Employment Law: Understanding the Fair Work Act, 2009

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.

2EMPLOYMENT LAW
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

3EMPLOYMENT LAW
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.