BUSM4591 Employment Law: Critical Analysis of Legal Principles

This assignment is a discussion board post analyzing various aspects of Australian employment law. It covers topics such as the historical context of minimum wage legislation stemming from Ex parte H.V. McKay, the absence of implied terms of mutual trust in employment contracts as highlighted in Commonwealth Bank of Australia v Barker, and the federal laws governing discrimination in the workplace. The discussion also addresses the harmonization of health and safety regulations, the implications of employer negligence in dismissal cases as seen in West v Holcim (Australia) Pty Ltd, and the debate surrounding the inclusion of domestic violence as a workplace issue. The assignment concludes by arguing against the legislative incorporation of domestic violence into employment contracts, emphasizing the separation of personal and professional ethics within the framework of Australian labor laws. Desklib offers a wide array of resources, including past papers and solved assignments, for students seeking comprehensive study materials.

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

1EMPLOYMENT LAW
Question 1
The judgement in Ex parte H.V. McKay (1907) 2 CAR 1 it was held by the
Commonwealth Court of Conciliation and Arbitration that there should be a statutorily defined
national minimum wage rate. This case formed the basis of employment legislations relating to
the minimum wages and the position was further consolidated in the case of R v Barger [1908]
HCA 43, (1908) 6 CLR 41. These prescriptions of these judgements were codified and
incorporated into the Fair Work Act, 2009 (Stewart 2013). This act now governs minimum
wages in the Australian commonwealth. In Ex parte H.V. McKay (1907) 2 CAR 1 the court held
that unskilled workers were entitled to a wage rate that would allow them to support themselves
and a family with a minimum standard of living. Unskilled workers on the other hand would be
entitled to more remuneration due to the skills they bring to the occupation. The current position
of minimum wages in Australia provides for a uniform rate of minimum wages. The current
minimum wage rate for 2018 is $672.70 per week which is a $15 rise from the previous rate
(Blanpain and Bisom-Rapp 2014). Judging by the standard of living which can be provided by
the current wage rate it would support a comfortable standard of living which exceeds the
prescriptions of the judgment in Ex parte H.V. McKay (Walsh 2015). Thus the position of law
relating to minimum wages has been amended to provide a higher standard of living for the
workforce.
Question 2
The case of Commonwealth Bank of Australia v Barker [2014] HCA 32 held that there
was no implied contractual term relating to mutual trust and confidence in terms of employment

2EMPLOYMENT LAW
contracts (Selwyn and Emir 2014). This case also spoke about remedies available to employees
in case of unfair dismissal. Common law does not provide for any such remedy as it does not
require any reason to be attached to the dismissal of an employee. This was decided in the
judgment in Ridge v Baldwin [1963] UKHL 2 (Rudman 2013). The case thus established that in
case of an employment contract there was no implied term which mandates that the promises and
expectations contained in the Commonwealth bank’s policies were binding on the bank as an
exclusionary term for the same was included in the HR manual which stated that these did not
form a part of the bank’s employee contracts (Sargeant 2016). Thus it established that no remedy
would lie in case of an aggrieved employee if the employment contract was not breached by the
employer.
Question 3
On a federal level the discrimination laws in Australia are primarily governed and
regulated by the following legislations (Fishkin 2013):
1) Age Discrimination Act 2004
2) Disability Discrimination Act 1992
3) Australian Human Rights Commission Act 1986
4) Sex Discrimination Act 1984
5) Racial Discrimination Act 1975.
The Australian Human Rights Commission Act, 1986 provides for the establishment of
the Australian Human Rights Commission. This regulatory authority governs and regulates

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discriminatory behavior especially in the workplace. The other legislations sufficiently define
and regulate discriminatory behavior and have specific provisions that sufficiently cover all
discriminatory circumstances (Freedland et al. 2016). However these acts would not apply in
cases where the disability, gender or age of the individual would prevent them from adequately
discharging their duties as required by the employment contract. In such cases the employer
would have the right to discriminate to the extent where such a discriminatory act pertains
specifically to the ability to discharge the duties associated with a particular form of employment
(Stewart et al. 2016). Thus the acts cover discriminations sufficiently and even provide remedies
to employers in case the discrimination was required by the employment profile. To conclude,
Australian discrimination covers its mandate sufficiently in light of the current scenario.
Question 4
During John Howard’s term as Prime Minister the idea of nationally accepted laws which
are harmonized was coined. It however took decades before such models could effectively be put
in place as legislative mechanisms. In the present scenario Australian health and safety
regulations prescribe 23 Codes of Practice which are incorporated into the framework of
employment laws within the country. Victoria however has refrained from adopting these and
thus has changed from a pioneer of effective safety legislations to a regressive system that does
not adequately cover all requirements of workplace safety. This is due to more political reasons
than legislative failures. However in such a case the implications that such a deviance would
have on industrialization in Victoria are widely detrimental. The 7 Codes of Practice which
Victoria chose of incorporate are based on legislations that have been repealed over a decade
ago. The reliance on regulations prescribed in such dated documents would not adequately cover

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all the requirements of the present global scenario relating to employment law. Thus, in effect
the parties to an employment contract would be subject to laws that have not been periodically
amended to ensure that it meets the requirements of the present time.
Question 5
In the case of West v Holcim (Australia) Pty Ltd [2017] FWC 2346 the court held that
when the employer had been negligent in observing safety requirements prescribed in
legislations an employee cannot be terminated based on damages caused owing to the negligence
of the employer (Stone and Arthurs 2013). In this case a hired laborer was tasked with handling
equipment which he would need adequate training to handle. Additionally, supervision would be
required for the same which was not provided by the employer. While operating the equipment
the employee nearly injured another employee and refrained from sufficiently reporting the
same. The employee was thus dismissed by the employer. However, when the dispute was
brought to court the court found that the acts of the employer were negligent and thus did not
adhere to basic standards of health and safety as prescribed by legislation. Thus, the court held
that the act of dismissing the employee was illegal and unfair and the employer was guilty of
unfair dismissal. Thus the court ordered the employer to reinstate the employee as his dismissal
was not fair.
Question 6
Elizabeth Broderick’s ideology of embodying domestic violence as a workplace problem
is illogical and cannot be accepted as a valid legislative step. Domestic violence and family
violence are issues relating to the household environment that the employee comes from though

5EMPLOYMENT LAW
this may have an effect on the general demeanor of the employee it cannot be considered to be a
part of his work life (Wright and Lansbury 2016). Thus, incorporating legislations relating to
domestic violence into the framework of employment relationships cannot be considered as an
ideal step in furtherance of employer-employee relationships. Thus, Elizabeth Brodericks
recommendation cannot be legislatively brought into force. This thus means that it would not be
viable to give legislative effect to a code which incorporates domestic and family violence as a
part of employment contracts. To conclude, domestic and family backgrounds and professional
ethics cannot be amalgamated into a unified legislation and the same will be detrimental to the
framework of labor laws within the territorial jurisdiction of the Australian Commonwealth.

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Reference List:
Blanpain, R. and Bisom-Rapp, S., 2014. Global Workplace: International and Comparative
Employment Law Cases and Materials. Wolters Kluwer Law & Business.
Fishkin, J., 2013. The Anti-Bottleneck Principle in Employment Discrimination Law. Wash. UL
Rev., 91, p.1429.
Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S.
and Prassl, J. eds., 2016. The contract of employment. Oxford University Press.
Nettelbeck, A., Smandych, R., Knafla, L.A. and Foster, R., 2016. Fragile Settlements:
Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada. UBC
Press.
Rudman, R., 2013. New Zealand Employment Law Guide (2013 edition). CCH New Zealand
Limited.
Sargeant, M., 2016. Age discrimination in employment. Routledge.
Selwyn, N.M. and Emir, A., 2014. Selwyn's law of employment. Oxford University Press, USA.
Stewart, A., 2013. Stewart's guide to employment law (Vol. 3). Sydney: Federation Press.
Stewart, A., Forsyth, A., Irving, M., Johnstone, R. and McCrystal, S., 2016. Creighton and
Stewart's Labour Law. The Federation Press.
Stone, K.V. and Arthurs, H. eds., 2013. Rethinking workplace regulation: Beyond the standard
contract of employment. Russell Sage Foundation.

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Walsh, D.J., 2015. Employment law for human resource practice. Nelson Education.
Wright, C.F. and Lansbury, R., 2016. Employment relations in Australia. Bamber, GJ, Lansbury,
RD, Wailes N & Wright CF, International and Comparative Employment Relations: National
Regulation and Global Changes.