Australian Employment Law: Equal Opportunity Act & Discrimination

This report provides an analysis of key aspects of Australian Employment Law. It examines the relevance of Justice Higgins' Sunshine Harvester decision on modern awards and minimum wage, discussing whether Australian labor law has significantly changed since then. The report further analyzes t...Read More

Australian Employment Law
Running Head: Australian Employment Law
0
6 / 2 0 / 2 0 1 8
Student’s Name

Australian Employment Law 1
Contents
Question 1........................................................................................................................................2
Question 2........................................................................................................................................2
Question 3........................................................................................................................................3
References........................................................................................................................................4

Australian Employment Law 2
Question 1
The given statement under Question 1 is correct. As it was held in the case of Ex parte H.V.
McKay (1907) 2 CAR 1, that an unskilled laborer deserved a living wage of 42 shillings per week
or 7 shillings a day (Museums Victoria Collections, 2018). This case is years old but yet the provision
under labour law of Australia are same. While giving the decision of the aforesaid case, Justice Higgins
stated that wages for work must be fair and reasonable. What is fair and reasonable is depends that the
person who is getting such wages is able to fulfill his basic requirements or not. 7 or 42 Shillings are a
number but the value of the same depends on the inflation rate of an economy (Pettinger, 2017). It is to
state that purchasing power of a person also depends on the value of currency and further such value of
currency again depends on inflation rate of an economy as earlier mentioned.
Under Australian Employment Law, Minimum wages is not a part of national Employment Scheme and
the same is comes under the purview of Awards. Fair Work Commission is the Authority which reviews
the annual wages and making the policies according to them. This is the authority which decides whether
the level of minimum wages should be increase or not (Fair work commission, 2018). In this context it
may state that in respect to minimum wages, after the decision of sunshine harvester case, Australian
labour law has not changed as much as required.
Question 2
In the case Commonwealth Bank of Australia v Barker [2014] HCA 32 it was held that whether
this is somewhere in the contract of employment it is mentioned or not but there is always an
implied term of mutual trust and confidence do exist in employment contracts. The decision
given in this case brought a positive aspect for employees as in this case Mr. Barker who was
former employee of Commonwealth Bank of Australia received an award of $317,000 in

Australian Employment Law 3
exchange to termination of employment without the proper justification (Nickels and Simth,
2014).
This case has it is great significance as it has developed the concept of implied mutual trust in
employment contracts. This is also to mention that the said implied mutual trust and confidence
is not only required on the part of employer but it is vice versa (Pittard and Naughton, 2014). It
means as similar to employer, every employee who comes under the purview of Australia
Employment Law is also responsible towards his employer. Further this case affects the
relationship between employer and employee not only during the term of employment but also
afterwards.
Further, this case has also significant place because it provides safe guard to employer and
employee in those cases where the law is silent or proper remedy is not mentioned under
Australian Labour and Employment Law. It may state that provision comes out from the decision
of this case has is very important in order to protect the interest of employer as well as employee
where no specific contract is signed in between them.
Question 3
Under the Equal Opportunity Law subject, there some anti-discrimination laws are mentioned.
These laws promote the area of equal opportunity at workplace and demotivate the practice of
decimation on the basis of mentioned attributes. Here mentioned attributes referred to a list
which has provided under Under Section 6 of the Equal Opportunity Act, 2010 (Vic) n order
prevent unfair practices of discrimination. Under the Commonwealth Legislation, there are

Australian Employment Law 4
several laws has made for this subject such as Racial Discrimination Act 1975, Sex
Discrimination Act 1984, Fair Work Act 2009 and many more.
Discrimination at workplace can be of direct or of indirect nature. Further basis of the same can
be anything such as cast, gender, marital status of an employee or so on. Here under Australian
employment law (Equal Opportunity Act, 2010), a list of attributes has provided by authority.
These attributes includes a vast range of factors such as industrial activity, disability, age,
breastfeeding and so on (Khaitan, 2015). No employer can do the decimation among his/her
employees on the basis of provided attributes. But the list provided is not comprehensive in
nature as the same does not include every factor on the basis of which discrimination van be
done (austlii, 2018).
Many of the times it has noted that employer do the discrimination on his/her personal choices
but this factor is not a part of provided list of attributes. In addition to this this list does also not
includes the factors such as psychology or sociology. So it may state that the protected attributes
are not suitably comprehensive.
References
Austlii. (2018) Equal Opportunity Act 2010 [online] Available from:
http://classic.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/ [Accessed on 20/06/18]
Commonwealth Bank of Australia v Barker [2014] HCA 32
Equal Opportunity Act, 2010 (Vic)

Australian Employment Law 5
Ex parte H.V. McKay (1907) 2 CAR 1
Fair work commission. (2018) Annual Wage reviews. [online] Available from:
https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/annual-wage-
reviews [Accessed on 20/06/18]
Khaitan, T. (2015) A Theory of Discrimination Law. UK: OUP Oxford
Museums Victoria Collections. (2018) The Harvester Judgement, 1907. [online] Available from:
https://collections.museumvictoria.com.au/articles/15931 [Accessed on 20/06/18]
Nickels, L. and Simth, R. (2014) Australia: High Court: No Implied Term of Mutual Trust and
Confidence = Confidence for employers? [online] Available from:
http://www.mondaq.com/australia/x/340392/Contract+of+Employment/High+Court+No+Implie
d+Term+of+Mutual+Trust+and+Confidence+Confidence+for+employers [Accessed on
20/06/18]
Pettinger, T. (2017) Inflation and Exchange Rates. [online] Available from:
https://www.economicshelp.org/blog/1605/economics/higher-inflation-and-exchange-rates/
[Accessed on 20/06/18]
Pittard, M., J. and Naughton, R. (2014) Australian Labour and Employment Law. Chatswood,
NSW, Australia LexisNexis Butterworths