07WORKPLACE AND THE LAW

2 UNIT LEGAL STUDIES

ASSESSMENT TASK No.4

WORKPLACE AND THE LAW

RESEARCH ESSAYBY: RIZWAN ZAFAR

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Workplace law and the relationship between employers and their employees have undergone significant change. Employers now play a far greater role in providing safe working conditions, free of discrimination and harassment. These changing roles have come about due to the growing number of workplace laws.

Employees are people who have agreed to work for someone in return for something, usually money. An employer is the person who has employed the employee. These two generally work together in a workplace environment governed by Federal and State laws and Commonwealth legislations.

In order for the law to be effective in addressing issues, it must recognise and balance the rights and values of employers and employees along with the rights and values of the community to achieve justice for all. This is especially apparent in issues regarding the workplace, specifically in the areas of safety and dismissal where the legal system has had to respond to changing societal standards regarding what is considered safe and what is appropriate in terms of dismissal. Many remedies have been developed to both reduce the risk of injury in the workplace and compensate those who have been injured, through the use of both common law and statutory rights and duties. In much the same way, legislation and common law have acted to support workers dismissed through redundancy as well as help those dismissed wrongfully.

Common law states that employers must provide a safe working environment with competent staff and take all reasonable precautions to protect employees from reasonably foreseen dangers; this was tested unsuccessfully in the case of Australian Iron and steel Ltd vs. Krstevski (1973). The Robens (1972) and Williams (1981) reports changed the focus of work safety onto self-regulation and cooperation, resulting in the Occupational Health and Safety Act 1983 (NSW), amended in 2000. This Act encouraged consolidation between employers and employees with fines for breaches of safety standards, however after continuing workplace deaths; it was amended again in 2005 to bring in harsher punishments including 5 years jail for those who ignored workplace legislation. The Robens Report and The Williams reports also led to the Workers Compensation Act 1987 (NSW) and the introduction of the Workers compensation scheme and Work cover (the NSW govt body that administrates the scheme), which protected “employees injured out of or in the course of employment” This statement has been tested numerously first in the Stevens vs. Bodribb Milling Co Pty Ltd 1986 widening what constituted an employee, then in the Bill Williams Pty Ltd vs. Williams 1972 and Weston v Great Boulder Mines Ltd 1964 cases showing the subjectiveness of employment and thus the introduction of the 1997 Amendment.

For the law to be effective in protecting rights and values for the individual it must apply to all people equally, regardless of the work being undertaken . However there is infectiveness towards equality. The employer of the business is in a stronger negotiating position than the employee and can arrange what could appear to be unfair contracts with employees. The legal system must also be accessible for all; here the law has been relatively effective as all people can freely join unions to gain legal advice, however groups such as migrant workers or non-English speaking workers may have problems accessing it. New efforts such as the creation of 25 more work safety inspectors in 2000 show improvements in the enforceability of workplace safety law, though it is still quite in-effective as courts often do not follow through with penalties. In terms of Resource efficiency, institutions such as trade unions and work cover have made making claims much more cost effective were they previously would have had to sue through the court system.

When balancing this with the rights and values of the community, there are both positives and negatives. While workers comp for example is a growing burden on society in terms of resource

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07WORKPLACE AND THE LAW

efficiency, it allows employers to re-employ rehabilitated, experienced workers, foregoing the need to retrain workers, a benefit for society. This is also a reflection of community expectations, if the law did not provide for those injured at work; there would most likely be public uproar. The workplace Relations Act provides a safety net of basic conditions for the employee however the concept of vicarious liability means that all employers are held responsible for workplace malpractice. Another key effectiveness in achieving justice is that Unions ensure that all members have access to legal advice and that there are avenues in place for redress if an employee is wrongfully dismissed.

Another area in which rights and values need to be recognised and protected in the workplace is in the occasion of unfair or wrongful dismissal. Introduced under the Workplace Relations Act 1996 (Cwlth) wrongful dismissal occurs when an employee has been dismissed either summarily or with notice in a “harsh, unjust or unreasonable” manner. Wrongful dismissal can also be illegal if it was on the grounds of pregnancy, gender, race or union membership. This can be seen in the case of Municipal Administrative clerical services union v Ansett Australia 2000, were a worker was dismissed for union involvement.

Remedies for wrongful dismissal include suing the employer through the common law court system if there has been a breach of contract of employment and the employee is not covered by an award or AWA. Here the employee can be paid wages owed, damages or be reinstated. The NSW Industrial Relations Commission under the Industrial relations Act 1996 can hear complaints by workers covered by a state award and can order payment of wages owed or reinstatement after a conciliation and if necessary arbitration hearing, judged on whether the employee was given warning, a chance to defend their actions or a genuine reason for dismissal.

The Federal court can also hear disputes on dismissal brought by workers under federal awards after negotiation and conciliation has failed, this can be seen in the case of Byrne v Australian Airlines Ltd (1994), where unfair dismissal was ruled as Byrne had been denied procedural fairness. Where there has been illegal dismissal, not only can the employee sue for damages, but the employer may face penalties under the Workplace Relations Act 1996 (Cwlth), Racial Discrimination Act 1975 (Cwlth), Sex Discrimination Act 1984(Cwlth) and The Anti-Discrimination Act 1977 (NSW).

When evaluating the effectiveness of the law in recognising and protecting the rights and values of the individual within unfair dismissal, not all are treated equally and given the same access. Trainees, probationers and casual workers employed for less than 12 months cannot bring claims to the federal court, if these workers are covered by awards, nor can they dispute through the common law court system, leaving limited options available and displaying the ineffectiveness of the legal system. Apart from these draw backs, filing for wrongful dismissal is quite resource effective and protects individual rights and values effectively.

In terms of protecting and recognising the rights and values of society the law is quite effective as it reflects community standards against discrimination based on race gender, culture or sexuality, many of which groups such as people with same sex preferences, or migrants are on the rise in Australian society. There is much opportunity for appeal and review for those who meet the specifications to utilise the high court, but not so much for those who don’t, exemplifying ineffectiveness in the Legal System. The mechanisms to deal with disputes over unfair dismissal are usually quite cost effective, as all complainants must attend negotiation and conciliation before going to court, which can be quite expensive.

The most significant legislation The Workplace Relations Act 1996 , as amended by the Workplace Relations Amendment Act 2005, or Work Choices, which came into effect in March 2006, was a policy

07WORKPLACE AND THE LAW

which involved many controversial amendments to the Workplace Relations Act 1996, the main federal statute which regulated industrial relations in Australia.

Work Choices was passed by the Howard Government in 2005 and was said to improve employment levels and national economic performance by dispensing unfair dismissal laws for companies under a certain size, removing the "no disadvantage test" which had sought to ensure workers were not left disadvantaged by changes in legislation, and requiring workers submit their certified agreements directly to Workplace Authority rather than going through the Australian Industrial Relations Commission . Additional factors aimed at increasing economic performance included clauses significantly compromising a workforce's ability to legally go on strike, requiring workers to bargain for previously-guaranteed conditions without collectivised presentation, and significantly restricting trade union activity and recruitment on the worksite.

Work Choices was a major issue in the 2007 federal election, as the Australian Labour Party (ALP) vowed to abolish it. The Australian Labour Party subsequently won the election and changed the legislation.

A key objective of the Fair Work Act 2009 is achieving productivity and fairness in the workplace through the implementation of collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action. Fair Work Australia is the national workplace relations tribunal that was established by the Rudd Government under the Fair Work Act 2009.

The Fair Work Act established a new system of regulation that attempted to create a more national system for regulating industrial relations in Australia. Each state has the discretion to hand over some or all of their industrial relations powers to the Commonwealth, and should a state decide to refer their powers to a centralized and national industrial relations system, all the employees of that state will effectively be covered by the national Fair Work Act. This new national body has taken over the roles of the Australian Industrial Relations Commission (AIRC) in the workplace when dealing with workplace dispute and industrial actions, and in the process determining national industrial relations policies that include setting minimum wages and regulating the award system. Since the introduction of the Fair Work Act, all states have referred their powers to the Commonwealth with the exception of Western Australia.

Another very important aspect of workplace law is the contract of employment. The employment contract is basically a legally binding agreement between an employer and an employee. It is also known as a contract of service. This contract of service contains the rights and duties of an individual employer and employee. When an employee accepts a specific offer of employment (oral or written), a contract of employment has been established. Under this contract, both the employer and employee have certain rights and obligations.

The types of employment contracts are common law contract of service, common law contract for service and Australian workplace agreements. Under a contract of service an employer is required to provide an employee with safe working conditions under various legislations that cover employee-employer relationships. A contract for services is also known as an independent contract of service arises when a person agrees to do one or more specific tasks for another person.

In conclusion I believe the law is effective in achieving justice for employers and employees in The Australian Legal System. This is mainly due to the industrial relations system where it outlines the contract of employment which outlines rights and duties.

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APPENDIX/ ADDITIONAL INFORMATION:

LEGAL ENVIRONMENT: Workplace Relations Act 1996- The Act preceding the Fair Work Act 2009 Work choices Bill 2005 Workplace Relations Regulations 2006 - Regulations associated with the Workplace Relations

Act 1996 Transitions Bill 2008 Forward with Fairness 2010 Fair Work Act 2009- The main legislation under which Fair Work Australia (FWA) operates.

Set by the Australian Parliament

POLICY FOCUS:- Work choices individual- Forward with Fairness collective

FORWARD WITH FAIRNESS 2010 AMENDMENT:The new changes with the introduction of the bill include

Abolishing of AWAs 10 National Employment Standards Modernisation of awards Flexibility clauses Reintroduction of Unfair Dismissal Rights Restrictions on Union activity

Industrial Action (mandatory secret ballot) Right of entry Limitations on pattern bargaining

Independent Contactors Act Enables employees to be independent contractors

COMPARISON TABLE BETWEEN HOWARD LEGISLATION & THE RUDD GOVERNMENT

HOWARD RUDD In 2005, the Howard Government’s Work Choices reform package contained a proposal to create a national system through a referral of powers by the states. However, the states disapproved of the proposed reforms and they rejected this offer. The Howard Governments new Work Choices laws, in force in 2006, applied to all trading and financial corporations and their employees. This covered about 78 per cent of private sector (non-managerial) workers in Australia.

In 2008, the new Rudd Government began implementing its 2007 election policy, Forward with Fairness. On the agenda was the creation of a simpler and, it was argued, fairer industrial relations system, including repealing some elements of Work Choices, and working with the states to achieve a national industrial relations system for the private sector.

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BIBLIOGRAPHY: INTERNET:-

1. http://www.dfat.gov.au/facts/workplace_relations.html Australian Government Department of Foreign Affairs and TradesInformation on Industrial Relations System- Accessed website on Saturday 10th of July

2. http://www.industrialrelations.nsw.gov.au/Employers/Employer_responsibilities.html NSW Government: Industrial Relations Information on NSW legislation- Accessed website on Saturday 10th of July

3. http://www.legalanswers.sl.nsw.gov.au/resources.cfm/generalID/8/subjectID/128/ Information on HSC Legal Study Resources-Accessed website on Friday 14th of May

4. http://www.airc.gov.au/

Australian Industrial Relations Commission (Cwlth). Accessed website on Saturday 10th ofJuly5. http://www.hreoc.gov.au/

Human Rights and Equal Opportunities Commission (Cwlth). Accessed website on Monday 12th of July

6. http://www.wo.gov.au/asp/index.asp

Australian Government Workplace Ombudsman (Cwlth). Accessed website on Tuesday 13th of July

7. http://www.workcover.nsw.gov.au/default.htm

Information on NSW legislation for employers. Accessed website on Tuesday 13th of July8. http://www.lawlink.nsw.gov.au/irc

http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/index

NSW Industrial Relations Commission- Accessed website on Thursday 15th of July9. http://www.ascc.gov.au/

Australian Safety and Compensation Council (Cwlth)10. http://www.wcc.nsw.gov.au/default.htm

NSW Worker's Compensation Commission (NSW)11. http://www.fairpay.gov.au/

Australian Fair Pay Commission (Cwlth)12. http://www.actu.asn.au/

Australian Council of Trade Unions (Cwlth)13. http://www.slnsw.gov.au/liac/welcome.htm

Legal Information Access Centre. Legal information on Workplace and Employment in NSW Accessed website online on Friday 16th of July

14. http://www.lawsocnsw.asn.au/public/rights/

The Law Society of NSW

15. NSW HSC Online

NSW HSC Legal Study Online Resource Syllabus. Accessed website on Sunday 18th of June16. http://www.lawsocnsw.asn.au/public/rights/

Law of Society NSW. Information on rights and responsibilities for employees. Accessed Information on Sunday 18th of July

17. Law and Justice Foundation - Home

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Law and Justice Foundation of NSW. Information on the law in regards to the justice

system. Accessed website on Tuesday 20th of July18. http://www.library.uq.edu.au/law/research/sources.html

Online Resource information workplace laws. Accessed information on Tuesday 20th of July BOOKS:-

1. Understanding Law

Author: Jannet Hartnett

2. HOT TOPICS- Legal Issues In Plain Language-

Employment and the LawPublished By: The Legal Information Access Centre (LIAC)State Library of New South Wales

3. Oxford HSC Essentials Legal StudiesAuthors: Chris Diekman and Catherin Diekman

4. Society, Law And Justice Legal Studies For Senior Students Authors Elizabeth Fillis, John Goldring and Chris Diekman

5. Easy Guide To Australian Law

Author: Peter Fairfield

6. Legal Studies HSC Course COREAuthors: Mohan Dhal and Katherine Dommerson

7. Macquarie Revision Guides Author Janet McCarthy

8. Education And The Law

Authors: Ian M Ramsay and Ann R Shorten

ENCYCLOPAEDIAS:-

1. Encyclopaedia Britannica Information on Employment Law Accessed Encyclopaedia on Saturday 3rd of July

2. Encyclopaedia Onlinewww.encyclopediaonline/worklace laws.comAccessed website on Saturday 3rd of July

3. The Readers Digest Legal Questions And AnswersAuthor Jan BowenAccessed encyclopaedia on Sunday 4th of July

REFERENCES:-

1. Fair Enough, A case book for Legal Studies Students, Derwent B and Parker M: Longman Cheshire, Sydney, 1994.

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2. The Law Handbook: the easy-to-use practical guide to the law in NSW, 7th ed. Redfern Legal Centre, 2005

3. HSC Legal Studies 2nd Edition Textbook