Employment Laws in Australia

Discuss About The Employment Relations In Australia Bamber.

Employment laws within a jurisdiction define the relationship between employer and employee and regulate the employment relationship in case of disputes. This also means that ideally employment laws define the rights of the employees against the employers and the minimum standards of employment conditions and remuneration which the employer must provide. In Australia various state legislations define employment relationships and form the employment laws for that state (Wright and Lansbury 2016). The idea of having a set standard of minimum wages prescribed by statutory provisions was widely researched and taken into consideration. In this regard, it is worthwhile to refer here that, such legislation can only be enacted through proper sanction of law and judicial interpretations which emphasize the need for such legislative actions. In light of the same the case of Ex parte H.V. McKay (1907) 2 CAR 1 also known as the sunshine harvester case made some notable observations which later led to the enactment of employment legislations which would pave the way for minimum employment standards as far as the remuneration aspect is concerned (Walsh 2015). To be precise this leading case declared that there needs to be a statutorily defined minimum wage limit and the same would have to be prescribed by the legislature (Stone and Arthurs 2013). The judgment was delivered by the Commonwealth Court of Conciliation and Arbitration and it was the primary basis for the enactment of employment legislations that made such prescriptions. This position was further reiterated in R v Barger [1908] HCA 43 and it was declared that such regulatory prescriptions need to be made when dealing with minimum standards of remuneration to be received by the workforce (Stewart et al. 2016). The ancillary observations made in the case Ex parte H.V. McKay (1907) 2 CAR 1 were that for an unskilled laborer the remuneration should be such that they would be able to support their family and themselves with a minimum standard of living. For skilled labor on the other hand the Commonwealth Court of Conciliation and Arbitration declared that their remuneration should be higher than unskilled labour and the remuneration would be proportionate to the skills that these labourers would bring in with them. In the prevailing scenario minimum wage prescriptions, at the statutory level, provides for uniformity and adopts an equitable approach to minimum wage provisions. In light of the same, in the present scenario minimum wage prescriptions in Australia have increased to a $672.70 per week and thus is an additional $15 higher than the previous minimum wage rate. In such a case the minimum wage provided to the workforce largely exceeds the prescriptions of the judgment in Ex parte H.V. McKay (1907) 2 CAR 1 as the prevailing rate of wages ensures that the worker’s standard of living is beyond the bare minimum and provides for a better life (Stewart 2013). Thus the amendments in employment law in relation to the minimum rate of remuneration have been devised to provide for a better standard of living than provided for by the original inception of the concept.

Contracts in Employment Relationships

Contracts are agreements where two or more parties agree to act or refrain from acting in a particular situation (as defined by the terms of the agreement) in exchange for a specific consideration. All forms of employment relationships are governed by contracts and these are known as employment contracts. These contracts define the nature, duration and remuneration of the workers and also in turn set out the employers main obligations towards the employees. There are various forms of contractual terms which can be broadly classified into two categories- Implied terms and Express terms. Express terms are those terms that are specifically incorporated into the contract (Selwyn and Emir 2014). On the other hand, implied terms are those which are not specifically incorporated into the terms of the contract but can be inferred as a part of the contract due to the nature of the contract, the terms or any statutory provisions that govern the contract. In the same way it may be inferred that an implied term would depend on the way the terms or the nature of the contract is interpreted by an adjudicating authority. In the leading judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 it was held by the court that there is no implied term in employment contracts relating to mutual trust and confidence. In the same way it would be useful to note other observations made in the case which stated that there should be remedies available to employees for unfair dismissal from their term of employment. Common law principles, which are developed through judicial pronouncements in commonwealth countries, are applicable within the jurisdiction of the Australian commonwealth (Sargeant 2016). Under common law principles there are no remedies available to employees in case of unfair dismissal and the employer would not even be required to provide a reason for such a dismissal. Thus, it was important to judicially incorporate remedies for such a situation in order to adequately protect the rights of the employees. The leading case of Ridge v Baldwin [1963] UKHL 2 reiterated this common law position. The judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 set out and clarified that in case of the HR policies of the bank being amended the same would not be a breach of the employment contract in terms of an implied term of mutual trust and confidence (Rudman 2013). It thus laid down that an aggrieved employee would only be able to initiate an action against their employers for a specific breach of the employment contract. In case there are other omissions made by the employer which have detrimental effects on the employees but do not specifically breach the employment contract then the same would not amount to an act which the employee can initiate an action against (Nettelbeck et al. 2016). Thus a breach of the employment contract is of paramount importance in cases of an action against an employer by an employee.

Discrimination Laws and Regulations

Discrimination laws define and regulate differential treatment in various spheres.  It is important to note that these do not only pertain to the employment relationship but are quintessentially required in the field of employment law. In case of such laws a complete prohibition on the idea of differential treatment especially relating to employment opportunities. This is mainly because the abuse of power by an employer would negate the concept of equal employment opportunities in such a sphere. The employment laws that primarily define and regulate discrimination in the Australian commonwealth are the following legislations (Freedland et al. 2016):

• Age Discrimination Act 2004
• Disability Discrimination Act 1992
• Australian Human Rights Commission Act 1986
• Sex Discrimination Act 1984
• Racial Discrimination Act 1975.

The primary regulatory authority which uses the acts as the governing body for discriminatory laws in the jurisdiction of the Australian Commonwealth is the Australian Human Rights Commission which was given statutory force and established by virtue of the enactment of the Australian Human Rights Commission Act, 1986. This body primarily acts as the interpreting authority in case of disputes that allege discriminatory behavior. In case of differential treatment in the same in the workplace or for discriminatory conduct in terms of providing employment opportunities the same would be the presiding body to determine the dispute at the first instance. This thus acts as a court of first instance in these circumstances. The above stated regulations thus employ the provisional mechanisms prescribed within them to ensure that there is not differential treatment on the basis of the specific prohibitions in these acts. These acts thus protect employees from various kinds of discrimination and thus use the same to ensure employers meet their obligations as far as the employment relationship is concerned. However there are specific limitations to the prohibitions stated in these legislations in order to ensure that any employer is not deprived of recruiting better suited employees for the job profile purely due to prohibition on differential treatment. This thus means that if the job profile that the employment opportunity pertains to specifically required the presence and/or absence of a particular attribute then the same would exclude the employer from being legally pursued for discrimination. This is because the attribute that the discrimination was based on is of material importance to the employee’s ability to perform the duties required of that particular job profile. Resultantly, the job profile would need these attributes to be present or absent to make a suitable recruitment. In such a case discriminatory laws would not play a part in the same and hence it would not be sufficient cause of action to initiate legal proceedings against such an employer in such a case (Fishkin 2013). Thus the employment laws in force in Australia successfully account for the challenges in the field and sufficiently cover all the forms of discrimination that needs to be curbed. Additionally it also provides limitations on these mandates to ensure that employer are not unfairly disadvantaged in anyway. Thus the discriminatory laws in Australia sufficiently cover their mandate.

Uniformity in Legal Codes

A uniform code which sufficiently handles the mandate of a particular aspect of law is of utmost importance. Uniformity furthers equality and the same is the prime objective of having employment laws in a particular jurisdiction. The ultimate aim of employment laws is to ensure that the laws of the state do not disadvantage any party to the employment contract. In the same way the contract of employment must not infringe the basic human rights of a particular individual who is a part of the employment contract. The Australian concept of having harmonized uniform legal codes was first coined in John Howard’s term as Prime Minister. However it would be decades before such harmonized codes of practice could be implemented on a national level. In this way it would completely change the whole way in which the parties conduct employment relationships and more uniform and fair rights would be available to the employees. Australian health and safety regulations formulated a total of 23 codes of safety regulations which would be incorporated into the framework of employment laws at a national level. Victoria however opted to incorporate only 7 of the same into their legal framework (Blanpain and Bisom-Rapp 2014). These codes which they did choose to adopt were decades old and repealed in various jurisdictions. Moreover, with the idea of uniform codes and practices would not be successful unless the idea was incorporated into the legal framework of all the various states within the jurisdiction. Moreover health and safety codes are required to ensure that employees in a particular jurisdiction provide for work environments that are safe for people to work. Thus, in effect the workforce in Victoria would be governed by laws that are dated and not amended to fully account for the present global scenario. Thus in order to do the same the changes in global work environments would have to be considered and the conditions available to employees in Victoria would be deemed ineffective. The ineffective implementation of employment laws within a particular jurisdiction could be a major failure to observe human rights and the same could lead to more consequential legal challenges. Thus to account for the same the laws in Victoria would have to designed in a way that incorporates all the various prescriptions of the 23 codes of practice. Only through such an incorporation can the country as a whole account for a uniform code of practice and provide a comprehensive basis for the implementation of the same.

In West v Holcim (Australia) Pty Ltd [2017] FWC 2346, it was held by the court that there are some safety requirements that needs to be taken into consideration which has to be prescribed. These prescriptions of safety need to be made in accordance with the needs of the legislation. In cases when it is found that an employer has breached the safety requirements and as a result of that the employees have to suffer,  there shall be a case of negligence (Stone and Arthurs 2013). The employees and the employers are bound by the code of legislations. Therefore, the workplace has to ensure that there are safety regulations that the employers abide by. Therefore in handling such situations, the hired labour shall be made to abide by such regulations and has to also learn how to deal with the handling of equipment. The employer also has to ensure that there is proper supervision and the people employed in the workplace abide and are governed by such regulations. There is also a need to keep a track on how injury and cases of harm inflicted on the employers are taken into consideration. In cases when the laborer is dealing with harmful equipment, it is obligated that the employer takes all necessary precautions. While operating on a harmful equipment, if it is found that there was not necessary training to deal with such equipment, then the case of negligence shall also take place. If the employer does not provide any supervision and the employee is seen to be harming and injuring himself, then in such cases, it can be claimed that there was no proper safety requirement that was followed at the workplace. In the instance of the above mentioned case, it was found that the employer had not adhered with the safety requirements and therefore, the court held that the employer was negligent and thus liable. The court was of the opinion that the employer had not adhered to the basic standards of care. The court also opined that in cases when the dismissal is unfair and without any unjustified reason, the employer shall be responsible for unfair dismissal. The dismissal of the employee was illegal and therefore the court held that the employer was liable for conducting the practice of dismissal unfairly. The employer was held liable for dismissing the employee without any prior reason and for unfairly dissing the employee. The court held in the favour of the employee and also ordered that the employer be allowed to reinstate the employee as the reason behind the dismissal was unfair. The employer was ordered to make sure that the employee be allowed to be reinstated and thus he shall also be allowed to begin his work as the reason behind the dismissal was unfair and also the employee had not done his job properly and without any justification and any forbearance to justice and fairness (Beus, McCord and Zohar 2016). The safety regulations were not complied with.

Domestic violence at workplace has always been a difficult situation and it has been pervasive all through workplaces without any forbearances to justice. There has been an ideology in the regard of domestic violence at workplace because throughout the time immemorial it has been found that legislative steps have been taken to ensure the rights of the employees (Wibberley, Bennett and Hollinkare 2017). The employees have been subject to immense trauma in the workplaces as they have faced tricky situations. The reason behind having strict rules and regulations at workplace is because women are tortured and they do not feel safe and secure at the workplaces they are working (Hofmann, Burke and Zohar 2017) .Elizabeth Broderick’s ideology is an important way of addressing the burning issue of domestic violence at workplace and the legislation actions to that respect also point towards the same point that there has to be strict laws that ensure that people feel secure and safe at workplace. Facing domestic violence at workplace have been a burning and pressing issue and domestic violence at workplace as well as household domestic violence are intertwined in the way that employees who have had to face such situations and have survived the trauma of domestic violence might not be able to perceive the general working of the workplace and might also feel threatened. The employees shall feel threatened and also the whole incident will have an adverse effect on the total behavior and get up of the employee(Wright and Lansbury 2016).. Therefore, the process of elimination of domestic violence should not be seen as an isolated step and it shall be seen as a stumbling block in the development and betterment of the workplace environment. Incorporating strict laws and regulations shall not be an important and effective remedy in relation to domestic violence and therefore only by means of laws and legislation, it cannot be ensured that the regulation of workplace environment will be bettered as well as the relation between the employer and the employee will recover. Therefore, though Elizabeth Broderick’s ideology has a cogent point but her points cannot be taken in the right earnest so much so that her points cannot be legislatively enacted. Therefore, it is easy to say that combining domestic violence and family violence in the whole concept of violence shall not incorporated as a legislative regulations and shall also not be part of any enforcement contractual obligation. There cannot be a single code taking into account both domestic and household violence as it is not legislatively viable. Family ethics and workplace violence cannot be combined in one code and they cannot be amalgated and also it is not possible to form a unified code. The concept of a unified code for addressing the issue of domestic and workplace violence shall be detrimental to the whole working of the workplace and the legislation shall not be able to uphold the interest of the workplace. The code shall not be in light of the Australian Commonwealth and therefore it shall not be prudent to incorporate two laws into one code.

Reference list

Blanpain, R. and Bisom-Rapp, S., 2014. Global Workplace: International and Comparative Employment Law Cases and Materials. Wolters Kluwer Law & Business.

Fishkin, J., 2013. The Anti-Bottleneck Principle in Employment Discrimination Law. Wash. UL Rev., 91, p.1429.

Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds., 2016. The contract of employment.Oxford University Press.

Nettelbeck, A., Smandych, R., Knafla, L.A. and Foster, R., 2016. Fragile Settlements: Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada. UBC Press.

Rudman, R., 2013. New Zealand Employment Law Guide (2013 edition). CCH New Zealand Limited.

Sargeant, M., 2016. Age discrimination in employment.Routledge.

Selwyn, N.M. and Emir, A., 2014. Selwyn’s law of employment. Oxford University Press, USA.

Stewart, A., 2013. Stewart’s guide to employment law (Vol. 3). Sydney: Federation Press.

Stewart, A., Forsyth, A., Irving, M., Johnstone, R. and McCrystal, S., 2016. Creighton and Stewart’s Labour Law.The Federation Press.

Stone, K.V. and Arthurs, H. eds., 2013. Rethinking workplace regulation: Beyond the standard contract of employment.Russell Sage Foundation.

Walsh, D.J., 2015. Employment law for human resource practice.Nelson Education.

Wright, C.F. and Lansbury, R., 2016. Employment relations in Australia. Bamber, GJ, Lansbury, RD, Wailes N & Wright CF, International and Comparative Employment Relations: National Regulation and Global Changes.

Hofmann, D.A., Burke, M.J. and Zohar, D., 2017. 100 years of occupational safety research: From basic protections and work analysis to a multilevel view of workplace safety and risk. Journal of Applied Psychology, 102(3), p.375.

Beus, J.M., McCord, M.A. and Zohar, D., 2016. Workplace safety: A review and research synthesis. Organizational psychology review, 6(4), pp.352-381.

Wibberley, G., Jones, C., Bennett, A. and Hollinrake, A., 2017. Domestic violence a management challenge: How trade unions can help in overcoming challenges to gender equality in the workplace.

Wright, C.F. and Lansbury, R., 2016. Employment relations in Australia. Bamber, GJ, Lansbury, RD, Wailes N & Wright CF, International and Comparative Employment Relations: National Regulation and Global Changes.