Chapter 13Option 4: Workplace

In this chapter, you will study the nature and concepts of workplace law. You will look at regulation in the workplace and consider some contemporary issues in workplace law, including discrimination, safety, termination of employment and leave.

• Workplace law regulates the relationship between employees and employers, ensuring that the rights of workers are protected, and that both employees and employers comply with their obligations.

The nature of workplace law

• Labour laws began to develop during the Industrial Revolution in Britain.

• Government intervention in employment began to replace laissez-faire policies, which assumed that parties negotiating an employment contract had equal bargaining power.

The nature of workplace law

• Conciliation and arbitration have been at the centre of Australian industrial relations law since 1904.

• The Australian Constitution gives the Federal Parliament power to make laws to settle interstate industrial disputes.

• But broader industrial powers were shared with the states until they all (apart from Western Australia) referred their powers to the Commonwealth between 1996 and 2009.

The nature of workplace law

• A contract of employment is a contract of service between an employer and employee, which provides specific rights and imposes specific duties on both parties.

• By contrast, a contract for services is an agreement to do work for an agreed fee, but the worker is not employed by the other party.

The nature of workplace law

• All contracts of employment contain both express and implied terms.

• Examples of implied terms include an employer’s duty to provide a safe working environment, and an employee’s duty to obey lawful directions of the employer.

The nature of workplace law

• Australia’s industrial relations framework includes industrial awards and enterprise agreements.

• The federal system covers most employees in Australia, but NSW retains legislative powers relating to state and local government employees.

The nature of workplace law

• In their judicial role, Fair Work Australia and the NSW Industrial Relations Commission hear disputes, resolving issues through a process of negotiation and conciliation to achieve a consensual solution.

• These bodies also have the administrative functions of setting conditions and wages and approving enterprise agreements.

• The Fair Work Ombudsman can investigate and enforce breaches of the Act, awards or agreements. It also provides education, advice and assistance.

The nature of workplace law

• The National Employment Standards comprise 10 minimum standards for employees’ pay and entitlements.

• All awards, agreements and contracts of employment must meet these standards.

The nature of workplace law

• Trade unions represent workers’ interests, and they work to achieve better pay and working conditions.

The nature of workplace law

• Occupational health and safety is regulated by state legislation such as the Occupational Health and Safety Act 2000 (NSW).

• Workers’ compensation is a compulsory insurance scheme to compensate employees injured at work.

The nature of workplace law

Contemporary issues concerning the workplace

• Discrimination refers to the unfavourable treatment of a person or group, relative to the way others are treated. It may take the form of direct discrimination or indirect discrimination.

• In the context of the workplace, it is unlawful to discriminate between employees on the basis of characteristics such as sex, race, pregnancy, religion, national origin, marital status, sexual orientation.

Issue 1: Discrimination

• The law acts to ensure that there is equal opportunity for individuals within the workplace, by making acts or omissions that discriminate against them illegal.

• Discrimination is illegal in NSW under the various state and federal legislation.

Issue 1: Discrimination

• In the workplace, employers must treat all employees, and anyone applying for a job, fairly – that is, on the basis of their individual merit, skills and suitability for the job, not irrelevant personal characteristics.

• Although the legal system has acted to remove discriminatory practices within the workplace, it has not been entirely successful – for example, there are still pay and promotional disparities between men and women.

Issue 1: Discrimination

• The various discrimination laws were introduced in response to changing social attitudes and values.

• Recent workplace reform has centred on removing discriminatory practices, involving work and family issues and the introduction of family-friendly initiatives within the workplace.

• However, there is a continuing need for further workplace reforms in the area of parental leave.

Issue 1: Discrimination

• On average each year, over 690 000 workers suffer a work-related injury or illness – almost 10 per cent of Australian workers. According to the ACTU, in 2007–08 there were 150 work fatalities.

• A safe workplace includes safe equipment, safe work systems and appropriate training procedures.

• Workplace safety is a variable concept depending on the workplace, and courts will often need to decide what constitutes ‘safe’ according to relevant legislation and the individual case.

Issue 2: Safety

• Occupational health and safety (OHS) falls within state jurisdiction. In NSW, the principal Act governing workplace safety is the Occupational Health and Safety Act 2000 (NSW).

• The legal system has responded to workplace safety concerns through:– development of the common law duty of care in relation to employer

negligence– legislative reforms, including workers’ compensation, injury management,

regulation and development of statutory duties.

Issue 2: Safety

• Reforms to occupational health and safety legislation, and emphasis on preventive measures, have reduced the number of claims and the severity of workplace injuries.

Issue 2: Safety

• Deaths and injuries in the workplace have tragic consequences for victims and their families, and economic losses on individuals, businesses and the economy.

• The total cost of workplace injury and disease is estimated at over $50 billion each year.

Issue 2: Safety

• Although cooperation of governments, unions and employer associations has proven to be effective, it has been argued that a greater willingness to impose statutory regulation on businesses is needed.

Issue 2: Safety

• Termination of employment may occur as a result of the employee leaving a job of his or her own accord, or the employer asking the employee to leave.

• Termination can occur in a number of ways: – resignation– retirement – dismissal – retrenchment.

Issue 3: Termination of employment

• Resignation – occurs when an employee wishes to leave a job. Usually a person intending to resign must give notice. If conditions at work leave the worker no alternative but to resign, this may be an issue of constructive dismissal.

• Retirement – when a worker voluntarily leaves a job, usually due to age or health issues. Australia has acted to remove statutory retirement age in most areas. Many Australians now choose to continue to work into their sixties, moving from full-time to part-time or casual employment.

Issue 3: Termination

• Dismissal – includes dismissal with or without notice, unfair dismissal and unlawful termination. Dismissal is an area where workplace disputes frequently occur. The Fair Work Act 2009 (Cth) contains many provisions regulating the system of lawful and unlawful dismissals.

• Retrenchment – refers to the loss of a job because there is no longer a job for the employee to do. There is protection for redundant employees in both federal and state legislation.

Issue 3: Termination

• A number of factors influence the ways in which the law responds to termination, including:– Australia’s obligations under international treaties

– public opinion

– pressures arising from global and national economic circumstances

– the government of the day, its labour policies and affiliations.

Issue 3: Termination

• Protection for employees against termination continues to challenge advocates of workers’ rights, as the global economy and the power of domestic and multinational corporations raise formidable hurdles.

Issue 3: Termination

• Leave is a fundamental right of employees and can be found within ILO conventions and UN treaties.

• Minimum leave entitlements are included in all modern awards and enterprise agreements and are protected under both state and federal legislation.

Issue 4: Leave

The main types of leave available include:

• annual leave

• long service leave

• sick leave

• community service leave

• parental (maternity and paternity) leave, family leave, and adoption leave

• carer’s leave.

Issue 4: Leave

• The connection between work and family has become an increasingly important issue.

• Australia has recently caught up to world standards by introducing a federal Paid Parental Leave scheme, with 18 weeks’ paid leave for a parent earning less than $150 000 per year.

• Under the National Employment Standards (NES), employees are entitled to four weeks’ paid annual leave, 10 days’ paid sick or carer’s leave, two days’ unpaid compassionate leave or carer’s leave as required, and up to 12 months’ unpaid parental leave.

Issue 4: Leave

• Leave has become an important issue. The workplace has had to become more flexible to meet the demands of a changing workforce.

• The Australian Parliament has and is attempting to meet these needs through legislation providing greater entitlements for working families.

• Issues relating to leave, such as demographic changes, will continue to be driving forces for law reform.

Issue 4: Leave