Analysis of Australian Employment Relations and Law

This report delves into the intricacies of Australian employment relations, examining the legal framework that governs the workplace. It begins by outlining three primary sources of Australian law—Constitutional law, Statute law, and Common law—and explains how they interact to regulate employ...Read More

EMPLOYMENT RELATIONS
FOR ORGANISATION
EFFECTIVENESS

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
(1) Describing three sources of Australian law and how they interact for regulating Australian
Employment relations.................................................................................................................1
(2) What are the legal rights do employees have in relation to their engagement in paid
employment?...............................................................................................................................4
(3) What are the legal rights do trade unions have in for representing employees?...................8
CONCLUSION..............................................................................................................................10
REFERENCES..............................................................................................................................12

INTRODUCTION
Employment relations are crucial for maintaining organisation effectiveness in a better
manner. Present report deals with Australian employment relations which is legally binding on
employees, employers, trade unions and related parties in labour law. It will focus on three major
sources of law such as Constitutional law, Common law and Statute law and how these laws
interacts with the Australian employment relations in effective manner. On the other hand, there
are various legal rights of workers in paid employment which they are entitled to, these will be
focused and discussed in detail.
Moreover, trade unions are groups which provide protection to workmen with regards to
exploitation from employers. They possess several rights and act as a representative on behalf of
employees. This helps to get legal rights to employees and they raise voice in case of any
industrial disputes being arrived at the workplace. The legal rights possessed by trade unions on
behalf of employees will also be discussed. Thus, overall employment relations will be discussed
with regards to regulations and standards such as NES, Fair Work Act 2009, Fair Work
Commission and Fair Work Ombudsman.
MAIN BODY
(1) Describing three sources of Australian law and how they interact for regulating Australian
Employment relations
The Australian law have three main sources of law which provides an edge towards
forming better employment relations to employees and get their rights in effective manner. It can
be analysed that employers are under duty to provide equal rights to employees and induce them
to work hard for attaining dual benefits (Boer and et.al.,2017). First one is that employees
become productive and another one is that firm gets desired productivity and profits are
accomplished. There are mainly three sources of laws such as Constitutional law, Statute law and
Common law which are discussed as follows and how they interact for regulating Australian
Employment relations-
Constitutional Law
The constitutional law of Australia provides legislative power of Commonwealth to be
vested in Parliament which includes Queen, Senate and House of Representatives In relation to
this, each of one of the parties have different roles to perform. Queen's role in carrying out
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legislative process lies in her responsibility to grant Royal Assent, power which is exercised by
her on behalf by Governor-General. Without the Royal Assent, no law can be created or
amendments may be made in Australia. Legislative powers of federal Parliament are limited to
those set out under a list of subject matters in Section 51 of the Constitution. Such powers also
include power to legislate on matters 'incidental' to other powers. The High Court of Australia
has jurisdiction for determining disputes whether law remains within range of power and remain
consistent with the Constitution.
The Constitutional law is effectively applied and interact with Australian employment
relations in effective manner. As set out in the Fair Work Act 2009 and related workplace
legislation, there are various elements of workplace relation such as safety needs to be imparted
with minimum terms and conditions of employment (Kaine, 2017). Another element is system of
enterprise-level collective bargaining which is in accordance with bargaining regulations and
rules implied to industrial action. Provision of workplace flexibility arrangements for employees
by employers also prevails. Constitution also empowers right to protect against unfair
employment termination. Protection of freedom of both employees and employers for choosing
third party rights or not.
It can be said that Constitution powers are applied to labour power as governed under
Section 51(35) allowing Commonwealth to make laws with regards to conciliation and
arbitration for preventing purpose and settling down industrial disputes that extends beyond
limits of anyone State. It is an assumption that large amount of industrial disputes are handled at
State level and method of resolving would be imparting collective bargaining (Wright, 2017).
Thus, it can be referred to Constitutional law of Australia that it effectively applies to
employment relations so that natural work may be carried out employees and employers may
effectively comply with Constitutional and industrial relations laws.
Statute Law
The Statute law is drafted in accordance to Australian government. If it agrees that
changes are required, bill is drafted by Parliamentary Counsel. The bill formed is read and debate
is done for either rejection or acceptance or change by properly scrutinising the same. Approved
bill is then received assent and then handed to Governor (State) or Governor-General
(Commonwealth). The Parliament delegates such legislation to locally-embedded councils,
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statutory authorities and government departments. However, all law is directly accountable to
Commonwealth Constitution. Commonwealth of Australia consolidated Acts are in relation to all
laws such as criminal law enacted by Australian Parliament. Moreover, statutes are levied in it
which further make statute law more effective in resolving industrial disputes quite effectually.
In accordance to the Statute law interacting for regulating employment relations in the
Australia, Fair Work Act 2009 is applied which provides rights and duties being applicable to
both employees and employers. Collective bargaining is important aspect under Fair Work Act
2009 regulating terms in which employers hire workers and future treatment of future employees
are governed under it. This mechanism allows workers, employers and representation parties for
expressing their objectives with regards to work in the best manner possible (Rees and Smith,
2017). Moreover, in July 2010, new regulating have been enacted putting stronger emphasis on
enterprise-based bargaining with removal of Australian Workplace Agreements.
The Fair Work Act 2009 under Division 5 regulates employees and employers by
imposing mandatory terms on enterprise agreements. This law effectively interacts with
Australian employment relations as it emphasis that agreements must include flexibility terms. It
means allowing employees to make variations in agreement so formed for meeting individual
needs and preserving their basic rights and protections (Wright, Groutsis and van den Broek,
2017). Such agreements must also include employers' obligation for consulting with employees
about major workplace changes which may affect employees. Furthermore, to allow for
representing those workers for entitled purposes of that consultation. Moreover, agreed pay rate
cannot be below already set by particular modern award (Rothman, Briscoe and Nacamulli,
2017). Hence, it can be concluded that Statute law has major influence on employment relations
and it effectively interacts with it so as to make workplace worthwhile to work for employees.
Common Law
The Common law of the Australia is based on unwritten laws which are provided on
precedents being established by the Courts. The common law takes place and influences on
taking decisions in novel cases where outcome could not be attained based on existing statutes of
law. This means that such law is derived from judicial decisions of Courts and similar tribunals
on major basis when decision cannot be taken by relevant statutes (Moore and Jennings, 2017).
In case, where parties do not agree on law, common law Court looks after past precedented
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decisions of relevant Courts and synthesis on principles of such past cases to apply to current
facts in a better manner. If such similar dispute has been resolved in the past, Court is bound to
abide by reasoning used in past decision.
In relation to common law, case of unfair dismissal can be ascertained under Section 385
of Fair Work Act 2009. Case of Maswan v Escada Textilvertrieb T/A ESCADA [2011] can be
referred to where Mr Maswan was unfairly dismissed (Obee. 2018). This section deals with
person's dismissal in case of genuine redundancy. It was clear from the proceedings that
employer had not followed provisions of General Retail Award 2010 requiring consulting with
employees with regards to redundancies. It was concluded that Mr Maswan's employment was
not referred to case of genuine redundancy in accordance to definition held by Act. The
definition of genuine redundancy is defined under 389 that person's dismissal was case of
genuine redundancy if employer no longer requires job to be carried out by worker because of
changes observed in operations (Pocock and Charlesworth, 2017). Moreover, employer has
complied with obligation in modern award about redundancy.
The conclusion made by Court was that termination of Mr Maswan does not fall under
definition of genuine redundancy because of failure of employer by complying with obligations
to consult over proposed terminations that arises in changes in workplace environment.
Therefore, this failure does not make dismissal of employee unfair as decision made by Escada
was result to take better decision for restructuring operations and merge concerned two positions.
Hence, it can be said that decisions provided by Courts can be applied to regulate Australian
employment relations and make judicial decisions.
(2) What are the legal rights do employees have in relation to their engagement in paid
employment?
There are various legal rights which employees are required to be given when they are
engaged in paid employment. Since, January 2010, Fair Work Act 2009 has been operation
governing majority of Australian workplaces and regulates employment relations existing
between employees and employers. In relation to this, provisions of National Employment
Standards (NES) are contained giving employment entitlements. It covers maximum weekly
hours of work, leave entitlements and public holiday pay, flexible working arrangements,
provision of Fair Work Information Statement and notice regarding termination and redundancy
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pay in effective manner (Australia's National Workplace Relations System. 2018). It provides
safety of employment and in relation to minimum standards of work conditions on full-time,
part-time and casual basis. In case of breach of NES standards, individual employer have to pay
penalty of $12600 and for corporations, penalty may extend up to $63000. Full-time employees
are those who are employed on permanent basis under ongoing contract. The rights of full-time
paid employees are as follows-
 To work maximum of 38 hours per week. While, employer can request an employee to
work for additional hours only if such hours granted are on reasonable ground.
 Right for requesting flexible working arrangement if requirements are met by full-time
employees. Moreover, employee is parent or person responsible for care of children or a
carer have disability are 55 years of age or is experiencing violence from family member.
 Right to be paid annual leave of four weeks per year must be provided by employers to
employers (Vincent and Neale,2017).
 Unpaid parental leave for 12 months and right to request for another additional leaves for
next 12 months. However, worker must have completed 12 months service in
organisation and will have responsibility for caring child.
 The right to be paid personal leave up to 10 days per year, two days unpaid carer's leave
and two days of compassionate leaves employees are entitled to.
 Employees must be provided with written notice when employee is terminated by
respective employer. However, if serious misconduct by employees was done, then it is
not obligated to issue notice.
 In accordance to guideline prescribed by NES, employer is required to give an employee,
amount of notice or pay in lieu of employee working out applicable notice period.
 Moreover, if an employee had completed continuous service of two years and is age of 45
or more, then he is entitled to additional week of notice.
 It is significant to know that if an employee's contract of employment provides
arrangements which are even more beneficial to him than minimum arrangements given
by NES, then such arrangement shall be applied (Nicholson, Pekarek and Gahan, 2017).
 In an event, when an employer makes employee's position redundant, full-time worker is
entitled to redundancy pay under NES. NES provides up to 16 weeks of redundancy pay
largely depends on length of service with employer.
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 The right of redundancy is not paid by small business employer. It becomes important for
checking on employment contract in case of any entitlements with regards to redundancy
pay.
 The employee should be provided with a copy of Fair Work Information Settlement as
soon as he/she commences employment term with employer. The statement contains
information about modern awards, NES, agreement, rights and benefits entitled to
employee, roles of Fair Work Commission and Fair Work Ombudsman.
The employees are also entitled workplace protection and fair conditions of work. It
includes protection from unfair dismissal (Alley,2018). Protection granted from general
workplace protection. This includes protection from an employer if taking adverse action against
an worker by dismissing him/her altering their position of employment to their detriment due to
employee. For instance, having right under workplace law etc. The protection from
discrimination on the basis of race, sex, age, sexual orientation, colour, mental or physical
disability, marital status, pregnancy, political or social region. On the other hand, workplace
protection is provided to employee from employer is found coercing them or initiating undue
influence to change conditions of work knowingly. Bullying and harassment protection is also
granted and anti-bullying provisions are inscribed in Act and worker has power to make
application for stop bullying if any such case is arrived at.
Unfair dismissal has been provided under Fair Work Act 2009. Termination of
employment on unfair basis, worker is eligible for making unfair dismissal claim, if they have
worked out for company or employer for a period of six months. While, if employer is small
business employer, then 12 months of time period is formulated. Moreover, as per the definition,
small business employer is an employer having employed less than 15 workers for performing
out duty. In relation to this, employees who earns less than high income threshold ($142,000
until June 2018 or if employee earns more than the figure, then employment position shall be
covered by modern award or enterprise agreements (Stewart and Stanford, 2017).
There are two bodies which deals with work related claims in the Australia. Fair Work
Commission is national workplace relations tribunal created by the Act and it includes functions
such as to review, make and vary modern awards. Moreover, to fix minimum wage, industrial
dispute resolutions, approval of enterprise-based agreements, dealing with applications arrived
with regards to unfair dismissal, bullying and harassment and general protections identified by
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the body which is provided to workers in effective manner. Employees are given right to file
applications on subject of general protections and unfair dismissals within 21 days from the date,
dismissal took. Late filing is not allowed else Commission find that exceptional circumstances
has caused such delay and explanation needs to be provided to Commission in effective manner.
Applications can be filed by taking various mechanisms such as via email, fax, post,
delivery in Commission's State or delivered to Territory offices or filed electronically by using e
Filing service imparted by the Commission. On the other hand, another body engaged in
providing workplace rights is Fair Work Ombudsman. It is a statutory agency created under Fair
Work Act 2009 entitled to impart information and advice with regards to workplace rights,
obligation and entitlements. The agency is entitled to promote harmonious and productive
employment and workplace relations (Sutherland and Riley, 2017). It ensures that both
employees and employers are complying with Australian workplace laws. Moreover, to
investigate upon complaints or contraventions found in awards and agreements. Next to build
competent and strong relationship with industry, stakeholders and unions forming part of
employment relations system in the Australia.
The employees are entitled to be paid the right pay rate whether full-time, part-time or
casual work. Moreover, minimum wages are required to be rightly paid to employees and no
discrimination shall be made to them. On the other hand, it is required that company should
provide employees with equal rights and minimum 38 hours per week is entitled and not more
than that work should be forced them to work. In relation to this, coercion or undue influence
made on employees must not be made and if any case is observed, then, application may be filed
in Commission and as a result, strict action will be taken by it and employee's would be
benefited in a better manner.
Fair Work Act 2009 provides that employees are entitled to get all benefits and rights
being inscribed under the Act. In addition to this, if written notice is not provided to employee's
and is terminated, complaint can be filed against it (Redmond, Walker and Hutchinson, 2017).
Thus, it can be analysed that there are plenty of legal rights being available to employees which
provides them legal protection from getting being exploited at the workplace and if dispute
occurs between employers and employees, Commission could be approached for getting out
reason behind the same and resolve issues quite effectually.
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(3) What are the legal rights do trade unions have in for representing employees?
Trade unions are important groups in the Australia which speaks in for employees and
negotiates with the employers for taking and offering legal rights for employees. This means that
employers are bound to take into account, all rights of employees as trade unions represent
workers and fight for their rights at the workplace. The trade unions represent such as ACTU
(Australian Council of Trade Unions) and Australian Workers' Union are some of the oldest
trade unions representing workers for claiming their rights in the event of any disputes held
between employees and employers in the best manner possible (Dundon, Cullinane and
Wilkinson, 2017). This has provided workers with legal rights to avail and be productive towards
work without any industrial disputes with employers.
The role of unions in representing employees are quite useful for them as they are able to
attain and claim their rights quite effectively. Trade union is an organisation of employees who
together have joined for accomplishing common goals with ease. In addition to this, goals
include to seek for higher pay and better working conditions, to protect integrity of trade and
fighting for job security in a better manner. Union's main role is to bargain with employer on
behalf of union member and then negotiates or get engaged in collective bargaining for reaching
enterprise agreements with employers. The collective bargaining includes negotiating with
regards to wages and salaries, work practices, recruitment, benefits to employees, workplace
security and safety and dispute procedures (Findlay and Thompson, 2017). Moreover, enterprise
agreements negotiated by trade union are legally binding on workers and employers also
including non-members of union.
Key roles of trade unions include for effectively resolving workplace issues by raising or
being a voice for workers and claim their rights. Moreover, for acting as a bargaining
representative particularly during negotiations. The role of trade union in representing workers
contains to work with management so as to resolve workplace issues, being an advocate to fight
for workers. Moreover, to make ensure that employers are meeting obligations as governed by
Fair Work Act 2009. They also look for into suspended breaches with regards to workplace laws,
discrimination laws and workplace safety laws. On the other hand, trade union represent
employees by bargaining. It is a process in which both workers and employers negotiate with the
terms and conditions of enterprise agreements (Regalia and Regini, 2018). Bargaining
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representative can be brought in by parties, however, usually union official is appointed as
representative on behalf of employees.
It is required by law that bargaining representatives and concerned parties must act in
good faith during whole of the process (Baird, Ford and Hill, 2017). The rationale behind such
bargaining for employees should also be disclosed by them as what benefits will employee get
on proposed enterprise agreement. In simple words, if unions and employers are bargaining for
agreement, and any one of will get financial benefit from the process and they have to make sure
that employees for whom bargaining process is initiated are informed about the same. In relation
to this, for disclosing benefit to employee, disclosure document have to be created by both
parties in which information should be provided for as which term in agreement being proposed
is beneficial, type of benefit and how much and disclosing name of each person who will attain
benefit from the same.
Union once created disclosure document has to hand over it to employer, who will has to
provide it to employees (The role of unions. 2019). While, if employer who creates this
document has to give it to their employees. On the other hand, Workplace Relations
(Registration and Accountability of Organisations) Act 2002 governs for ensuring that these
trade union groups are 'representative of and are directly accountable to their concerned
members, 'to encourage members for participating in affairs of organisations to which they
belong to (according to Section 5). Moreover, Trade Unions Act 1958 also regulates and protects
the right of trade unions so that they may effectively represent workmen in the best manner
possible. This leads to accomplishment of several legal rights for which employees are entitled
to.
According to objects contained in Part XA of Workplace Relations Act 1996, Freedom of
Association, is to make sure that employers, workmen and independent contractors are free to
join industrial association as per their choice or not as decisions rests with them. The conduct
forbids including permitting or threatening for dismissing or injuring employees (Barry and You,
2017). Moreover, to alter position of employee by employer, refusing to employ another person
or discriminating them on any other related matter falling under the section of the Act. It can be
analysed that according to Section 298 M prohibits employer from influencing and inducing an
employee to stop being an officer or member of trade union. While, Sections 261 and 264 are
9

dedicated to right of member to join union and also right to resign from such union are also
governed in it. The eligibility rules of concerned trade unions must be adopted and person
intending to participate must comply with rules thereof.
Union when once registered under federal system acquires privileges for purpose of
bargaining, taking industrial action and getting appearance before Commission. Thus, it can be
said that employees can be entered in trade unions following rules and norms of concerned union
(Ressia, Strachan and Bailey, 2017). Trade unions are party to award in their own right and must
play role in enforcement of award provisions. Terms of particular award is legally binding on
employers, workmen and unions. The award contains matters to concern for employees such as
pay rate, leave, superannuation, employees' classifications and hours of work. Workers'
representation is characterised and should be represented by trade union delegates. Employers
are legally bound to consult with unions when contemplating with regards to certain
redundancies (National Labour Law Profile: Australia. 2019). For example, if employer makes
decision to terminate 15 or more workmen for reasons such as economic downturn, technological
and similar nature, then consultation is mandatory with trade unions.
Moreover, as a representative of employees, another legal right of trade union is on the
boards of government-based regulated superannuation funds. Both employers and trade unions
have equal quantum of votes. On the other hand, strikes and lock-outs are also part of industrial
action taken against employer on behalf of workmen (Clibborn and Wright, 2018). Thus, from
all the legal rights possessed by trade unions in the Australia for effectively representing
employees are bound on employers who has to make negotiations, when discrimination is done
to workmen. The financial benefit to be gain by trade unions for employees must be stated in
disclosure document. This provides legal protection to workers and as a result, trade unions are
crucial on behalf of employees to claim for their rights inscribed by law.
CONCLUSION
Hereby it can be concluded that Australian labour law governs, regulates all the parties
concerned at the workplace. The employment relations provide clarity as to how relationship
should be managed between employers and workmen in the organisation. With regards to any
dispute, employees can avail their rights by complaining against employer in the Commission ot
get relief in any of concerned disputes. Furthermore, Fair Work Act 2009, provides certain rules
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and regulations with regards to fair work practices and concern to protect employees on
misconduct done by employer. This helps to attain protection and accomplish legal rights
provided by the law.
Various sources of law in the Australia helps to regulate and interact with Australian
employment relations in effective manner. In relation to this, Constitutional law, Statute law and
Common law are three main sources which regulates industrial and employment relations in the
nation. While, there are various legal rights being available to employees by the Fair Work Act
2009, Fair Work Commission and Fair Work Ombudsman which protects them from exploitation
by employers. Furthermore, trade unions also protects and act as a representative for workmen as
per the law.
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REFERENCES
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