Employment Law: Understanding the Fair Work Act, 2009

This article discusses the Fair Work Act, 2009 and its implications on employment law. It covers topics such as legislative powers, National System Employees, employment relationships, restrictions on employers, and employment policies. The article also provides case studies and links to relevant legislation. Course code, course name, and college/university are not mentioned.

Running head: EMPLOYMENT LAW
EMPLOYMENT LAW
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAW
Chapter 2
Problem 1
1. The commonwealth parliament relies on two kinds of powers to legislate- legislative
powers and exclusive powers. The Commonwealth parliament’s powers to legislate are
defined under Section 51 of the Constitution of Australia which lays down 39 heads of
power which it can legislate on. Section 51 (xx) gives it the power to legislate on matters
related to corporations and Section 51 (xxxv) gives it the power to legislate on matters
relating to conciliation of industrial disputes interstate1. These are the powers it employs
to legislate on employment matter.
2. Legislative powers of the Commonwealth parliament are wider in scope as they have to
powers to legislate on 39 different heads of powers as well as on matters incidental to the
powers.
3. The Commonwealth uses its legislative powers under Section 51 (xxiiiA) of the
Constitution to legislate on matters related to parental leave.
4. The Commonwealth uses its legislative powers under Section 51 of the Constitution to
enact Part 6-4B of the Fair Work Act.
Problem 2
Section 13 of the Fair Work Act, 2009 defines the term National System Employee2. As
per the definition and the given scenarios only Detective John Brown would be a National
1 Commonwealth of Australia Constitution Act.
2 Fair Work Act, 2009.

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System Employee as per the extended definition in Section 30C. As he is a law enforcement
officer and thus Section 30C (1) (b) would apply3.
Problem 3
The Adamson’s case or R v Federal Court of Australia; Ex parte W.A. National
Football League4 laid down that the test to determine whether an entity is a trading or financial
corporation, revenue raising activities must be established. In the given set of scenarios the
International Education arm of CQU University would be the only trading or financial
corporation. The other entities work on donations which cannot be considered revenue raising
activities whereas the International Education arm of CQU University works for fee paying
international students which may be considered a revenue raising activity.
Problem 4
From the definition of a National System Employee (who this act applies to) as per
Section 13 of the Fair Work Act it may be inferred that from the given set of circumstances the
Jarkata based cameraman from Australia who visits Australia once a year would not be covered
by the Fair Work Act. This is because as defined by Section 13 vocational placement would not
be covered by the provisions of the act. In the other scenarios the Australian woman acting as the
resident journalist would be covered by virtue of Section 13 of the act and the maritime
employee would be covered by Section 14 (d) (ii)5.
3 Fair Work Act, 2009
4 [1979] 143 CLR 190
5 Fair Work Act, 2009

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Chapter 3
Problem 1
Section 11 of the act lays down the definition for employee and employer and it can be
stated that for the purposes of the act the ordinary meanings of employer and employee apply.
Section 15 reiterates this and excludes vocational placements from the same6. From the given set
of circumstances it can be inferred that Big Al’s Computer repairs was an independent contractor
as it was not paid a salary but a consideration and it was not employed on a regular basis but as a
contractor to maintain the computer systems at CQU. Thus, they would not be considered
employees and CQU cannot be sued for negligence on part of Big Al’s Computer Repairs.
Problem 2
1. The issue with not being able to determine if they are employers of contractors is the
ability to attribute liability in case of such any disputes arising from the same.
2. The Court’s determination of an employment relationship depends on the applicability of
the “muti-factor test”. The test requires determination of the following factors and the
Court balances these in the following ways7:
Relationship- There must be such a relationship where the employee owes a certain
degree of loyalty to the employer.
Mutual obligations- There must be presence of more than just a promise for work done
against wages but also promises that incorporate certainty of future performances.
6 Fair Work Act, 2009
7 Carter, Min Z., et al. "Transformational leadership, relationship quality, and employee performance during
continuous incremental organizational change." Journal of Organizational Behavior 34.7 (2013): 942-958.

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Degree of control- There must be a certain degree of control of the employer over the
performance of the work relating to how it is undertaken.
Right of subcontracts and delegations- There must be no right of subcontracting or
delegating the work. If there is such a right the person would not be considered an
employee.
Representation of the employers business- Representation of the employer through
uniforms or badges etc would constitute an employment relationship.
Problem 3
In this situation Wayne is an employee at present and wishes to become an independent
contractor. In doing so he would have complete control over the activities undertaken by him and
would not be engaged as an employee but in doing so he would also lose his rights under the Fair
Work Act, 20098. Thus his tax liability would significantly also be reduced as only his personal
income through his contracts would be considered.
Problem 4
1. In this issue the gardeners were asked to resign and they were subsequently hired
as independent contractors however it can be seen that the employer had
significant control over the working as they dictated the responsibilities to be
undertaken by the gardeners (as can be seen from the fact that they were
instructed to clean the pool as well) this meets the degree of control requirement
8 Macdonald, Fiona, and Sara Charlesworth. "Equal pay under the Fair Work Act 2009 (Cth): mainstreamed or
marginalised." UNSWLJ 36 (2013): 563.

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as defined in the multi-factor test and thus the cancellation of the contracts would
be considered unfair dismissal.
2. The dismissed gardeners were employees at the time of dismissal and this would
constitute unfair dismissal as per the definition in Section 385 of the act. They
would have remedies available in the form of reinstatement (following the
provisions of Section 391) or compensation (following Section 392 of the act)9.
Chapter 4
Problem 1
1. From the given set of circumstances it may be inferred that though she has been working
in the organization for a period of 2 years she would not qualify as a permanent
employee. This is due to the fact that she works irregular hours and had no guarantee of
the hours of work and she is not given paid sick or annual leaves.
2. As per the provisions of Section 284 which defines the minimum wages objective she is
being paid the adequate wage10.
3. By virtue of her appointment as a casual employee she cannot claim for paid annual
leave.
4. By virtue of her appointment as a casual employee she cannot claim for paid sick leave.
9 Fair Work Act, 2009.
10 Fair Work Act, 2009

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Problem 2
In this situation, if Wayne does not maintain his promise of keeping Phil’s working
conditions “unchanged” then Phil would be considered an independent contractor and not an
employee. The effect of this would be that Phil would not be covered by the Fair Work Act, 2009
and thus would lose the protections offered to him by virtue of the act. If his working conditions
remain unchanged then Wayne would have significant control over Phil’s work and thus would
be considered an employer. In such a case Phil would not be an independent contractor but an
employee.
Problem 3
The terms and conditions of employment as put forward by the employer is binding under
the Fair Work Act, 2009 and thus these arrangements are permitted under Australian
employment law.
Problem 4
Section 351 of the act lays down a prohibition on discrimination by employer. However,
in the current scenario the volunteers do not work for payment and thus an employment
relationship cannot be inferred from them. Thus the volunteers would not have any recourse if
they are replaced on discriminatory grounds11.
In Pat’s role as an administrative employee however she cannot be asked to donate her
work hours as she acts in the capacity of an employee and thus her right to receive payment for
all hours of work is guaranteed under the Fair Work Act, 2009.
11 Fair Work Act, 2009

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Chapter 5
Problem 1
Restrictions on employers from hiring anyone12-
 Post-employment restraints imposed by previous employers.
 Ensuring that the employee holds a visa which allows it to take on work or the person is a
citizen of Australia.
 Ensuring that all requisites of the Fair Work Act, 2009 are met.
 Ensuring that the employee meets the minimum adequate qualifications for the job.
Problem 2
1. The link to the Act which regulates child employment in Queensland is:
https://www.legislation.qld.gov.au/view/pdf/2010-10-14/act-2006-002
2. The restrictions on child employment are defined under Section 8A and 9 of the Act.
Some of these are13:
 Prohibition on use of nudity or provocative clothing. As per Section 8A.
http://classic.austlii.edu.au/au/legis/qld/consol_act/cea2006180/s8a.html
 An employer may not instruct or require the child to work under circumstances
that the act provides or regulation states the child may not work. As per Section 9
(2). http://classic.austlii.edu.au/au/legis/qld/consol_act/cea2006180/s9.html
12 Cai, Lixin. "The dynamics of low pay employment in Australia." International Journal of Manpower 36.7 (2015):
1095-1123.
13 Child Employment Act, 2006.

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 The child must not be instructed or required to work without the supervision of an
Adult. As per Section 9 (4).
http://classic.austlii.edu.au/au/legis/qld/consol_act/cea2006180/s9.html
Problem 3
Under the given set of circumstances the university student could be hired under by the
solicitor despite it not being required under her university credits. Here since the hiring is on an
unpaid basis the Fair Work Act, 2009 would not apply as the person is not an employee as
defined under the act.
Problem 4
1. Section 351 of the Act imposes a ban on discrimination. However, as laid down by 351
(2) (B) if the position in question demands such discrimination the prohibition would not
apply14. Thus John’s advertisement would not attract the prohibition as the job profile in
question warrants such discrimination.
2. The employee referral given in bad faith cannot be remedied as the act does not provide
for such a situation.
14 Fair Work Act, 2009.

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Chapter 6
Problem 1
 Apart from the employment contract the legislations relating to employment like the Fair
Work Act, 2009 must be considered when interpreting the terms of the contract. This is
because this act regulates the terms of employment within Australia.
 Pre-contractual promises would form a part of the employment contract if such promises
were material to the acceptance of the offer by the employee.
 If the contract states that the written document is the “entire agreement” then pre-
contractual promises would not be material to the terms of the contract.
 Interpretation should be approached subjectively as any relief or remedy given would
depend on the facts and circumstances of the present case.
Problem 2
 If the contract of employment contained a demotion clause in case of such disputes then
such a demotion would not be unfair.
 A complete perusal of the employment contract would be required to conclusively
determine if the demotion was unjust.
 If the demotion was in fact unjust then Josh can apply to the court for a civil remedy
which may be reinstatement or compensation.
 The fact that Josh accepted the demotion and continued working for 2 months without
any looking for a remedy would show his acceptance for the new terms and hence would
form a binding employment contract.

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Problem 3
Topic that are common for formulating employment policies are15:
 Leave structure- Since employees have many different kinds of leaves as a right
guaranteed under the act.
 Remuneration- As it forms the basis of the employment contract and must meet
prescribed standards.
 Bargaining agents- As they represent to workforce before the employers.
 Hours of work- since this is also protected by legislation and needs to be considered.
Link to the NSW health agency’s employment policy
http://www.health.nsw.gov.au/careers/policies/Pages/default.aspx
To ensure compliance with the employment policies an employer can execute a separate
agreement with the employee which guarantees adherence to the policies.
The case Goldman Sachs JB Were Services Pty Ltd v Nikolich16 is important in the
employment context as it laid down that mandating post work choices complacency is a breach
of the terms of employment and employment policies must protect this right.
Problem 4
If the new written contract does not contain a clause that states that it is the entire
agreement then the previous terms of the contract would prevail. In case such a clause is
incorporated then the previous terms would not exist once the new contract is signed.
15 McLachlan, Rosalie. "Deep and Persistent Disadvantage in Australia-Productivity Commission Staff Working
Paper." (2013).
16 [2007] FCAFC 120.

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Awards are incorporated into the terms of employment by virtue of the provisions of the
Fair Work Act, 2009 thus it would form a part of the employment contract.

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Bibliography
Statues
Commonwealth of Australia Constitution Act.
Fair Work Act, 2009.
Child Employment Act, 2006.
Case law
R v Federal Court of Australia; Ex parte W.A. National Football League [1979] 143 CLR 190
Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120
Articles
McLachlan, Rosalie. "Deep and Persistent Disadvantage in Australia-Productivity Commission
Staff Working Paper." (2013).
Cai, Lixin. "The dynamics of low pay employment in Australia." International Journal of
Manpower 36.7 (2015): 1095-1123.
Macdonald, Fiona, and Sara Charlesworth. "Equal pay under the Fair Work Act 2009 (Cth):
mainstreamed or marginalised." UNSWLJ 36 (2013): 563.
Carter, Min Z., et al. "Transformational leadership, relationship quality, and employee
performance during continuous incremental organizational change." Journal of Organizational
Behavior 34.7 (2013): 942-958.