Lecture Fundamentals of business law (4th): Chapter 22 - Margaret L. Barron, Richard J.A. Fletcher

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, the major public policy factors that underpin workplace relations law,…

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Workplace relations law

Chapter 22

Sources of workplace relations law

• Provide rights and obligations not available to

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

Federal (Workplace Relations Act 1996 (Cwlth)) and

State legislation

Objectives:

Regulation by industrial

awards

Includes:

Statutory employment terms

Industrial award terms

Statutory Employment Agreement terms

• Objects of Awards:

Legally binding order of Industrial Tribunal relating to industrial matters, including:

- wages

Regulation by industrial

awards

• Making of industrial awards:

Compliance with - relevant legislation

- administrative law principles

of natural justice Utilises conciliation and arbitration

• Parties bound by industrial awards:

Employers specifically named in award

Members of named employer associations

Regulation by industrial

awards

• Duration and cancellation of awards:

 Specified duration when made

 Cancellation by Industrial Tribunal

Regulation by industrial

awards

• Minimum and paid rate awards:

Minimum legal obligations of employers and

employees stated

• Award simplification:

 Statutory obligations on Australian Industrial

Relations Commission to simplify industrial awards  Only twenty specified “allowable matters” to be included

 (Additional provisions are not enforceable)

• Award test cases:

Allows general rulings of principle to be laid down

Statutory Employment

Agreements

Contractual arrangements between employer and employee

• Statutory agreement-making objects

• Legal effect of Statutory Employment

Agreements

• Types of Statutory Employment Agreements

• Negotiation of Statutory Employment

Agreements

• The “no disadvantage” test

Types of Statutory Employment Agreements

• Collective agreements

• Individual agreements

• Multi-employee agreements

Statutory Employment

Agreements

• Statutory agreement-making

objects: Primary responsibility for

determining industrial matters rests with employers and employees in the workplace

– Certified Agreements (CAs)

– Australian Workplace Agreements

(AWAs)

Negotiations if Statutory Employment

- employer and one or more unions

- employer and employees

• Australian Workplace Agreements:

Agreement between

-employer and individual employee

The “no disadvantage” test

• Agreements must not, on balance,

result in a reduction in an employee’s overall terms and conditions of

employment, compared with the

relevant award and statutory terms

that would otherwise apply to his/her employment.

State Statutory Employment

Agreements

• State Employment Agreements will

prevail over Federal Awards.

Statutory workplace relations

Australian Industrial Relations Bodies

Principal conciliation and arbitration body established

by the Federal Workplace Relations System

Functions:

• Hear and determine “industrial matters” arising out

of interstate industrial disputes.

• Make industrial awards binding on employers and employees.

• Simplify industrial awards.

• Inquisitional functions.

Office of the Employment Advocate

• To receive and approve AWAs where required

• To investigate complaints and breaches of AWAs

• To investigate breaches of freedom of association laws

• To provide legal representation to parties where

appropriate, concerning AWAs and freedom of

association

• To provide statistical information

• To perform any other appropriate functions prescribed

Office of the Employment

Freedom of association

Covers:

– Whether membership of trade unions is voluntary or compulsory

– Whether there is a choice to make

statutory workplace agreements

– The legitimacy of bargaining fees paid

to unions

Industrial action and

enforcement

Forms of industrial action

• Employee - Picket Lines

- Work bans

- Work-to-rule campaigns

• Employer - Lock-out

Industrial action and

enforcement

Lawfulness of industrial action:

• Contract Law

• Law of Torts - Industrial torts

- Inducement to breach contractual obligations

Orders of industrial tribunals

Statutory Employment Agreements

Industrial action and enforcement

Protected action:

Lawful industrial action is

– allowed while negotiating statutory employment agreements

– undertaken by parties to negotiations

– 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 for specified period of time

Industrial action and

enforcement

Strike pay

• Payment of wages to employees

engaged in industrial action is

unlawful unless action caused by

genuine health and safety issues.

Industrial action and

enforcement

Orders preventing industrial action

• AIRC can make orders enforceable by Federal Court of Australia

Industrial action and

Industrial action and

Industrial action and

enforcement

Conciliation and arbitration of

disputes

• Undertaken by relevant industrial

tribunal; legislation restricts powers

of relevant tribunal.

Industrial action and

• Industrial offences under statute

- Workplace Relations Inspectors

- Statutory Office Holders

• Breaches of Awards or Agreements

- Relevant Courts