Kinh tế học - Chapter 21: Employment law

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Copyright © 2000 McGraw-Hill AustraliaEmployment lawChapter 211Copyright © 2000 McGraw-Hill AustraliaEmploymentPublic Service Act 1922 (Cwlth) protects employees from changes in government by ensuring political impatiability.2Copyright © 2000 McGraw-Hill AustraliaEmployer-employee relationshipControl Test - Nature - Degree of control able to be exercised by a person over the manner in which the work is to be performed by another.Delegation Test - Discretion of service provider to delegate work to another party.Business Test - Commercial factors showing whether working on own account or for someone else.Integration Test - Is work being performed on integral part of the business operation of the person engaging the services of the worker?Pragmatic Test 3Copyright © 2000 McGraw-Hill AustraliaPragmatic testsOwnership of toolsOwnership of equipment or stationeryMethod of remunerationPayment of superannuation, insurance or workers’ compensationDeduction of PAYG income taxUse of business name or business structureThe ratio of money spent to money earned after deduction of expensesWhether invoices are required to be submitted prior to paymentThe responsibility for losses or for rectifying errors or mistakes in the quality of work doneThe freedom to work for other peopleWhether the work is simply an identifiable job for a specified period of time 4Copyright © 2000 McGraw-Hill AustraliaOptionsEmployeeIndependent Contractor - Contracts for serviceAgent - Person who makes a contract on behalf of another with a third party.If employee (substance), statutory compliance required including:Income tax lawsSuperannuation guarantee lawsWorkers’ compensation lawsPayroll tax lawsWorkplace regulations taxationOccupational health and safety laws5Copyright © 2000 McGraw-Hill AustraliaContractors have protection against unfair protectsWorkplace Relations Act 1996 (Cwlth)S127A, 127B and 127C: Allows protection to contractors with respect to contracts that are unfair, harsh or unconscionable, or against the “public interest”.Trade Practices Act 1974 (Cwlth)S51AC: Unconscionable conduct in business transactions.S51AD: Industry codes to be mandatory.6Copyright © 2000 McGraw-Hill AustraliaOutsourcing/contracting outEMPLOYEE Contract of Service Labour Payment LAND HIRE COMPANY Supply Payment LabourBUSINESS7Copyright © 2000 McGraw-Hill AustraliaFormation of the Employment Contract Intention to create legal relationsOffer and acceptanceConsiderationCapacity of parties to enter into contractReality of consentLegality of object8Copyright © 2000 McGraw-Hill AustraliaTerms of the Employment ContractExpress terms (spoken/written)Nature of workLocation of workWagesRemunerationHours of workStatement of duties/position description (employee responsibility)9Copyright © 2000 McGraw-Hill AustraliaTerms of the Employment Contract - employer’s dutyImplied terms (from circumstance of offer and acceptance):To provide workTo provide remunerationTo not destroy or seriously damage the relationship of trustTo ensure safety of employeesBy the Workplace Relations System: Workplace Relations Act 1996 (Cwlth) Annual Holidays Act 1994 Long Service Leave Act 1922 (Vic)10Copyright © 2000 McGraw-Hill AustraliaTerms of the Employment Contract - employee’s dutyImplied terms (from circumstance of offer and acceptance):To work in a skilful and competent manner, and to exercise reasonable care.To obey an employer’s lawful and reasonable commands (a command by the employer that exposes an employee to an unreasonable risk of injury is not a lawful command).To provide faithful service (also known as the duty of fidelity).To not prejudice an employer’s interests or act in a manner hostile to the employer’s interests.To maintain confidentiality after termination of the contract (e.g. not to disclose trade secrets).To account for moneys and property received on behalf of the employer.To hand over inventions made during the course of employment.To disclose to an employer information relevant to the business of the employer.By the Workplace Relations System: Workplace Relations Act 1996 (Cwlth) Annual Holidays Act 1994 Long Service Leave Act 1922 (Vic)11Copyright © 2000 McGraw-Hill AustraliaTerms of the Employment ContractBy Industrial Bodies eg. Australian Industrial Relations CommissionMinimum mandatory standards:Hours of workWage ratesClassificationsRostersOvertimePenalty ratesConsultationTraining12Copyright © 2000 McGraw-Hill AustraliaLawful termination of Employment Contract Termination by deathTermination by the dissolution or bankruptcy of the employerTermination by sale of business by the employerTermination by frustration of contractTermination by abandonment of contractTermination by breach of contractTermination by noticeTermination without noticeRedundancySuspension by employees13Copyright © 2000 McGraw-Hill AustraliaUnlawful termination of employmentDismissals prohibited by law Unfair dismissals: Unfair dismissal is assessed as being “harsh, unjust or unreasonable”. Assessment based on objective analysis of all circumstances applicable to employer and employee, using “reasonable person test”: - reason for dismissal - procedural fairness(using concept of “a fair go all round”)Constructive dismissals14Copyright © 2000 McGraw-Hill AustraliaRemedies for unfair dismissals (via legislation)Employee:re-employed in the same positionre-employed in an alternative positionpaid an amount of compensation.15Copyright © 2000 McGraw-Hill AustraliaRemedies for breach of the Employment Contract Employer’s remediesTermination of employmentDamagesInjunctions and specific performanceSuspension of an employeeOrders by an industrial tribunalRetrainingDisciplinary proceduresContract negotiationPrivate mediationWithdrawal of discretionary benefitsReallocation of duties or hours of work16Copyright © 2000 McGraw-Hill AustraliaRemedies for breach of the Employment Contract Employee’s remediesResignationDamagesInjunctions and specific performanceUnfair dismissal proceedingsUnlawful terminationClaims for sums dueOrders by an industrial tribunal17Copyright © 2000 McGraw-Hill AustraliaLiabilities and rights of employers and employees to third partiesVicarious LiabilityEmployer is liable to a third party for negligent acts or omissions of an employee, carried out in the course of employment, where these acts or omissions cause loss or damage to a third party.Liability for ContractsEmployer is liable for contracts entered into by an employee as agent of employer.Employee liable for contracts if act outside of authority given by employer.Liability for Criminal ActsCriminal acts of employee conducted in course of employment in strict liability cases without intention to commit the act results in vicarious liability. Employer liable - where at direction of employer.Employee liable - no employer direction but intention to commit the acts.18Copyright © 2000 McGraw-Hill AustraliaStatutory regulation of employment relationshipWorker’s compensationOccupational Health and SafetyAnti-discrimination and equal opportunityOccupational superannuationWorkplace privacy19Copyright © 2000 McGraw-Hill AustraliaWorker’s compensation(Federal and State legislation)Provides wage and salary maintenance and prescribed benefits for injured workers e.g. Pensions Lump sums Medical expenses20Copyright © 2000 McGraw-Hill AustraliaWorker’s compensationCoverage:Work-related injuries“Worker” as defined in legislationInsurance obligations:Mandatory Workers’ Compensation Insurance required by employers with “Work Cover”.Employee benefits:Weekly benefits for initial periodMedical and hospital benefits are covered.Economic and non-economic lossesRetirement provisionsRehabilitation and return to work obligationsCommon Law Access: Dependant on relevant legislation.Dispute Resolution: Dependant on relevant legislation.21Copyright © 2000 McGraw-Hill AustraliaOccupational Health and SafetyEmployer and employee dutiesRisk identification and codes of practiceSanctions and enforcement22Copyright © 2000 McGraw-Hill AustraliaDuty of care23Copyright © 2000 McGraw-Hill AustraliaAnti-discrimination and equal opportunity legislationHuman Rights and Equal Opportunity Commission Act 1986Affirmative Action (Equal Employment Opportunity for Women) Act 1986Racial Discrimination Act 1975Sex Discrimination Act 1984Disability Discrimination Act 1992Workplace Relations Act 1992Workplace Relations Act 199624Copyright © 2000 McGraw-Hill AustraliaAnti-discrimination and equal opportunity legislationNature of discriminationRace SexMarital statusPolitical beliefReligious beliefDisabilityPhysical impairmentIntellectual impairmentFamily responsibilities25Copyright © 2000 McGraw-Hill AustraliaAnti-discrimination and equal opportunity legislationComplaints and disputesConciliation resolution at disputesTribunal26Copyright © 2000 McGraw-Hill AustraliaAnti-discrimination and equal opportunity legislationAffirmative actionAffirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cwlth)For employers with 100 or more employees:To ensure appropriate action to eliminate discrimination by employers against women in relation to employment matters.Measures to promote equal opportunity for women in employment matters.27Copyright © 2000 McGraw-Hill AustraliaAnti-discrimination and equal opportunity legislationSexual harassmentSex Discrimination Act 1984 (Cwlth)One person subjects the other to an unsolicited and unwelcome act of sexual conduct or physical intimacy in circumstances where the other person has reasonable grounds to feel offended, humiliated or embarrassed.28Copyright © 2000 McGraw-Hill AustraliaAnti-discrimination and equal opportunity legislationOccupational superannuationTo fund and maintain living standards for an ageing population in the future. Requires employers to make superannuation contributions on behalf of their employees at a prescribed percentage of the employee’s wage or salary, as defined by the legislation, to a complying fund.Rate: 2000-01 8% 2002-03 9%Penalties for non-compliance: Non taxable deduction Superannuation Guarantee Charge.29Copyright © 2000 McGraw-Hill Australia