HRM Assignment

Question

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Rationale:

The assignment is designed to assess the student’s understanding of the topics on the contract of employment.

Question 1.

Explain the constitutional basis for the Fair Work Act 2009 (Clth) with reference to the Australian Constitution and discuss the relationship with Australian common law, with reference to the National Employment Standards.

Question 2

What is the difference between agency employment and temporary transfer of employment where a third party is injured? Explain with reference to case law and relevant legislation.

Marking criteria

1. English – structure, spelling, and punctuation.

2. Statement of principle.

3. Appropriate common law (cases) or legislation.

4. Application of law to the facts.

5. Logic and argumentation.

6. Bibliography, referencing and table of cases/legislation.

Prescribed text(s):

1. Sappideen, C, O’Grady, P & Warburton, G (2009) Macken’s Law of Employment;

Lawbook Co.; Sydney.

2. Johnstone, P (2004) Occupational Health and Safety: Law and Practice; Lawbook Co.,

Sydney

Answer

Student’s Name:

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The Fair Work Act 2009 is new legislation that contains significant alterations relating to the way requests for flexible working arrangements are made. The alterations will apply not only to parents of all pre-school children but also all those children who are below 18 years and who have a disability.

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The act replaced the Workplace Relations Act, the infamous WorkChoices legislation that used the same constitutional backing. Stewart, (2009,p. 261) observes that Workchoices had been a revolutionary piece of legislation within the industrial relations arena since it was the first of its kind and it was heavily reliant on the power of Corporations for its validity in the Australian constitution.

In order to be valid, any Commonwealth legislation has to be supported by the constitution. In most cases, this support exists in section 51. A previous industrial relations legislation known as the Conciliation Arbitration Act has been reliant on Section 51 xxxv of the constitution, which states that the Federal Government may make laws with regard to the Conciliation and arbitration in order to prevent and settle industrial disputes that extend beyond the limits of one state.

This act has many constitutional implications for Australia. For instance, it will now be possible for any dispute over the refusal by an employer to accommodate those requests resolved by the Fair Work Australia (FWA) to be resolved through the FWA or some other individual, though this will apply only in those situations where an employer has already consented to the agreement in an employment contract or other agreement. The same case applies with regard to a refusal to allow a second consecutive year of unpaid parental leave.

However, according to the CCH (2008, p. 12), none of the various amendments made and accepted by the Australian government have in any way affected the key features of the new system. The FWA, a new body to replace the existing agencies and tribunals, has remained. The National Employment Standards (NES) continue to operate, as usual, setting minimum conditions for every national system employee.

The system of modern awards for the provision of additional safety net for various employees is still in place, commencing in January 2010. The provision for the making of various multi-enterprise or single-enterprise agreements is still in place, subject to various new obligations for the bargain in the new faith, as well as a test that requires each employee to remain better off overall compared to the way they would be under applicable awards.

The other constitutional provisions that remain unchanged include the retention of most of the restrictions that exist in matters relating to industrial action, as well as broader access to various unfair dismissal complaints, whereby employees are excluded only when they are dismissed in the course of qualifying period of their service, or if they are able to earn much more over an income threshold and are not covered under any award or agreement.

However, the Senate rejected a number of amendments. These included various proposals from the government for making it mandatory for all awards to require consultation on major workplace changes, as well as to permit all awards to include controls on the safety of all long-distance transport work.

The attempt to require all individual flexibility arrangements that vary the operation of various selected award conditions to be first lodged with the FWA was also rejected. The rejection was based on the need to maintain a constitutional basis for the act. However, the FWA remains obliged to carry out research on the use of all such arrangements. with regard to the capacity for various high-income employees to be in agreement not to be under the binding power of an award, it has now been expressly provided that it is possible for this to be arranged before the commencement of employment. However, the high-income threshold cannot be reduced from one year to the other.

The Fair Work Act 2009, according to Owens & Riley (2009, p. 74) also provides a sound constitutional basis for the meaning of both the national system employee and employer to be properly understood. Transition matters between employees and employers, according to Roan (2009, p.401), are addressed in accordance with the provisions that are made in the constitution. On the same light, the ordinary meanings of an employee and an employer are also addressed. Other definitions include the meaning of a full rate of pay, the base rate of pay, child of a person, industrial action, ordinary working hours, pieceworker, small business employer, as well as service and continuous service.

Even with the Fair Work Act (2009) already in place, the Australian common law contracts of all types of employment will continue regulating nearly all employment relations. Stewart (2009, p. 11) notes that this scenario will remain in place, notwithstanding the formation of ‘Modern Awards’ since January 2010 by the Australian Industrial Relations Tribunal.

According to Stewart (2009, p. 187), common law employment contracts can never provide terms that are less beneficial to an employee in comparison to the national employment standards or even the applicable Modern Award. However, no standards can be enforceable on the basis of contractual terms except in situations where they have been expressly incorporated into the relevant employment contract.

Waring (1999, p.253) notes that in the majority of common law contracts, the entitlement redundancy becomes inadvertently incorporated or an employer maintains a deliberate redundancy policy. This will be occurring with the enactment of the Fair Work Act 2009. This will be occurring in situations where an employee is required in a contract of employment to ‘comply with’ or ‘abide by’ employer policies. The employee will still maintain entitlements to redundancy even in situations where the employer considers the retention of discretion to continue influencing such a policy. Alternatively, it may be possible to incorporate a policy by custom as well as usage in circumstances where the policy is available on the website of a company and it is being consistently complied with.

What is the difference between agency employment and temporary transfer of employment where a third party is injured? Explain with reference to case law and relevant legislation.

Employment through the help of agencies is a common phenomenon today. In high-skilled occupations, agency employment is increasingly being used in order to help avoid raising wages for all their regular workers as well as to fill vacancies while they are recruiting workers for permanent positions.

Johnstone (2004, p. 18) notes that much of the argument on temporary transfer of employment in situations where a third party is injured is directed towards the legislative power that section 51(xx) confers, as well as the relationship between section 51(xxxv) and Section 51(xx). In their argument, plaintiffs tend to claim the use of corporations’ power by the Commonwealth in order to underpin a framework for various workplace relations is constitutionally impermissible. According to Sappideen, O’Grady, & Warburton, 2009, p.7), this claim has tended to involve arguments both specifically as to the potential use of it by parliament for the regulation of direct relations between corporations and employees as well as generally with regard to the scope of corporations power.

Wooden (2006, p. 101) observes that the issue of the temporary transfer of employment is a relevant one for Australia, considering that there are many migrant workers who engage in temporary employment contracts. The services of these workers are of great significance to the economy, considering that they bring about a significant image of Australia being an advanced economy (UK Low Pay Commission, 2005).

Ryan (2009, p.14) observes that the Work Choices Act is the most significant piece of legislation for overseeing the temporary transfer of employment in the event that a third party is injured. The legislation focuses on the employment relations between corporations and their employees. It establishes the minimum ordinary working hours, entitlements of employment rating, annual leave, parental leave, personal leave, and related entitlements, the majority of which had been initially been incorporated in the industrial relations awards.

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The Work Choices Act also paved the way for the establishment of the Australian Fair Play Commission AIRC). It also provided for workplace agreements involving situations where a third party is injured. This act means a lot for labor regulation in Australia, particularly with regard to the federal labor issues that are underpinned by industrial arbitration power.

However, notes Ronald (2009, p.209), in the absence of the act, ‘alternative’ powers were being used in different ways in order to extend the reach of dispute resolution as well as the agreement-making system in case a third party is injured. Similar approaches were also being used to regulate superannuation, extend the reach of dispute resolution, in a manner that was impossible under the arbitration power.

In the NSW & Others v Commonwealth [2006] HCA 52, the high court ruled that Work Choices legislation that was held 5:2 was constitutionally valid, and all challenges were rejected. The two main questions that arose in the high court related to the corporations’ power. First, the question was whether it is broad enough to offer support to laws that regulate the relations between various ‘constitutional corporations’ and all their employees. The second question was whether the power should be ‘read down’ or just limited in order to avoid overlap or conflict with the existing industrial arbitration power.

References

CCH, Australian Master Human Relations Guide, CCH, North Ryde, 2008.

Owens, R & Riley, J The Law of Work, OUP, South Melbourne, 2009.

Roan, A T ‘Australian Workplace Agreements in Practice: The ‘Hard’ and ‘Soft’ Dimensions’, The Journal of Industrial Relations, Vol. 3, No. 43, 2009, pp. 387-401.

Ronald’s, C Discrimination Law and Practice, The Federation Press, Sydney, 2009.

Ryan, M ‘Workplace Relations Reform, Prosperity and Fairness’, Australian Journal of employment, Vol. 2, No. 3, 2009, pp. 11-18.

Sappideen, C, P O’Grady, & G Warburton, Macken’s Law of Employment, Lawbook Co., Sydney, 2009.
Johnstone, P Occupational Health and Safety: Law and Practice, Lawbook Co.,
Sydney, 2004.

Stewart, A Stewart’s Guide to Employment Law, (2nd ed., The Federation Press, Sydney, 2009.

Stewart, ASenate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Amendment (State Referrals and Other Measures) Bill 2009, Submission to State Referrals Bill Inquiry, November 2009.

Stewart, A The Work Choices Case: What it Means for Labour Regulation, Flinders University & Piper Alderman, 2009 Constitutional Law Conference.

UK Low Pay Commission, National Minimum Wage: Low Pay Commission Report 2005, HMSO, London, 2005.

Waring, P ‘Dismissing the Unfair Dismissal Myth’, Australian Bulletin of Labour, Vol. 25, No. 3, 1999, pp. 251-274.

Wooden, M ‘Implications of Work Choices Legislation’ Agenda, Vol. 13, No. 2, 2006, pp. 99-116.

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