Yes, I know this is a very large write up. If you're looking for specific information it is spilt up under headings, so you don't have to read things you're not interested in. Its better to have it ALL here!
Employment law in Australia is drawn from these sources:
History of employment patterns:
Safe and resonable conditions, like those enjoyed today, were not always the case, progress has been made. This evolution that has allowed the relationship between the employer and employee to change and become less harsh has been bought about by disaster, politics and industrial development.
After the plague decimated in what we now know as England, the law of employment arose as a concern for the rulers of English society. The Statute of Labourers 1351, required able-bodied persons who did not have means of support to work for a set wage (which was to the advantage of the employer). Despite the reduced population, all industries were adequately staffed.
The Statute of Labourers was not modified until 1563, when it was replaced by the Statute of Artificers. This gave justices of the peace power to set wages, according to food prices and restricted the rights of workers to leave their employment without permission.
It was not until the Industrial Revolution in the late eighteenth and early nineteenth centuries and the corresponding development of collective labour laws that the rights of an employee were recognised. An increasing number of workers were moving from working on farms to working in factories where they formed 'friendly societies' to deal collectively with employers so as to protect their interests. In response, the British parliament passed the Combination Acts 1799 and 1800 which made these forms of combined action by employees to protect or promote their interests as workers unlawful.
Under the Master and Servants Act 1823 (UK) a servant who left their master while still under contract could be jailed for three months.
Then in 1825, the Combination Amendment Act was passed, following a period of industrial unrest. This Act made it legal for workers to combine forces for the sole purpose of negotiating wages and working hours, but still outlawed most actions connected with industrial disputes.
Laissez-faire versus state intervention
One of the main reasons behind the slow develpment of the law in relation to employment is in the notion of contract. The eighteenth and nineteenth centuries saw the development of a philosophy that became known as the laissez-faire approach. This philosophy suggests that the market or society will determine which enterprises and practices are best suited to certain situations. It relies on market forces, rather than government intervention, to develop its own rules and practices.
State intervention is the antithesis of the laissez-faire approach. The government controls the conduct of the market or society and thereby lessens the opportunity for persons to conduct themselves in a free and uninhibited manner. This takes the form of legislation and regulation, requring workers to provide certain wages.
Types of employment contracts:
The common law contract of employment, also called a contract of service, is a legally binding agreement between an employer and employee. The employer agrees to pay money or its equivalent to the employee and in return the employee agrees to follow directions regarding work supplied by the employer.
The common law requires that all non-formal contracts have these three standard elements:
- an intention to be bound to the contract
- an agreement as to terms
- consideration, or acts or promises provided by both parties
A common law contract or employment, or contract of service, can be distingusihed from an independent contract for services because of the rights that arise under the respective contracts.
Contracts of service
A legally binding employment agreement in which there is a relationship of employer and employee. The rights and responsiblities owing to each party are much greater than in the contract for services. An employer is required to provide the employee with safe working conditions and compensation in the event that the employer is injured, annual leave, sick leave and supperannuation payments. This is all a result of legislation which covers the employer-employee relationship.
Contracts for services
A contract for services (also known as an independent contract for services), arises when a person agrees to do a specified task or tasks. An example of this is when a taxi driver is contracted to take a passenger to a particular destination. The driver and passenger enter into a contract, but the driver never becomes the employee of the passenger. A doctor or solicitor who sees a patient or client several times over a short period of time is another example of this.
Differences between contract of service and contract for services
If a person is considered to be an employee (in a contract of service with an employer), then they are entitles to a variety of benefits- holiday pay, sick leave and superannuation- that arise under State and Commonwealth legislation. If the relationship is considered to be based on an independent contract for services, then the employee benefits will not be available. Which saves the user of those services, but also enabling the independent contractor to gain taxation and other advantages.
The courts have had to be involved many times to determine whether certain situations are employer/employee relationships (contracts of service) or independent contracts for services.
- Continuing or regular employees: Often referred to as permanent employees, generally employed where the employer needs a stable workforce with the necessary skills and knowledge.
They work under a continuing contract of employment of unspecified duration which they can expect to be continually employed.
The hours vary, depending on whether they are full- or part-time employees.
Termination of permanent full- or part-time employees usually require a period of notice specified in an award.
- Casual employees: Usually employed for short-term, irregular or seasonal work (eg; a fruit picker).
The employer and casual employee enter into a series of short-term contracts on the specific occasion.
Paid by the hour or day or sometimes productivity.
Usually have no access to entitlements such as sick leave or annual leave, but are often paid more money to compensate for this.
There are provisions of the Workplace Realtions Act 1996 (Cth) that protect continually employed workers for twelve moths from unfair dismissal.
- Probationary employees: Employed on a trial basis
- Apprentices and trainees: Under which apprentices and trainees are employed.
Offer structured on and off the job training that usually lead to recognised qualifications.
Apprentices train to be tradespersons, and trainees train for a non-trade occupation (such as a clerk).
- Unpaid training and work experience: Students and the unemployed are sometimes allowed by emplyers to come to the workplace for training or work experience, or to simply observe what goes on in the workplace
A contract may exist, but only if there is agreement that it is to be legally binding. There is to be no contract if there are no mutual benefits or obligations.
Express and implied terms
The express terms of a contract are terms that are expressly agreed to by the parties; for example, parties will clearly agree on the type of work to be done or the money to be paid for it. This is usually in the form of writing, but may be communicated orally. Express terms will often refer to negative or restrictive provisions that the employer does not want the employee to undertake.
Implied terms are terms of employment contract that the common law or statute automatically included in every contract. For example, the duty of the employer to provide a safe working environment for the employee, or the duty of the employee to obey the lawful work commands of the employer.
Duties of employers
Duties of employees
- to provide work
- to pay wages and other forms of remuneration
- to pay wages while the worker is sick
- to observe statutory obligations
- to provide for the safety of employees while they are at work
- to obey lawful orders
- to work in a careful and competent manner
- to account to the employer
- to keep the employer's confidence
- to disclose criminal behaviour
These awards establish the rights and duties of employers and employees, such as the minimum conditions of employment and minumum rates of pay. Employers are not about to contract out of an award and are bound by its terms.
Administered by the Tax office, the Training Guarantee Scheme requires employers who have a payroll totalling more than a nominated threshold to use 1.5 per cent of their budget to train employees. To develop, maintain or improve the employment-related skills of the employees (eg, computer-literacy courses). If the employer does not do this, under the Training Guarantee (Administration) Act 1990 (Cth) they must forfeit the amount unspent to the Tax Office.
The Superannuation Guarantee Scheme is aimed at ensuring the employees, upon retirement, will have enough moeny to support them, possibly for the rest of their lives. The scheme relies on the employer contributing a percentage until the employee retires. The employee contributes a percentage of their salary to the fund aswell. The money in the fund cannot be spent until the employee retires, if they take an early retirement, certain penalties and taxes markedly reduce the amount received by the employee.
Invloves the regulation of the relationship between employers and employees. It deals with the conflicts that arise when the employer-employee relationship breaks down. A key feature is conciliation and arbitration to resolve disputes.
The outcomes of negotiations between employers and employees regaurding the terms and conditions of employment. May be formal or informal. Formal agreements that have never been registered with an authority- such as the Australian Industrial Relations Commission (AIRC) or the Employment Advocate. Informal agreements are those agreements that have not been registered. These agreements may be orally or in writing. They cannot undermine the terms and conditions in an award.
Australian Workplace Agreements
Were introduced by the Workplace Relations Act 1996 (Cth). It is an agreement made between an employer and an individual employee of group or employees. This concept caused some concern to certain groups such as unions and employees. To prevent employees being exploited by employees under AWA, all AWAs are required to pass the 'no disadvantage test'.
Negotiations between employers and employees
- Workplace bargaining: method of negotiation that occurs between individual employees of unified groups of employees and their employer at one workplace. The employees in this form of negotiation are united about the issue, so as to present a stronger argument to the employer.
- Enterprise bargaining: agreements reached between the employer and employees without reference to unions. This provides for less industrial action if accepted by both parties.
- Individual action: when individual employees negotiate on their own behalf with managment. The individual often has little impact over the decisions of managment, so the employer is able to reject the claims of an individual.
- Collective bargaining: when unions negotiate on behalf of all their members. Unions are a powerful force in the workplace because of their ability to put forward the views of a vast number of members. Employers are unable to reject union claims without due consideration, or the members of the union may begin industrial action.
- Consensual forms of dispute resolution: resolving by mutual consent or agreement through negotiation of mediation or both. These are processes which involve both parties agreeing to discuss their dispute, and trying to compromise. These negotiations may or may not invlove a third party acting as a mediator.
Change in the workplace
The impact of technological change on work patterns
Unlike the machinery invented in the Industrial Revolution that required large numbers of workers to run and operate it, modern technology is aiming to remove the human factor from many tasks. The impact of technology on the workplace has been positive in many industries as it has imporved working conditions. However, it has also had a negative effect in that it has removed employment positions and in some circumstances, infringed on employees' personal liberty.
- Occupational overuse syndrome
- many redundancies (because it replaces labour)
- infringement on personal liberty
- different work patterns (due to increased contactability)
- Improved occupational safety (in many formerly dangerous occupations)
- some work becoming quicker and easier.
Information and services can be transferred with much greater ease. Services of many types are now considered to be available twenty-four hours a day, from across the country or across the world. Mobile phones
, answering machines
and the internet
. Such avaliablity has had an impact on people's working patterns, increasing workers' personal contact with their jobs- Doctors are on call, information services, such as lawyers and counsellors now have twenty-four hour a day help lines
Technology has also created jobs for many people who are willing to work nights or from home. Computers, faxes and modems allow people to do all sorts of jobs just from a desk at home.
Safety and occupational health
Technology has improved occupational health, making workplaces much more safer places. With machinery
to lift heavy objects or to come in contact wih dangerous chemicals
are now more safely performed. Future technology relating to DNA
screening may be used to filter out high-risk employees, that is-people who have potential health problems, while people with certain skills for certain tasks can be employed. Unless used properly, technology may be detrimental to the workplace. Especially with DNA screening, people can be disciminated against.
Safety in the workplace
Negligence in the workplace
Negligence is the legal concept which suggests that a person's relationship with another such that if certain types os avoidable mishaps occur, the injured party may be compensated for the damage. In order to prove negligance against someone, the injured person has to prove:
- that a realtionship existed between the parties which suggested that one had the duty of care over the other
- that there was a breach in the duty of care
- that there was damage as a result of the breach
In Wilsons and Clyde Coal Co v English (1938)
it was stated that there were three main duties owed by employers to their employees:
Workers' compensation legislation:
- to provide competent fellow employees
- to provide adequate plant of premises from which to work
- to provide a safe system of work
Designed to ensure that workers are provided for in the event of an injury incurred during the course of employment. The Workers Compensation Act 1987 (NSW)
provides that employers must pay premiums to insure against work-related accidents
and diseases. The Workers Compensation Scheme aims to:
Occupational Health and Safety Act 1983 (NSW)
- prevent accidents
- compensate injured workers
- rehabilitate workers to the extent that their injuries allow
The Robens Report of 1972
reported that worker apathy towards safety was one of the primary causes of workplace accidents. It considered self-regulation, in the way of education and training about safety issues, to be the optimal method of achieving a safe working environment.
The Williams Report
followed in 1981 and found that New South Wales legislation
of the time not adequately prevent workplace accidents. It was concluded that future workplace safety legislation should be a unifying Act with clearly stated objects, such as: 'There should be a right, in every person in employment, to have adequate protection against ill-health or injury arising in the course of employment.'
The Occupational Health and Safety Act 1983 (NSW)
was intended to be the central piece of legislation which rules the safety practices in the workplace throughout all industries. The major features of the Act are:
The Occupational Health and Safety Act 2000 (NSW)
- employers and self-employed persons must 'promote an occupational environment for persons at work which is adapted to their physiological and psychological needs'
- employers have a duty to guarantee the health, safety and welfare at work of all employees
- employees are to take 'resonable care for the health and safety of persons who are at their place of work and who may be affected by their acts or omissions at work'
- employees must cooperate with their employers 'so far as is necessary' to enable health and safety legislation to be complied with.
is the newest one.
Is a NSW state government body that administers the WorkCover Scheme which serves two main purposes: to provide workers' compensation and rehabilitation to injured workers in NSW, and it monitors the health and safety standards in the workplace. WorkCover inspectors visit workplaces to ensure that they comply with the standards.
Rehabilitation of persons who have been injured at work is now becoming an important issue for employers and legislators. Today, rehabilitation is seen to benefit employers, employees and society as a whole. Rehabilitation allows employers to have their valuble employees back at work within a shorter period of time saving money from having to train new staff. For the employee, rehabiliatation may be both physically and psychologically beneficial. It means less of a cost to the public because continued compensation payments and increased insurance premiums is reduced.
Government support for rehabilitation
Employers of more than twenty employees are required to have a rehabilitation policy and a rehabilitation coordinator as a part of their staff. In 1998, the New South Wales government passed the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to provide for the effective management of work-related injuries and compensation for such workers.
Termination of employment
Under the Workplace Relations Act 1996 (Cth) 'termination' occurs when an employer terminates employment. This Act is designed to give employees access to a system of appeals.
Dismissal: the termination is because of inappropriate behaviour on the part of the employee or a breakdown of the working relationship.
Dismissal by notice: the employer gives the employee notice of the fact that they are no longer wanted at the workplace. Entitles the employee to some time to arrange their affairs and obtain a new job. The employee recieves pay in this time, and has the option of leaving right away, and still being paid for the time that they would be there. This is known as 'pay in lieu of notice'.
Summary dismissal: invloves the employer dismissing the employee for serious or wilful misconduct. Does not provide the employee with notice, but the employer must give reasons for the dismissal. Some examples of behaviour that could lead to this kind of dismissal include:
Wrongful or unfair dismissal
- wilful disobedience of an employer's command
- criminal convictions that have some effect on the employee's ability, or public perception of their ability, to work
- gross negligence
- being affected by drugs or alcohol.
If an employer has reasonable grounds to believe that an employee should be dismissed, then the employer should give the employee an opportunity to be heard and answer the allegations. Otherwise the courts or tribunals may agree that wrongful dismissal has occured.
The Workplace Relations Act 1996 (Cth)
lists the factors that the Australian Industrial Relations Commission (AIRC)
must take into account when considering whether a dismissal has been harsh, unjust or unreasonable.
- Was there a valid reason for the dismissal that related to the employee's conduct or capacity to perform, or to the operational requirements of the workplace?
- Was the employee notified of that reason?
- Was the employee given an oppourtunity to respond to the reasons?
- If the reason was unsatisfactory work performance, had the employee been warned before being dismissed?
Remedies of individual employees against wrongful dismissal