Lecture Fundamentals of business law (7/e): Chapter 22 - M.L Barron

Chapter 22 - Workplace relations law. At the end of this chapter you should understand: the interaction between workplace relations law and employment law, the principal sources of Australian workplace relations law, the workplace relations systems in Australia,…

This is the prescribed textbook for your course.

Workplace relations law

Chapter 22

• the principal sources of Australian workplace relations law

• the workplace relations systems in Australia

• the major public policy factors that underpin workplace relations law

• the role that international standards play in workplace

Learning objectives (cont.)

• the way in which an enterprise agreement is distinguished from a common-law contract of employment

• the way in which an enterprise agreement is distinguished from an award

• the major functions of Fair Work Australia and the Office

of the Fair Work Ombudsman, including workplace

inspectors

• the major roles, rights and responsibilities of trade unions

in workplace relations law

• the circumstances in which industrial action is and is not lawful

• the principal remedies against unlawful industrial action and the methods of enforcing workplace relations rights.

• Australian law governing the employer–

employee relationship goes beyond

common-law contractual principles.

• There exists a further body of law:

workplace relations law.

• This law concerns not just the contractual

relationship between an employer and an

employee but also the broader framework

that creates and enforces minimum rights

Sources of workplace relations

law

• Australian workplace relations

systems are created by statute, not

the courts.

• All states (except Victoria) and the

Commonwealth have their own

statutory workplace regulation

systems.

• Victoria has referred its powers to

the Commonwealth.

National workplace relations

system

• From 1 January 2010, New South Wales,

Queensland, South Australia and Tasmania referred law-making power with respect to industrial relations

to the federal parliament to create a national

workplace relations system

• Foundation of this system is the Fair Work Act 2009

(Cwlth)

• State industrial relations legislation still exists and

covers a minority of employees

Features of Australian workplace relations law

• Legislation establishes the system

• Legislation has industrial, social and economic

objectives

• Mandatory minimum terms, relating to both wages and conditions of employment are imposed on

common law contracts by statue or by industrial

awards made by industrial tribunals

• Creation of industrial tribunals with power to make industrial awards on defined matters, and to varying degrees, compulsorily conciliate and arbitrate

industrial disputes

Features of Australian workplace relations law (cont.)

• Regulation of the role of trade unions and employer associations

• Recognition, to varying degrees, of the right to

enterprise bargaining

• Protection, to varying degrees, freedom of

association (i.e voluntary unionism)

• Creation of specific rights and obligations concerning the termination of employment

• Provisions relating to compliance, remedies and

enforcement of rights and obligations in workplace relations

Objects of workplace relations law

• Provide rights and obligations not available at

common law

• Codify and expand the common law

• Provide rights and obligations across the workforce

• Redress what is regarded as unequal bargaining

power in contractual negotiations between an

employer and an employee

• Continually changes in response to developments in economic, global, political, technological, workplace and industry conditions

Fair Work Act 2009 (Cwlth)

• Primary workplace relations legislation in Australia

• Its application provides a single set of national laws that govern workplace relations across Australia

• Employees covered are those employed:

– by a constitutional corporation

– in Victoria, Northern Territory or Australian Capital Territory – by sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales,

Queensland, South Australia and Tasmania

– by the Commonwealth or a Commonwealth authority

– as waterside, maritime or flight crew employees in

connection with overseas trade or commerce.

National Employment Standards (NES)

• A safety net of ten enforceable minimum

employment terms and conditions applicable from 1 January 2010

• Cannot be altered by an employer

• Together with pay rates in modern awards

and minimum wages provide guaranteed

minimum employment terms and conditions

National Employment Standards (cont.)

1 Maximum weekly hours of work

2.Requests for flexible working arrangements

3.Parental leave and related entitlements

4.Annual leave

5.Personal/carer’s leave and compassionate leave

6.Community service leave

7.Long service leave

8.Public holidays

9.Notice of termination and redundancy pay

10.Provision of Fair Work Information Statement

Regulation by industrial awards

• An industrial award is a legally binding order

relating to industrial matters, including both wages and conditions of employment made by an industrial tribunal

• A modern award is an industry or occupation based

set of minimum employment standards made by Fair Work Australia Following simplification and

reduction of existing federal awards, there are now

Modern awards

• Making of awards

– Compliance with relevant legislation and administrative law principles of natural justice

– Utilises conciliation and arbitration

• Parties bound by awards

– Award coverage attaches to the type and place of

work, and to employees and employers within:

 a defined industry sector

 an occupational group

Modern awards (cont.)

• Duration and cancellation of awards

– Specified duration when made

– Cancellation by industrial tribunal (rare)

• Variation of award

– By the industrial tribunal that made it

• Interpretation of awards

– By federal and state courts

• Award test cases

Fair Work Act and common-law

to the NES

• Reflects rationale that employees in this income

bracket do not require the protection of awards as may be required by more vulnerable workers

Enterprise agreements

• Collective agreements only—must be made by a

group of employees and the employer/s and not by

an individual employee and employer

• Such agreements should be the product of

negotiation

• Three types of agreement under the Fair Work Act:

– Single-enterprise agreements made between a

single employer and group of employees

– Multi-enterprise agreements made between two

or more employers and groups of their employees

– Greenfields agreements—single or

multi-enterprise agreements relating to genuinely new enterprises before any employees covered by the agreement are employed

Enterprise agreements (cont.)

• Following notification, negotiation and voting

processes, an enterprise agreement must be lodged with Fair Work Australia for approval

• Fair Work Australia must be satisfied that the

agreement meets the ‘better off overall test’ – that

all affected employees will be better off than under the relevant modern award

• The Fair Work Act imposes an obligation on anyone

involved in the bargaining process to act ‘in good

faith’.

• Bargaining representatives may include unions,

employee consultative groups or other agents

State statutory employment

agreements

• All state workplace relations systems recognise

employment agreements under their legislative

schemes, but with varying characteristics

• The Fair Work Act provides that a modern award or

enterprise agreement prevails over a law of a state

or territory

• This is subject to exceptions in regards to

occupational health and safety, workers’

compensation and training arrangements

Registered organisations

• The Fair Work (Registered Organisations)

Act 2009 (Cwlth) deals with the registration

and accountability of unions and employer

associations in the national system.

• When a trade union or employer association

is registered by Fair Work Australia it is

known as a registered organisation and

obtains certain statutory rights and

obligations under the national system.

Registered organisations (cont.)

• Registered organisations must comply with statutory requirements in relation to financial affairs,

compliance with its rules and elections and ballots for members

• Freedom of association is specifically upheld by

the provisions of the Fair Work Act—the choice as

to whether to belong to an organisation or not

• The Fair Work Act provides injunctions and heavy

penalties for conduct by employers, employees,

independent contractors, employer associations or trade unions which breach the freedom of

association provisions

Rights of registered organisations

• The right to initiate proceedings in industrial

tribunals such as dispute notification and

resolution

• The right to be a bargaining representative when

negotiating enterprise agreements

• The right to initiate some legal proceedings on

behalf of members

• The right to engage in protected industrial action

• Rights of entry for trade union officials under

specific limited conditions to enter workplaces and inspect employment records and the work

Statutory workplace relations

bodies

• Conciliation and arbitration bodies (such as industrial tribunals including Fair Work

Australia)

• Bodies with specific powers to approve

agreements or investigate complaints (such

as the Office of the Fair Work Ombudsman)

• Courts with power to enforce rights (such as the Federal Court of Australia)

Fair Work Australia

• Replaced and assumed most of the functions of the Australian Industrial Relations Commission as the principal conciliation and arbitration body in the national workplace relations

system.

Functions:

• Has responsibility for minimum wages in the national

workplace relations system

• Deals with cases of unfair and unlawful dismissal

• Deals with the resolution of industrial disputes and applications for protected industrial action

• Makes and deals with modern awards

• Decisions must take into account public interest including the state of the national economy.

Office of the Fair Work

Ombudsman

• Independent statutory agency created by the Fair Work Act

• Role is to ‘promote harmonious, productive and cooperative workplace relations and to monitor, enquire into, investigate and enforce compliance with relevant Commonwealth laws’.

• Fair Work inspectors investigate and enforce compliance with federal workplace laws

• Fair Work inspectors may:

– conduct education campaigns

– conduct compliance audits

– investigate workplace complaints

– investigate suspected contraventions of federal workplace relations law

– take steps to enforce relevant workplace law through the courts

Forms of industrial action

Lawfulness of industrial action

Protected industrial action

• Protected industrial action means the party

taking the action is immune from civil liability

to the other party and is:

– allowed while negotiating employment agreements

– undertaken by parties to negotiations and not third

parties

– preceded by written notice of intended protected

action at least three working days prior to action being undertaken

– preceded by genuine attempts for agreement

Protected industrial action (cont).

• The bargaining period can be suspended or terminated by Fair Work Australia.

• Where the bargaining period has been

terminated, Fair Work Australia is only able to arbitrate the dispute in very limited

circumstances.

Industrial action and enforcement

Strike pay

• Payment of wages to employees engaged in industrial action is unlawful unless the action is caused by

genuine health and safety issues

Orders preventing industrial action

• Fair Work Australia can make orders against unions, individual employees or employers to stop or prevent industrial action which orders are enforceable by the Federal Court of Australia

Industrial action and enforcement (cont.)

• Remedies for unlawful industrial

– Industrial action taken involving action directed

at innocent third party, with whom the target

employer is dealing unlawful under the

Industrial action and enforcement (cont.)

• Conciliation and arbitration of disputes:

– Undertaken by relevant industrial tribunal;

legislation restricts powers of tribunal

• Enforcement

– Unlawful industrial action:

 Civil action

 Prosecution – Industrial offences under statute:

 Fair Work inspectors

 Statutory office holders – Breaches of awards or agreements: