Business and Corporate Law: Human Resource Management

Introduction

Fair Work Australia (FWA) focuses on relations in the workplace and provision of help to employees and employers. According to Wright, one of the roles of FWA involves varying awards at the workplace (5). The agency defines the bargaining powers of both employees and employers through the Fair Work Act 2009 (Wright 6). Recent evidence indicates that FWA has led to a decline in the costs associated with real labor and real wages (Wright 6).

The Relevance of Anti-Discrimination Legislation in Employment

The anti-discrimination legislation discourages unfair treatment of individuals in the workplace. Any form of discrimination, whether based on religious affiliation, disability, race, color, or other elements, is averted with the help of this law (Harpur, French and Bales 193).

The Duty of Employees in Relation to Confidential Information

According to the Australian common law, all employees have a role to play as far as faithfulness, fidelity, and loyalty are concerned (Fair Work Commission par. 2). The duty is derived from the employment contract. In addition, fiduciary obligations can be used to define these roles. With regards to confidential information, employees are prohibited from using data obtained during their course of employment in a manner that is likely to damage the employer (Fair Work Commission par. 3).

Bargaining in Good Faith

According to Catanzaritti, bargaining in good faith ensures that negotiations between enterprises are conducted in a fair manner (par. 1). Section 228(1) of FWA articulates various conditions under which a bargain is regarded to be in good faith.

The Relevance of s.51(20) of the Constitution in Relation to Australian Workplaces

Prior to the Corporations Act case of 1989, issues to do with powers relating to incorporation of financial and trading entities in Australia raised major concerns. Section 51(xx) of the constitution addresses this problem. According to Carney, most arguments in this case were based on the “convention debates (and) the draft Constitution Bills of 1891, 1897, and 1898” (p. 8). However, these bills and the ensuing debate were however not sufficient enough to interpret s51(xx).

The relevance of this section with regards to Australian workplaces is obvious. For example, it has settled the arguments surrounding the powers associated with corporations. The Constitution gives the Commonwealth legislative body some privileges. For example, the entity has the right to make laws on matters relating to financial and trading corporations formed within its jurisdiction. Foreign organizations are included in this section.

Instances where Reasonable Notice is not Effective Enough to Terminate an Employment Contract

Employment contracts come to an end through the direction of either the employer or the employee. Consequently, requirements touching on reasonable notice should be fulfilled before termination. However, in some instances, the notification is not effective enough to bring to an end an engagement.

According to Wright, ‘reasonable’ notice may be deemed ineffective if its terms are proven to be ‘unreasonable’ (6). In addition, factors leading to the termination may render the notice futile. For instance, employees can be dismissed if valid reasons regarding their conduct or capacity are given (Wright 7). Reasonable notice is also ineffective in cases where termination is related to performance and warnings had been given in advance.

Sophie vs Bank Manager: Denial of Pay due to Refusal to Work outside Normal Rostered Hours of Monday to Friday

The case raises the question of whether or not Sophie had any grounds on which to compel the bank manager to address her point of view without withholding her salary. The Fair Work Act of 2009 gives directions in relation to ordinary hours of work that are agreed upon. To this end, ordinary working hours are defined as those agreed upon by the employees and their national system (Fair Work Act par. 38).

There are cases where there is no agreement about these hours. Under such circumstances, fulltime employees are supposed to work for 38 hours (Fair Work Act par. 38). On their part, ‘non-fulltime’ employees are supposed to work for less than 38 hours. The law acknowledges that in some instances, the employer may be forced to make changes to the hours. However, the employer must consult the employees affected by the proposed changes (Fair Work Commission 6).

Based on the explanation given above, it is apparent that Sophie’s employer had no right to impose the changes on the employees. In addition, they erred by withholding the salaries. As such, Sophie should launch legal proceedings against the employer based on the fact that she was not consulted. It is important to note that threats by the employer to hold salaries contravene fair working principles.

The Fair Work Commission stipulates that consultations regarding alterations of ordinary working hours do not apply in cases where employees have irregular, unpredictable, and sporadic working hours. However, considering that she is a bank teller, Sophie is covered by the consultations clause. The reason is that her working hours are regular.

However, Sophie should be wary of other award provisions touching on notice requirements and work scheduling. The reason is that the provisions for consultations are read in conjunction with the award provisions, if any. The bank manager engaged in unfair treatment, which can be regarded as discriminatory. Withholding employees’ salaries is a form of unfair treatment unless there was an agreement between the two parties regarding the working hours.

Gorge Ltd. vs. Bob: Unfair Dismissal

The case raises the question of whether or not Gorge Ltd. is liable of unfair dismissal with regards to Bob. According to the Fair Work Act 2009, fair dismissal occurs if the employer complies with the Fair Dismissal code (Clayton UTZ 11). Unfair dismissal results if the employer fails to adhere to the requirements set down in the act.

It is noted that Bob and Larry had a fight. However, Larry was the only one who was dismissed. His colleague got away with only a suspension pending further investigations. An employer is allowed to carry out summary dismissal without any notice (Clayton UTZ 5). However, the employee must have engaged in acts amounting to serious misconduct, such as fighting. Gorge Ltd. may oppose the claims made by Bob in the sense that he engaged in serious misconduct.

FWA also grants dismissal without notice in situations where the employee is a casual laborer. Bob may have been dismissed on the basis of “genuine redundancy” with regards to misconducts (Clayton UTZ 13). The employee can file a complaint relating to unfair dismissal on the basis of discrimination if his conduct did not meet the criteria set out in the act. Gorge Ltd. may be held liable of unfair dismissal if thorough investigations into the incident were not undertaken (Clayton UTZ 29). The employer may win the case if the Bob was dismissed on the basis of redundancy or other genuine reasons.

Fair Work Act 2009 (Cth.): Making Collective Agreements

Collective agreements are made between employees and their employers. They include, among others, enterprise agreements. Such an arrangement defines the rights and obligations relating to the engagement of the parties. The first step in the process involves communicating notifications to employees in relation to their representational rights (Australian Government 7).

Employers are supposed to give employees a copy of their representational rights as stipulated in the Fair Work Regulations 2009. The contents of the notice are prescribed under the FWA. Employees are allowed to have representatives if they want to.

The second step entails bargaining (Australian Government 7). The negotiations must be done in ‘good faith’. The negotiations are followed by voting to express opinions over the proposed agreement. After passing the ‘better off overall test’, the agreement is the approved and lodged (Australian Government 14).

Estelouder Limited vs. Employees

Can Estelouder Ltd. take legal action against its employees and their union for protesting and disrupting normal business? Fair Work Act 2009 and other legislations define industrial actions as those where employees engage in practices that limit, restrict, or delay work performance (Fair Work Commission par. 9). In addition, the employees may ban, limit, or restrict performance and acceptance of work.

The success of the legal action taken against Estelouder employees depends on a number of factors. For instance, some industrial actions are protected under the Fair Work Act 2009. If the action taken by the employees is protected, the company will not be in a position to launch a legal battle. The employees engaged in actions expected of them in an industrial petition without endangering lives or property.

Unit MBS501 Final Exam Semester 1 2009: Human Resource Management Law

Duty to Provide Work and Duty to Pay

The duty to provide work is not an obligation for every employer under common law. However, the duty to pay is mandatory subject to the services rendered by the employees. The common law defines the obligations of both the employees and the employers. Employers are not obliged to provide work to the employee. However, wages due under the contract must be paid (Waarden 68). On the other hand, employees are bound by the common law to work and observe secrecy in relation to confidential information (Waarden 68). In addition, the workers should provide the right services and obey the orders given by employers.

The duty to provide work is not an obligation to the employer due to the varying nature of jobs and employment contracts. An employer provides an employee with work depending on availability as long as the latter benefits from the time spent in the contract. Exceptions to the rule are based on the fact that under certain contracts, it is essential that the employee be given an opportunity to work. For instance, a contract may be breached if an employee working on a commission basis was denied work.

Susie vs. Perth News Ltd.: An Unfair Dismissal?

Can Susie claim statutory remedy under the circumstances considering that she signed her resignation letter after she was accused of stealing?

According to Clayton UTZ, chances of unfair dismissal are likely to occur if the Fair Work Commission determines that the employee was relieved of duty under unjust, unreasonable, and harsh conditions (6). In addition, dismissal is unfair if the employee was ‘actually dismissed’.

According to Wright, the changes made in the Workplace Relations Amendment Act 2008 include the abolition of the Australian Workplace Agreements [AWA] (6). Other changes involve the establishment of a “no disadvantage test” (Wright 5). Under the previous legislation, FWA could not make orders dismissing an application before formal hearings on the matter are held. However, currently, FWA has these powers (Wright 6). The Fair Work Act 2009 provides that employee should be notified of the reasons for termination. In addition, they should be provided with a chance to defend themselves (Clayton UTZ 21).

Susie was served with the reason for termination. She was also given the opportunity to defend herself. Consequently, her option to resign does not entitle her to any statutory remedy. The only reason she gives for her resignation is embarrassment as a result of being presented with the opportunity to defend her person. Her argument is unreasonable. The conduct of the employer cannot be regarded as having compelled her to resign.

Fair Work Australia

Fair Work Australia (FWA), also known as the Fair Work Commission, was established through the Fair Work Act 2009. It commenced operations on July 1, 2009 (Wright 11). The duty of the body is to oversee various matters relating to workplaces.

FWA replaced a number of organizations. Some of them include the Australian Industrial Relations, Australian Fair Pay Commission, and Australian Industrial Registry (Wright 13). In addition, some functions of the Workplace Authority and Australian Fair Pay Commission Secretariat were taken over by the new entity (Wright 13).

The organization is mandated to carry out various roles in the workplace. Such duties include determination of unfair dismissal claims (Clayton UTZ 8). FWA defines unfair dismissal by stipulating various factors that constitute the same. In addition, the act determines eligibility for the application of a claim based on irregular dismissals.

Union Rights are Overregulated

Rights of entry refer to the Commonwealth workplace laws regulating the entry of officials, including trade unionists, into premises (Fair Work Act 26). According to the Fair Work Act 2009, organizations should be registered by the Fair Work Commission. Consequently, the process is highly regulated for those intending to form these associations.

Good Faith Bargaining

According to Catanzaritti, good faith bargaining entails a method of coming up with collective agreements (1). One of the requirements of this process involves desisting from unfair conducts. Such activities are known to undermine collective bargaining. The Fair Work Act 2009 sets up guidelines that all employees and unions must follow in the process of establishing collective agreements.

Trust and Confidence in an Employment Engagement in Australia

Is the hospital under any contractual obligation to investigate the allegation in any particular way?

Based on a previous case, Harpur et al. observe that ‘a contract of service imposes upon the parties a duty of mutual respect’ (220). The above observation was made during the infancy stages of the law relating to unfair dismissals. It was made in reference to Wilson vs. Racher, 1974. In a similar case of Western Excavating Ltd. v. Sharp [1978], the Court of Appeal determined that constructive dismissal can only occur under specific circumstances (Harpur et al. 232). A case in point is where the employer breaches implied or explicit terms of a contract, amounting to repudiation of the same.

Requirements for implied duty have been developed and refined further, particularly in relation to the conduct of employers. The duty is flexible, something that is seen in subsequent cases, such as Johnson v. Unisys [2001] (Wright 7). Consequently, Riley’s employer is not under any particular obligation to investigate the allegation.

Relevance of Company Policies with Respect to Employer’s Contractual Obligations

Generally, the policies of a given company impact significantly on the development of collective agreements between employers and employees. However, contractual obligations of the employer are always above the regulations of the organization since they are stipulated explicitly in the law.

‘Protected Action’ in Australia and its Relationship to Ballots

According to Clayton UTZ, protected action provides participants with immunity against civil liability under territorial or state laws (32). However, industrial actions must not result in the destruction of property or personal injury. One of the requirements for protected action is that it should “…qualify authorization by secret ballot” (Clayton UTZ par. 33). The requirement ensures that employees can only claim action.

Acts of Discrimination

Are the two acts of discrimination lawful or unlawful?

According to Harpur et al., the conduct of employers must not adversely affect existing or prospective employees (226). In addition, such acts should not be based on the individual’s sex, age, color, race, family, and other factors. However, it should be noted that discriminatory actions are not always unlawful. Some ‘lawful reasons’ may inform the decision taken by the employer. According to Clayton UTZ, some of the actions that cannot be regarded as discriminatory include those related to necessary job requirements (38). Others include those allowed under the federal or state anti-discrimination laws.

Consequently, Roberta’s forced retirement is not discriminatory since it is a job requirement. In addition, Richard cannot claim discrimination since working on that particular job previously could not guarantee him preference over other applicants.

Unit MBS501m2012s2: Human Resource Management Law

Part A

Essential elements of an employment contract

There are three major elements in a contract of employment. They include the obligations of the employee and the employer, as well as the terms of the contract. According to Waarden, employees have the right to reasonable and lawful instructions from their employers (236). Employers, on their part, have the duty to pay employees the wages due to them under the contract, although they are not obliged to provide work (Waarden 239). Terms of the contract can be explicitly incorporated into the collective agreement document. In addition, contract terms can be implied.

The roles of human resource policies and contracts of employment

Employees and employers need to understand what is acceptable and unacceptable in a given organization. Human resource policies provide guidelines to employees by addressing this requirement. On the other hand, an employment contract protects the interests of both the employer and the employee. The interests and obligations of both parties are addressed in the contract.

Regulating the terms and conditions of employment in Australia

According to Harpur et al., Fair Work Act 2009 stipulates ten minimum terms and conditions under the national employment standards (220). The standards apply to all national workplaces. At times, they extend beyond these environments. Terms of enterprise awards and agreements cannot override the national employment standards.

Part B

Do the employers face any potential legal liability under the Occupational Safety and Health Act 1984 (WA)?

Section 19(1) of the Occupational Safety and Health Act 1984 states that “employers should as far as is practicable provide and maintain working environments under which their employees are not exposed to hazards” (Occupational Health and Safety Act 1984 27). The various measures that employers should put in place to protect their employees are expressed in this act.

Mines Labor Hire Personnel Pty Ltd. and MMI Pty Ltd. face legal liabilities for Louise’s accident. In spite of having provided the workers with protective clothing, MMI Pty Ltd. failed to do one thing. The company failed to ensure that Louise had adequate information, instructions, and training to make sure she can work without exposure to hazards. On the other hand, Mines Labor Hire Personnel Pty Ltd. failed to ensure that Louise was assigned jobs that suited her. As such, both companies exposed the employee to hazards due to negligence.

Cameron vs. Starr Law

What are the various actions that Cameron can take against Starr Law?

The Fair Work Act 2009 provides for various acts relating to dismissal, breach of contract, and discrimination. For instance, Clayton UTZ states that employers’ acts must not negatively impact on employees (7). In the case of Cameron, he can sue Starr Law for unlawful termination and discrimination. Starr Law failed to adhere to the probationary period agreed on in the contract before termination.

Cameron can also sue Starr Law on the basis of unfair dismissal and discrimination. During his hiring, Starr Law partners established that he had the right skills. They confirmed this while extending his contract. However, in the process of terminating his contract, Sly insinuated that Cameron does not have the right skill set. In addition, she states that the company probably needs a younger person for the position. Consequently, the unlawful terms used by Sly when terminating Cameron’s contract point to discrimination and unlawful dismissal. The employer can compile these grievances in his suit against Starr Law.

Part C

Master-servant relationship as a description of an association between corporate employer and employee in 2012

The master-servant relationship does not ideally reflect the relationship between employees and employers as of 2012. The Fair Work Act 2009 can accredit with covering almost all aspects of the relationship between these entities. In a master-servant relationship, there are usually no guidelines to the limit of what the servant should do or not. In the employee employer relationship however, all aspects of the engagement are covered through an agreement bargained on good faith.

Constitutional underpinnings of the Fair Work Act 2009 (Cth.) enabling legislation more responsiveness to business need of the 21st century

The Fair Work Act 2009 is a critical component of the Commonwealth legislation that regulates workplaces relations and employment (Fair Work Act 23). The Act basically lays down the terms and conditions regarding employment, which are relevant to the present era. For instance, safety concerns are a major concern in workplaces during the current era. Fair Work Act 2009 provides regulations on occupational safety and health at workplaces. Such needs among others are underpinned in the constitutional individual rights. Consequently, Fair Work Act 2009 constitutional underpinnings enable the business needs of the current era to be met without compromising on either employees or employers.

Balance of power in 2012 favors employees at the expense of employers

The argument that balance of power currently favors employees more than employers can be regarded as right. This is apparent especially in the Fair Work Act 2009, which regulates relationships between employers and employees in workplaces.

The bulk of this act postulates the obligations of the employer to the employee, more than the other way. For instance, in case an employee is exposed to a hazard in their workplace, the liability is more focused on the employer than the employee. This is for instance evident in Occupational Safety and Health Act 1984.

Individual choice is stifled by the Fair Work Act 2009 (Cth.).

The Fair Work Act 2009 (Cth.) has actually stifled individual choice to a very large extent. Majority of the aspects of employment contracts are regulated in one way or another by the Fair Work Act 2009. For instance, the legislation determines the process of collective agreements development, as well as employment terms and conditions. Little flexibility in the relationship between employee and employer is allowed (Lynch 12).

Health and safety regulations are straying more and more into the sphere of employment law

The major purpose of the occupational safety and health regulation act was to provide guidelines to mitigate risks in the workplaces. However, current amendments made on the regulations tend to be oriented towards employment law. For instance, safety and health regulations provide for a tribunal to determine various issues arising in workplaces. In addition, the regulations seek to facilitate the coordination of related administrative laws.

Works Cited

Australian Government, Collective Bargaining Framework. 2009. Web.

Carney, Gerard. “Section 51 (xx): No Power of Incorporation.” Bond Law Review 2.1 (1990): 1-8. Print.

Catanzaritti, Joe, Clayton UTZ: Workplace Relations. 2014. Web.

Clayton UTZ, Termination of Employment: National Guidelines for Managers and Supervisors in Australia. 2013. Web.

Fair Work Act. 2009. Web.

Fair Work Commission, Australia’s National Workplace Tribunal. 2014. Web.

Harpur, Paul, Ben French, and Richard Bales. “Australia’s Fair Work Act and the Transformation of Workplace Disability Discrimination Law.” Wisconsin International Law Journal 30.1 (2012): 190-228. Print.

Lynch, Andrew. “The Fair Work Act and the Referrals Power: Keeping the States in the Game.” Australian Journal of Labor Law 24.2 (2011): 1-23. Print.

Occupational Health and Safety Act 1998. 2008. Web.

Waarden, Natalie. Understanding Employment Law; Concepts and Cases. 3rd ed. 2012. Australia: Butterworths. Print.

Wright, Sarah. “What Have Been The Effects Of The Fair Work Act 2009?.” Ecodate. 26.2 (2012): 5-7. Print.