HSC legal: Workplace - wip

conciliation stasts

"FWC reported that about 59% of unfair dismissal claims were settled at conciliation"

FWO effective case law Exploitation of Woolworths cleaners- Fair Work Amendment (Protecting Vulnerable Workers)

'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 - cleaners paid as little as $7 an hour for training and just $14 an hour for work.- Not even NES - 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

What did the fair work act do?

- Banned AWA - state awards were replaced with modern awards. - Jobs of the same description were paid the same across states - Introduces national employment standards

Federal Circuit Court can

- Can enforce matters relating to breaches of NES, agreements and awards - Can hear small claims matters (up to the value of $20,000) including unpaid wages/entitlements.

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

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

Give an example of when an employee could be granted community service leave

- Volunteer fire service - its related to an emergency, its volunteering and the employee has been requested by the organisation as the employee is a member of said organisation - Jury Duty

Why may EA be more preferable

- allow for greater employee productivity as employees have a more positive relationship with the employer.

Duites of employees

- obey lawful direction of emplyer - exercise reasonable care

· contracts:

- of service - for services - express and implied terms

Under the fair work act when disputes first arise

- parties must follow the resolution procedures outlined in the award or agreement

Describe the rights and responsibilities of employers

- provide meaningful work - safe workin environment - pay reasonable wages

Duites of employers

- provide work for the purpose of the contract - provide safe working conditions - reasonable wages

Describe the rights and responsibilities of employees in the workplace - NES

- to be lawful an obey directions - reasonable care when carrying out work

protected IAs will be permitted to take place however, the FWC can suspend or terminate these actions if:

1. The action is harmful to people's health or property 2. The action is (or could) causing significant economic harm 3. The action causes significant adversity to the employer or employee

FWC will approve the application for protected industrial action IF:

1. The action is taken after an existing agreement has reached its expiry date 2. The action is in support of a new enterprise agreement - unions should be negotiating while IA is being taken. 3. The required notice has been given to the other party

How many National Employment Standards are there?

10

National Employment Standards (NES)

10 minimum employment entitlements that have to be provided to all employees in Australia.

How many hours per week is considered full time work?

38

How much annual leave are you entitled to?

4 weeks per year

How many days a year of unpaid domestic violence leave is an employee entitled to?

5

contract of services

A contract between employer and independent contractor

Outline the sources of workplace regulations - Agreements

Agreement can be negotiated between the employer and employee however that they must meet the awards or be better

What is not allowed of an EA

An EA cannot be worse than a modern award and the fair work commission will use BOOT to determine whether is will be approved

Australian Workplace Agreement (AWA)

An agreement made directly between an employer and employee covering working conditions and remuneration.

Law reform - awards fair work act

Banned work place agreements and state awards were replaced with moder awards Job of the same description got paid the same min standards.

Discrimination acts

Civil Rights Acts, Age discrimination in Employment, Americans with Disabilities Act

Enterprise agreements

Collective agreements made at a workplace level between an employer and a group of employees about terms and conditions of employment.

How FWO effective in Woolworths

Effective as it wollies was not compliant with the air Work Amendment (Protecting Vulnerable Workers). It shows how the FWO is actively working towards ensure business are compliant with the national frame work

Describe the rights and responsibilities of employers and employees in the workplace - contracts

Employers - must given the min stands to employees - Must outline the job description and task required Employee - must meet the requirement of the contract

How was the fair work commission effective in the James Felton v BHP case

FWC was effective through agreeing with BHP policies which are in compliance with the FWA as well as NES to provide safe working condition and equipment and Health and safety laws and regulation which protect employees

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

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

Outline the sources of workplace regulations - Awards

Fair work act

the sources of workplace regulations

Fair work act

Give an example of how flexible working arrangements could be negotiated

Hours of work, location of work, patterns of work

What is the purpose of the 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

Fair work commission case law - effective

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) - terminated on the basis of his repeated refusal to follow a direction to present to work clean-shaven in order to allow a respirator fit test to be completed. - The clean-shaven policy was adopted in the context of the need to wear appropriate Personal Protective Equipment (PPE), being Respirator Protective Equipment (RPE) - face masks or respirators. This need arises due to the nature of the mining and processing environment and in particular potential exposure - BHP found the other type of respirator was not appropriate for the risk profile of the underground mine

Conciliation

Method of nonbinding dispute resolution involving a third party who tries to help disputing parties reach a mutually agreeable decision; also known as mediation.

Protected industrial action:

Must be registered with the FWC - makes the strike legal and participants are protected from any liability (torts) under state law (

Enterprise bargaining

Negotiations between employers and employees about pay and work conditions at the level of the individual firm

How does Fair Work Ombudsman assist employees and employers in resolving disputes?

Provide education, assistance, advice and guidance to employers, employees, outworkers, outworker entities and organisations. Promote and monitor compliance with workplace laws. Inquire into and investigate breaches of the Fair Work Act.

Trade Unions - Effectiveness - A wage subsidy for working people to support jobs and livelihood

Public health orders and plunging consumer confidence are causing a shut-down in real time of large parts of Australia's economy. The impact on employment, incomes, and production is detrimental. To keep as many Australians employed as possible in the coming terrible months, the Commonwealth should replicate the more powerful, direct wage supports already being implemented in many other countries such as the UK where the government is directly paying most of the wage costs for workers at hard-hit firms who would otherwise be made redundant. Government pays 70-90% of wages, for firms whose sales fall dramatically. ACTU suggests that Government pays 80% of wages for workers who would otherwise be made redundant or stood down. Companies which experience a decline of over 25% in revenues would be eligible. An option for supporting short-time work (with 80% top-up for lost hours) would be included. Firms receive 75% of their expected rebate on application (to immediately boost cash flow). Reconciliation of final rebates would occur after 1 July, on basis of full financial statements.

Work place case law in resolving disputes: mediation- effective 2

Qantas engineers

WorkChoices (2006)

Reduced number of awards to 14 - award conditions could be negotiated though the Australian workplace agreement - This meant the employer could pay more of less than the award

What is the ACTU

The Australian Council of trade unions is the peak body for the regulation of unions at the state and federal levels

Unprotected action:

The FWC can, supported by the courts, create orders to:- stop the action if it is already occurring- prevent the action if it is about to occuring

Statuary condition

The Fair Work Act 2009 (cth) is the main statutory framework concerning workplace law. It outlines: - The National Employment Standards (NES): legislative safety net - Modern awards - Enterprise bargaining agreements - Creation of the Fair Work Commission and Fair Work Ombudsman | - Improved mechanisms to protect industrial rights - including against discrimination and unfair dismissal

What is the goal of dispute resolution

The goal is to help disputing parties to come to a peaceful and mutually beneficial agreement

What do enterprise agreement do

They allow workplaces more flexibility where modern awards might not be completely appropriate for a work place

Give an example of what may be taken into consideration when asking an employee to work more additional hours

Whether there will be any risk to the health and safety of the employee

Outline the developing need for workplace laws

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.

Who is eligible for parental leave?

You must have worked for the employer for at least 12 monthsYou must have responsibility for the care of a child

Awards

a legally binding agreement that sets out minimum wages and conditions for a group of employees

What must all awards include

all awards must include dispute resolution preocedures

Benefits of mediation

allows for parties to put forward claims and concerns, suggest solutions and discuss terms and conditions

Agreement

an individual agreement between an employer and employee

industrial action

any action that places pressure on the other side to listen to the demands being raised.

BOOT

better off overall test

Contract of service

contract between employer and employee

common law of contracts

contract law developed primarily by state courts typically for a worker that is not covered by an award

Express terms

explicitly written and agreed to by the employer and employee in a contract such as salary and holidays

What legislative framework outlines your entitlements for working a public holiday?

fair work act - awards - enterprise agreements

Law reform - awards workplace relations act

first statues to try and simplify and streamline awards - list 20 min awards

Fair Work Investigators

government officials appointed by the Fair Work Ombudsman. Inspectors certain powers to perform their role to promote and monitor compliance with relevant Commonwealth workplace laws.

Collective bargaining:

more formal conversations where a group of employees usually represented by a trade union negotiate with the employer - result in new enterprise agreements is successful. Collective bargaining should done in good faith from both sides.

Contemporary work place rights

not be be discriminated against

What is the purpose of the Fair Work Ombudsman

purpose is to promote harmonious, productive, cooperative and compliant workplace relations in Australia. - Provides assistance and advice or relevant commonwealth workplace laws - Monitors compliance - Investigates any act or practice that may be contrary to workplace laws

Law reform - awards work choices

reduced number of matter to 14. The award condition could be negotiated through workplace agreements.

Regulation of the workplace : Industrial relation state and federal framework

s 51 of the constitution gives the commonwealth gov the power to make the laws in respect to conciliation and arbitration for the preventative settlement of industrial disputes

Why is the government involved in the relationship between employers and employees?

s51 of the constitution gives the fed. Govt the power to make laws related to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state", having 6 different industrial relations systems caused confusion and inconsistencies - so with Workchoices (2006) amendment, the states handed IR powers over to the federal government. Workchoices was abolished in 2009 with the introduction of tht FWA and here we are today. Conflicts can still arise between federal and state legislation in which case, federal law will prevail.

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider

Work place relations act

the first statues to simplify streamline awards. - 20 Min standards

Implied terms

these are typically spoken and presumed

How workers rights are controlled and regulated

through legislation e.g. statutory authorities e.g. fair work comission non government organisations e.g. unions