what is known as the Odco contract. (b) Forstaff Pty Ltd v Chief Commissioner of State Revenue - Where a casual works over an extended period of time, this is generally characterised as a series of separate employment contracts rather than a single continuous contract of employment. o ‘the irreducible minimum of mutual obligation necessary to create a contract of service…should be expressed, not as an obligation on the one side to provide and on the other to perform, but as an obligation on the one side to perform work and on the other side to pay.’ What was unusual about the arrangement in Odco? Is this kind of arrangement likely to become more normal or are there reasons why it might be exceptional as a form of agency hire? 9. What matters are significant in distinguishing between an employee and: (a) a company director - the degree of control exercised over the shareholder employee is always important. It may be appropriate to consider whether there are directors other than or in addition to the shareholder employee and whether the constitution of the company gives that

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shareholder rights such that he is in reality answerable only to himself and incapable of being dismissed (Secretary of State for Trade and Industry) factors considered relevant are found on page 55. (b) a bailee a long stream of authorities establish that where the taxi driver is free to ply for hire under a leasing agreement, the driver will be regarded as an independent contractbailee rather than an employee. (c) a tenant in NSW, the Residential Tenancies Act 2010 s 9(1) provides that an agreement where the employee is also given tenancy to live in during the employment is considered a residential tenancy agreement. (d) an office holder

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(e) a partner Control dependency test in Canada. Control over workplace conditions and remuneration is with the partners who form the partnership. the orthodox view is that someone cannot be a partner and an employee

When is it important that such distinctions be made?

Day 2: the employment contract and content: 1. Explain the following contract law concepts, and when they are likely to be relevant to the employment relationship, giving examples: a) Intention to enter into legal relations; Capacity; - The parties must have a mutual intention to create a legally enforceable bargain. - in the employment context if the putative employee is subject to control relating to the work, wages and leave entitlements are paid etc. it would be difficult to argue contrary to the objective facts that there is no intention to create a legal relationship. (Adelaide Hebrew) - both parties must have contractual capacity generally and as to the particular contract - at common law, two categories of contract are binding upon a minor: contracts for the supply of necessaries to the minor, and contracts that are for the minor’s benefit (Minors (Property and Contracts) Act 1970) b) Offer and acceptance; - The agreement should be made by way of an offer made by one party and accepted by the other party. - An employer will not be held liable to pay for services that are performed other than as a result of a communicated offer c) Consideration; - Requirement that the contract be supported by some valuable consideration, ‘the price tag on the promise’ - In the employment context, a promise to perform work in exchange for a promise to pay wages constitutes a valuable consideration. d) Genuineness of consent – mistake and misrepresentation; - The doctrine of mistake refers to the two areas where it might be important: identity or where there has been a failure to disclose information by the employee. - a mistake of identity may lead to the contract being unenforceable. The mistake of information does not allow a party to avoid a contract: a party may observe silence to facts which he believes would be operative on the mind of the other (Bank of Credit v Ali) - misrepresentation as to a term of a contract of employment will allow the party who has been misled to avoid the contract (Redgrave v Hurd) e) Duress and undue influence, unconscionability; - A contract of service that has been entered into under duress or by reason of undue influence can be regarded as at an end or continuing at the option of the party who has been under compulsion - Duress is actual or threatened violence or imprisonment directed to a party to the contract or the someone they know - undue influence occurs where there is such influence exercised over the will of one of the contracting parties that the plaintiff’s ability to make decisions is impaired. - In the employment context, unconscionability rarely arises as the bargaining power of the two parties does not constitute a special disability f) Illegality (unlawful contracts). - The last element in a valid contract is that it must not be entered into for illegal consideration nor have for its object a purpose which is either illegal or contrary to public policy. - Employment contract found to be illegal in the requisite sense are void and unenforceable.

What remedies are available in relation to these doctrines? Are these doctrines likely to be of practical use for an employee who is in dispute with their employer? 2. Jill completed a media degree and after several years working in public relations was employed as a Senior Reporter for the "Nightly News". At the time of her appointment Jill understood (from conversations with the TV station’s personnel manager) that she was to be the station’s Social Reporter but this was not stipulated in her written letter of appointment. After two and a half ye...