Luật học - Chapter 22: Workplace relations law

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Workplace relations lawChapter 22Learning objectivesAt the end of this chapter you should understand:the interaction between workplace relations law and employment lawthe principal sources of Australian workplace relations lawthe workplace relations systems in Australiathe major public policy factors that underpin workplace relations law the role that international standards play in workplace relations lawthe major common features of Australian workplace relations systemsthe main objects of the Fair Work Act 2009 (Cwlth)the content of the National Employment StandardsLearning objectives (cont.)the way in which an enterprise agreement is distinguished from a common-law contract of employmentthe way in which an enterprise agreement is distinguished from an awardthe major functions of Fair Work Australia and the Office of the Fair Work Ombudsman, including workplace inspectorsthe major roles, rights and responsibilities of trade unions in workplace relations lawthe circumstances in which industrial action is and is not lawfulthe principal remedies against unlawful industrial action and the methods of enforcing workplace relations rights.IntroductionAustralian 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 and obligations in the workplace.Sources of workplace relations lawAustralian 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 systemFrom 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 lawLegislation establishes the systemLegislation has industrial, social and economic objectivesMandatory 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 tribunalsCreation of industrial tribunals with power to make industrial awards on defined matters, and to varying degrees, compulsorily conciliate and arbitrate industrial disputesFeatures of Australian workplace relations law (cont.)Regulation of the role of trade unions and employer associationsRecognition, to varying degrees, of the right to enterprise bargainingProtection, to varying degrees, freedom of association (i.e. voluntary unionism)Creation of specific rights and obligations concerning the termination of employmentProvisions relating to compliance, remedies and enforcement of rights and obligations in workplace relationsObjects of workplace relations lawProvide rights and obligations not available at common lawCodify and expand the common lawProvide rights and obligations across the workforceRedress what is regarded as unequal bargaining power in contractual negotiations between an employer and an employeeContinually changes in response to developments in economic, global, political, technological, workplace and industry conditionsFair Work Act 2009 (Cwlth)Primary workplace relations legislation in AustraliaIts 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 Territoryby 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 authorityas 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 2010Cannot be altered by an employerTogether with pay rates in modern awards and minimum wages provide guaranteed minimum employment terms and conditionsNational Employment Standards (cont.)1. Maximum weekly hours of workRequests for flexible working arrangementsParental leave and related entitlementsAnnual leavePersonal/carer’s leave and compassionate leaveCommunity service leaveLong service leavePublic holidaysNotice of termination and redundancy payProvision of Fair Work Information StatementRegulation by industrial awardsAn 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 122 modern awards.Modern awards cover all employers and employees working in industries/occupations covered by a modern award who earn less than $108 300.Modern awardsMaking of awardsCompliance with relevant legislation and administrative law principles of natural justiceUtilises conciliation and arbitrationParties bound by awardsAward coverage attaches to the type and place of work, and to employees and employers within:a defined industry sectoran occupational group a specific geographic area.Modern awards (cont.)Duration and cancellation of awardsSpecified duration when madeCancellation by industrial tribunal (rare)Variation of awardBy the industrial tribunal that made itInterpretation of awardsBy federal and state courtsAward test casesAllow general rulings of principle to be laid downFair Work Act and common-law contractsFrom 2010 individual statutory agreement-making prohibited i.e. previously Australian Workplace Agreements or Individual Transitional Employment AgreementsFair Work Act provides that common law contracts negotiated by employees whose annual earnings exceed a threshold of $113 800 need not comply with award conditions, although they will be subject 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 agreementsCollective 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 employeesMulti-enterprise agreements made between two or more employers and groups of their employeesGreenfields agreements—single or multi-enterprise agreements relating to genuinely new enterprises before any employees covered by the agreement are employedEnterprise 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 agreementsAll 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 organisationsThe 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 organisationsThe 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 environment.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 AustraliaReplaced 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 systemDeals with cases of unfair and unlawful dismissalDeals with the resolution of industrial disputes and applications for protected industrial actionMakes and deals with modern awardsDecisions must take into account public interest including the state of the national economy.Office of the Fair Work OmbudsmanIndependent statutory agency created by the Fair Work ActRole 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 lawsFair Work inspectors may:conduct education campaignsconduct compliance auditsinvestigate workplace complaintsinvestigate suspected contraventions of federal workplace relations lawtake steps to enforce relevant workplace law through the courts. Forms of industrial actionBy employees:Picket linesWork bansWork-to-rule campaignsBy employers:Lock-outsLawfulness of industrial actionContract lawLaw of torts:Industrial tortsInducement to breach contractual obligationsConspiracy to injureIntimidationTrespassStatute law; industrial action may be in breach of:industrial awardsorders of industrial tribunalsworkplace relations statutes.Protected industrial actionProtected industrial action means the party taking the action is immune from civil liability to the other party and is:allowed while negotiating employment agreementsundertaken by parties to negotiations and not third partiespreceded by written notice of intended protected action at least three working days prior to action being undertakenpreceded by genuine attempts for agreementprotected for specified period of time.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 enforcementStrike payPayment of wages to employees engaged in industrial action is unlawful unless the action is caused by genuine health and safety issues.Orders preventing industrial actionFair 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 action:DamagesInjunctionsSpecific performanceSecondary boycotts:Industrial action taken involving action directed at innocent third party, with whom the target employer is dealing unlawful under the Competition and Consumer Act 2010 (Cwlth)Industrial action and enforcement (cont.)Conciliation and arbitration of disputes:Undertaken by relevant industrial tribunal; legislation restricts powers of tribunalEnforcementUnlawful industrial action:Civil actionProsecutionIndustrial offences under statute:Fair Work inspectorsStatutory office holdersBreaches of awards or agreements:Relevant courts