HSC Legal - Workplace Law PDF

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Course notes for options topic: workplace law...

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Workplace Law The changing nature of workplace law over time Workplace law regulates the relationship between employees and employers, ensuring the rights of workers are protected. - In medieval times there was a feudal system with no recognition of workers rights. - As a result of the industrial revolution people were required as a labour force for the new factories being built - During this period the conditions of employment were harsh, the hours long and the work was often dangerous. - The doctrine of laissez-faire is that employees and employers should be free to make whatever arrangements they wish without government control. Laissez-faire allowed poor conditions to exist because the government did not intervene. Tolpuddle martyrs was the first attempt of a trade union. The tolpuddle were sent to Australia as convicts where they then brought these ideas to Australia. -

A number of Factory Acts 1833 were passed to regulate conditions of workers, marking a departure from the doctrine of laissez-faire Trade unions began to form and social and community pressures meant that it was no longer accepted that a contract of employment was a bargain between two equal parties. From that time the government began to interfere and regulate to promote the welfare of the people. Collective bargaining was eventually recognised and the workers’ representatives, the trade union, were bargaining with the employers for improved pay and conditions. As an outcome of society’s recognition of the injustice of the industrial revolution towards the working class, people demanded change. As the society evolves the law follows in its wake. Consequently, workers’ compensation legislation was introduced to make the industry carry the cost of accidents for injured workers (first OHS Law)

James V Price 1773: Lord Mansfield said “the more we look into law, the more it appears founded on equity, reason and good sense” -

Over the 19th and 20th century has been an enormous expansion of the role of Government for the greater good of community. There has been in the late 20th and 21st centuries a turning back of the role of government. - There is now a view that the government must withdraw from some areas and allow individuals to make decisions without regulation. Eg. Work Choice Legislation 2005.

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As a result, there is now a greater role for individual contracts between employers and employees.

Shearers Strike Harvesters Case: Justice Higgins decided what was the basis of the national minimum wage system in Australia. Workplace Relations Amendment (Work Choices) Act 2005 - New workplace relations system - Improved employment levels and national economic performance Fair Work Act 2009 - Replaced the Workplace Relations Act 1996 Cth - Introduced NES - Created Fair Work Australia - Created good faith bargaining and the workplace ombudsman

Caselaw: 7/11 According to 2015 Four Corners episode - Workers underpaid, blackmailed, paid half the award wage - Students immigrated from overseas can only work 20 hours a week, but 7/11 was offering them more hours. This is illegal so the workers stayed quiet because it would jeopardise their visa. - 7/11 management admitted to the court that non-compliance with workplace laws was relatively common among 7/11 franchises. Response - Investigation by the FWO found the operators had deliberately falsified information about number of hours being worked and the rate of pay - Magistrate said “compliance should not be seen as the bastion of the large employers with human resources behind them” - Reinforces the need for business to understand Australian workplace laws and observe compliance obligations - Reforms proposed by 7/11 - Establish a compliance team to detect and report non-compliance - Education campaign to ensure franchisees and staff are aware of their obligations and entitlements - Harmonisation of two relevant industry codes (the oil code and the franchise code). Varying provisions complicates the rights of the parties. 7/11 Wage Claims Program - Franchisees may acknowledge a claim and agree to rectify the underpayment - Equally, they are also within their rights to dispute the claim - Where a franchisee disputes the claim, 7/11 cannot proceed further.

Contracts Recent reforms in OHS has meant that the difference between ‘of and for’ is reduced and employers will be held liable for the actions of anyone on their site.

Of service -

Employer is vicariously liable Has entitlements such as sick leave, holidays leave, workers compensation, minimum conditions (wage, hours of work) Protected against unfair dismissal

For service -

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Independent contractor Conditions of an agreement may include: - Contractor providing their own tools and services - Has agreements with others also - Operate through a business name or company - Contractors do not have any ‘entitlements’ listed above Are held liable for damage caused during work

Case Law: Uber (AFR, Jan 2018, Uber wins Fair Work Commission case over drivers' employment rights) - Kaseis applied under the fair work act 2009 for an unfair dismissal remedy - Uber argued that the applicant’s application should be dismissed on the grounds that he was employed as an independent contractor (contract for service) - The FWC upheld that Uber’s arguments that drivers are not employees, and are independent contractors - This decision may indicate that other platform-based workers are likely to be considered to be independent contractors - The development of the ‘gig economy’ as a result of rapid technology development has led to many companies such as Uber to operate on the basis that its drivers are independent contractors - This is the first decision in Australia of the employment status of workers in the gig economy. The decision may set a precedent that other platform-based workers are likely to be considered as independent contractors

Express and implied terms Implied duties An implied term is a promise that is binding on the parties to the contract, even though the parties have never discussed it. For an employer: - Provide work - Pay wages - Vicariously liable for actions of workers

Expressed duties An express term is one that is usually spoken or written into a contract. - Sick leave - Holiday leave - Workers compensation - Superannuation - Pay rate

Awards and agreements Awards are the minimum terms and conditions that must be included in a contract. - Used to be over 3000 individual awards, now there are 122 - This harmonisation of awards makes award standards more accessible and less convoluted, increasing compliance

The Fair Work Act 2009 is the basis for the ongoing creation and variation of modern awards - Determined by a tribunal or commission as FWC can make, vary and revoke modern awards. - Must be reviewed every four years - The award has the force of law and must be complied with and enforced.

Statutory conditions Both state and federal governments have legislated to enforce minimum terms in an employment contract including the hours of work, holiday provisions, leave entitlements and OHS standards - Over the last decade there has been a political movement to reduce the role of governments in their relationships

10 National Employment Standards (NES) -

Maximum weekly hours Annual leave Long service leave Notice of termination Employers must ensure workers’ compensation which is a compulsory insurance to compensate employees injured at work

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 - Employers who don't meet record keeping or payslip obligations and can't give a reasonable excuse will need to disprove wage claims made in court (reverse onus of proof) - The reverse onus of proof indicates the seriousness of workplace issues and dedication of the government to cracking down - Strengthened powers to collect evidence in investigations - Introduce new penalties for giving false or misleading evidence, or hindering investigations - Also now means that franchisors can be held responsible if their franchisees or subsidiaries don't follow workplace laws and they knew about it. - There is a tension of interest between the success of small businesses and the need to oblige to ethical workplace conditions Exploitation of Woolworths cleaners ‘FWO uncovers rampant exploitation in Woolworths cleaning supply chain’ (AFR, Feb 2018) - In february 2018, FWO commenced an inquiry into cleaning arrangements in Tasmanian supermarkets in response to allegations of underpayment - The inquiry focused on 55 supermarkets - The inquiry found that Woolworths’ approach to procurement and oversight of its cleaning contracts had contributed to a culture of non-compliance - Non compliance at 90% of Woolworths in the state

“Woolworths should have been putting the same effort into monitoring its contractors’ compliance with workplace laws as it did into scrutinising the cleanliness of their stores” (Natalie James FWO) - As a result, Coles, IGA and Woolworths became members of the Cleaning Accountability Framework

2. Regulation of the Workplace Workplace law regulates the relationship between workers and the people and organisations that employ them.

State and federal framework -

Most employment law is now regulated by the Commonwealth under the Fair Work Act 2009 Cth, after the states agreed to refer their constitutional powers. - Up to 85% of employees became subject to federal legislation with the passing of Work Choices Act 2005 - This represented a major shift in the separation of power between state and federal governments in industrial relations - Fair Work Act 2009 has an even greater coverage than Work Choices because from 1 January 2010, all states except WA referred their industrial relations powers to the Commonwealth, creating a new national industrial relations system. The system does not cover: - State and public sector - Some contract workers such as truck or taxi drivers remain under NSW legislation Federal framework - Fair Work Commission - Fair Work Ombudsman Under the Fair Work Act 2009 NSW Framework - Industrial Relations Commission Under Industrial Relations Act 1996 NSW

Negotiations between employers and employees -

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Enterprise bargaining is the process of negotiating generally between employer, employee and their bargaining representative with the goal of making an enterprise agreement. Fair Work Act imposes a positive obligation to bargain in good faith The objective is to help agreement by encouraging the parties to communicate openly and honestly to focus their negotiation on key issues

Enterprise agreement -

An enterprise agreement is between on or more national system employers and their employees - Enterprise agreements are negotiated by the parties through collective bargaining in good faith - Under the Fair Work Act 2009, an enterprise can mean any kind of business, activity, project or undertaking An enterprise agreement must include: - Terms about the relationship between each employer and the employees - An expiry date for the agreement - A dispute settlement procedure, authorising either the Fair Work Commission or someone else - A flexibility term that allows for the making of individual flexibility agreements for the purpose of meeting the genuine needs of the employer and employees - A consultation term which requires the employer to consult their employees about any major workplace changes, and allows the employees to have representation in that consultation Single enterprise agreement Made between a single employer and employees - Single interest employers and employers that are in joint venture or common enterprise or are related corporations Multi-enterprise agreement - A multi-enterprise agreement is made between two or more employers and employees Greenfields agreement - Enterprise agreement that is made in relation to a new enterprise of the employer or employers before any employees are employed - Can be either a single enterprise agreement or a multi-enterprise agreement - The parties to a greenfields agreement are the employer and one or more relevant employee associations (usually a trade union).

Industrial action Industrial action can take a variety of forms. For example, employees may go on strike or impose work bans, employers may lock out their employees. Lock-out - Employers closes work premise or refuses to allow employees to work - Aimed at forcing workers to accept certain conditions Work-to-rule - Workers refuse to perform tasks outside the guidelines of their jobs Pattern Bargaining - When a bargaining representative seeks common terms in enterprise agreements. - Illegal unless the trade union is genuinely trying to reach an agreement

Protected industrial action - For industrial action to be lawful it must be protected industrial action The requirements for taking protected industrial action include: - An existing requirement has passed its normal expiry date - The industrial action is in support of a new enterprise agreement - The industrial action is in support of a new enterprise agreement - Fair Work has granted an order for a protected action ballot to be held and the ballot has endorsed action being taken - The bargaining representatives organising the action must be genuinely trying to reach an agreement CFMEU v Woodside Burrup Pty Ltd 2010 - The Construction, Forestry, Mining and Energy Union was acting as a bargaining representative for twelve employees of Mammoet Australia Pty Ltd, who were contractors to Woodside Pty Ltd - Bargaining for a new enterprise agreement was commenced by the employees shortly after the expiry date of the Greenfields agreement 2008 - After bargaining was unsuccessful, an order was made for protected action ballot which was approved - After 28 days of protected industrial action in 2010, Woodside and two contractors affected by the delay in Mammoet’s works made an application for an order suspending the protected industrial action because of its adverse effects on third parties - The industrial action was suspended - CFMEU appealed to FWA against the suspension - Fair Work Australia decided that the harm caused by the industrial action was not significant enough to warrant a suspension order

Dispute resolution mechanisms -

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Under both the Fair Work Act and the Industrial Relations Act 1996 NSW, all awards and agreements must contain dispute resolution procedures Consensual forms of dispute resolution include conciliation and mediation and are preferable to arbitration because they’re less expensive, and create a more harmonious and productive workplace This allows the parties to see themselves as an integral part of the dispute resolution process rather than as observers

Mediation -

A third party listens to the parties in dispute and helps them reach an agreement Mediation may become a part of unofficial workplace dispute settling procedures with a union representative acting as a mediator

Conciliation -

Third party listens to the two parties and makes suggestions in an effort to bring those parties to an agreement “FWC reported that about 59% of unfair dismissal claims were settled at conciliation” Scicluna v Australia Post employee who settled his unfair dismissal claim at conciliation later sought to have the matter re-opened - The outcome was that the employee would substitute his dismissal for a resignation.

Arbitration -

Arbitration occurs when a third party listens to the parties in dispute and makes a decision on the merits of the case

Courts and tribunals -

FWC and the NSW Industrial Relations Commission hears disputes, resolving issues through a process of negotiating and conciliating Set conditions and wages Fair Work Ombudsman enforces compliance with the Fair Work Act 2009. Also helps employees and employers by providing advice.

Fair Work Commission Independent national workplace relations tribunal - Replaced Australian Industrial Relations Commission - Conducts hearings in an inquisitorial manner - Holds informal conferences - Determines matters based on written submissions - Powers relating to dispute resolution, termination employment - Helps employees and employers bargain in good faith and to make, vary or terminate enterprise agreements - Deals with applications relating to ending employment including unfair dismissal, unlawful terminations or general protection Beard Man: James Felton v BHP Billiton 2014 “A BHP Billiton worker who refused to shave off his beard has had an unfair dismissal claim rejected by the Fair Work Commission” (ninemsn, 2015) - Mr Felton was told that his beard would prevent him from safely wearing a respirator mask - Mr felton had been working for the company for 6 years - BHP found the other type of respirator was not appropriate for the risk profile of the underground mine

Fair Work Ombudsman -

Provides assistance and advice or relevant commonwealth workplace laws Monitors compliance Investigates any act or practice that may be contrary to workplace laws

Federal Circuit Court -

Matters under the Fair Work Act 2009 Civil matters under the Work Health and Safety Act 2011 Is extremely expensive! WHO legislation was harmonised, as before it was all state-based When a union takes illegal action industrial action despite being ordered by FWC to cease the action, the employer may take the matter directly to the Federal Circuit Court - Fair Work Act also provides for certain matters to be heard as small claim matters (no more than $20 000) - Allows employees to pursue the recovery of unpaid entitlements - Proceedings are informal: no lawyer unless granted permission by court, no rules of admissibility of evidence, court can investigate a matter as it sees fit 1. If not resolved at conciliation, the FWC must issues a certificate stating the attempts to resolve the dispute have failed for the courts to consider the application 2. Courts can order a variety of remedies such as compensation, reinstatement of employees

Trade unions -

Trade unions represent workers’ interests and they work to achieve better pay and working conditions - Australian Council of Trade Unions (ACTU) is the peak body for the regulation of unions at the state and federal level - They have been critical in lobbying for better parental leave, prioritising superannuation, campaigning for increased protection for overseas workers under temporary work visas - Unions provide members with information, advice and support so that people can be fairly rewarded for their work - Unions represent over 1.6 million workers in australia - Today most Australian workers are employed with wages and conditions set by a unionnegotiated collective agreement Eg. Electrical Trades Union (ETU) Union achievements: - Shorter working hours (the eight hour day) - Fair pay and better pay (harvesters Case 1907 argued wages needed to be enough to support a family) - Holidays with pay - Equal pay for women (up until 1969 it was law that women earned 25% less than men) - Superannuation for all (law that employers pay and extra 9% above wages)

‘Business rejects Australian unions’ push for minimum wage rise’ (SMH, 2015) - ACTU calls for minimum wage to be raised 4% so as to avoid the creation of an underclass of working poor in Australia

Safety Safety in the workplace refers to the worker being provided with a safe place to work, which includes being provided with safe equipment, safe work systems, and the opportunity to access and participate in training. - Employees have a duty to work with due skill and care and are obliged to follow safety directions - Employees are also obliged to take reasonable care for health and safety at work under the Occupational Health and Safety Act 2000 NSW Workplace safety is: - Very flexible - Based on a common law duty of care. The determination of what is safe i...