BUSM4591 Employment Law: Analysis of Legislation & Case Studies

This report provides a comprehensive analysis of key aspects of Australian employment law. It begins by examining the historical context of minimum wage legislation, referencing landmark cases like Ex parte H.V. McKay (1907) and R v Barger [1908]. The report then delves into the nature of employment contracts, differentiating between express and implied terms, and referencing Commonwealth Bank of Australia v Barker [2014]. A significant portion of the report is dedicated to discrimination laws, outlining key legislations such as the Age Discrimination Act 2004 and the Racial Discrimination Act 1975, and discussing the role of the Australian Human Rights Commission. The report also addresses the challenges of harmonizing workplace health and safety regulations across different states, using Victoria as an example. Finally, the report references West v Holcim (Australia) Pty Ltd [2017] FWC 2346 to discuss safety requirements. Desklib offers a wealth of resources for students, including past papers and solved assignments related to employment law.

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

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Question 1
Employment laws within a jurisdiction define the relationship between employer and
employee and regulate the employment relationship in case of disputes. This also means that
ideally employment laws define the rights of the employees against the employers and the
minimum standards of employment conditions and remuneration which the employer must
provide. In Australia various state legislations define employment relationships and form the
employment laws for that state (Wright and Lansbury 2016). The idea of having a set standard of
minimum wages prescribed by statutory provisions was widely researched and taken into
consideration. In this regard, it is worthwhile to refer here that, such legislation can only be
enacted through proper sanction of law and judicial interpretations which emphasize the need for
such legislative actions. In light of the same the case of Ex parte H.V. McKay (1907) 2 CAR 1
also known as the sunshine harvester case made some notable observations which later led to the
enactment of employment legislations which would pave the way for minimum employment
standards as far as the remuneration aspect is concerned (Walsh 2015). To be precise this leading
case declared that there needs to be a statutorily defined minimum wage limit and the same
would have to be prescribed by the legislature (Stone and Arthurs 2013). The judgment was
delivered by the Commonwealth Court of Conciliation and Arbitration and it was the primary
basis for the enactment of employment legislations that made such prescriptions. This position
was further reiterated in R v Barger [1908] HCA 43 and it was declared that such regulatory
prescriptions need to be made when dealing with minimum standards of remuneration to be
received by the workforce (Stewart et al. 2016). The ancillary observations made in the case Ex
parte H.V. McKay (1907) 2 CAR 1 were that for an unskilled laborer the remuneration should be

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such that they would be able to support their family and themselves with a minimum standard of
living. For skilled labor on the other hand the Commonwealth Court of Conciliation and
Arbitration declared that their remuneration should be higher than unskilled labour and the
remuneration would be proportionate to the skills that these labourers would bring in with them.
In the prevailing scenario minimum wage prescriptions, at the statutory level, provides for
uniformity and adopts an equitable approach to minimum wage provisions. In light of the same,
in the present scenario minimum wage prescriptions in Australia have increased to a $672.70 per
week and thus is an additional $15 higher than the previous minimum wage rate. In such a case
the minimum wage provided to the workforce largely exceeds the prescriptions of the judgment
in Ex parte H.V. McKay (1907) 2 CAR 1 as the prevailing rate of wages ensures that the
worker’s standard of living is beyond the bare minimum and provides for a better life (Stewart
2013). Thus the amendments in employment law in relation to the minimum rate of remuneration
have been devised to provide for a better standard of living than provided for by the original
inception of the concept.
Question 2
Contracts are agreements where two or more parties agree to act or refrain from acting in
a particular situation (as defined by the terms of the agreement) in exchange for a specific
consideration. All forms of employment relationships are governed by contracts and these are
known as employment contracts. These contracts define the nature, duration and remuneration of
the workers and also in turn set out the employers main obligations towards the employees.
There are various forms of contractual terms which can be broadly classified into two categories-
Implied terms and Express terms. Express terms are those terms that are specifically incorporated

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into the contract (Selwyn and Emir 2014). On the other hand, implied terms are those which are
not specifically incorporated into the terms of the contract but can be inferred as a part of the
contract due to the nature of the contract, the terms or any statutory provisions that govern the
contract. In the same way it may be inferred that an implied term would depend on the way the
terms or the nature of the contract is interpreted by an adjudicating authority. In the leading
judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 it was held by the
court that there is no implied term in employment contracts relating to mutual trust and
confidence. In the same way it would be useful to note other observations made in the case
which stated that there should be remedies available to employees for unfair dismissal from their
term of employment. Common law principles, which are developed through judicial
pronouncements in commonwealth countries, are applicable within the jurisdiction of the
Australian commonwealth (Sargeant 2016). Under common law principles there are no remedies
available to employees in case of unfair dismissal and the employer would not even be required
to provide a reason for such a dismissal. Thus, it was important to judicially incorporate
remedies for such a situation in order to adequately protect the rights of the employees. The
leading case of Ridge v Baldwin [1963] UKHL 2 reiterated this common law position. The
judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 set out and clarified
that in case of the HR policies of the bank being amended the same would not be a breach of the
employment contract in terms of an implied term of mutual trust and confidence (Rudman 2013).
It thus laid down that an aggrieved employee would only be able to initiate an action against
their employers for a specific breach of the employment contract. In case there are other
omissions made by the employer which have detrimental effects on the employees but do not
specifically breach the employment contract then the same would not amount to an act which the

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employee can initiate an action against (Nettelbeck et al. 2016). Thus a breach of the
employment contract is of paramount importance in cases of an action against an employer by an
employee.
Question 3
Discrimination laws define and regulate differential treatment in various spheres. It is
important to note that these do not only pertain to the employment relationship but are
quintessentially required in the field of employment law. In case of such laws a complete
prohibition on the idea of differential treatment especially relating to employment opportunities.
This is mainly because the abuse of power by an employer would negate the concept of equal
employment opportunities in such a sphere. The employment laws that primarily define and
regulate discrimination in the Australian commonwealth are the following legislations
(Freedland et al. 2016):
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 primary regulatory authority which uses the acts as the governing body for
discriminatory laws in the jurisdiction of the Australian Commonwealth is the Australian Human
Rights Commission which was given statutory force and established by virtue of the enactment

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of the Australian Human Rights Commission Act, 1986. This body primarily acts as the
interpreting authority in case of disputes that allege discriminatory behavior. In case of
differential treatment in the same in the workplace or for discriminatory conduct in terms of
providing employment opportunities the same would be the presiding body to determine the
dispute at the first instance. This thus acts as a court of first instance in these circumstances. The
above stated regulations thus employ the provisional mechanisms prescribed within them to
ensure that there is not differential treatment on the basis of the specific prohibitions in these
acts. These acts thus protect employees from various kinds of discrimination and thus use the
same to ensure employers meet their obligations as far as the employment relationship is
concerned. However there are specific limitations to the prohibitions stated in these legislations
in order to ensure that any employer is not deprived of recruiting better suited employees for the
job profile purely due to prohibition on differential treatment. This thus means that if the job
profile that the employment opportunity pertains to specifically required the presence and/or
absence of a particular attribute then the same would exclude the employer from being legally
pursued for discrimination. This is because the attribute that the discrimination was based on is
of material importance to the employee’s ability to perform the duties required of that particular
job profile. Resultantly, the job profile would need these attributes to be present or absent to
make a suitable recruitment. In such a case discriminatory laws would not play a part in the same
and hence it would not be sufficient cause of action to initiate legal proceedings against such an
employer in such a case (Fishkin 2013). Thus the employment laws in force in Australia
successfully account for the challenges in the field and sufficiently cover all the forms of
discrimination that needs to be curbed. Additionally it also provides limitations on these

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mandates to ensure that employer are not unfairly disadvantaged in anyway. Thus the
discriminatory laws in Australia sufficiently cover their mandate.
Question 4
A uniform code which sufficiently handles the mandate of a particular aspect of law is of utmost
importance. Uniformity furthers equality and the same is the prime objective of having
employment laws in a particular jurisdiction. The ultimate aim of employment laws is to ensure
that the laws of the state do not disadvantage any party to the employment contract. In the same
way the contract of employment must not infringe the basic human rights of a particular
individual who is a part of the employment contract. The Australian concept of having
harmonized uniform legal codes was first coined in John Howard’s term as Prime Minister.
However it would be decades before such harmonized codes of practice could be implemented
on a national level. In this way it would completely change the whole way in which the parties
conduct employment relationships and more uniform and fair rights would be available to the
employees. Australian health and safety regulations formulated a total of 23 codes of safety
regulations which would be incorporated into the framework of employment laws at a national
level. Victoria however opted to incorporate only 7 of the same into their legal framework
(Blanpain and Bisom-Rapp 2014). These codes which they did choose to adopt were decades old
and repealed in various jurisdictions. Moreover, with the idea of uniform codes and practices
would not be successful unless the idea was incorporated into the legal framework of all the
various states within the jurisdiction. Moreover health and safety codes are required to ensure
that employees in a particular jurisdiction provide for work environments that are safe for people
to work. Thus, in effect the workforce in Victoria would be governed by laws that are dated and

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not amended to fully account for the present global scenario. Thus in order to do the same the
changes in global work environments would have to be considered and the conditions available
to employees in Victoria would be deemed ineffective. The ineffective implementation of
employment laws within a particular jurisdiction could be a major failure to observe human
rights and the same could lead to more consequential legal challenges. Thus to account for the
same the laws in Victoria would have to designed in a way that incorporates all the various
prescriptions of the 23 codes of practice. Only through such an incorporation can the country as a
whole account for a uniform code of practice and provide a comprehensive basis for the
implementation of the same.
Question 5
In West v Holcim (Australia) Pty Ltd [2017] FWC 2346, it was held by the court that
there are some safety requirements that needs to be taken into consideration which has to be
prescribed. These prescriptions of safety need to be made in accordance with the needs of the
legislation. In cases when it is found that an employer has breached the safety requirements and
as a result of that the employees have to suffer, there shall be a case of negligence (Stone and
Arthurs 2013). The employees and the employers are bound by the code of legislations.
Therefore, the workplace has to ensure that there are safety regulations that the employers abide
by. Therefore in handling such situations, the hired labour shall be made to abide by such
regulations and has to also learn how to deal with the handling of equipment. The employer also
has to ensure that there is proper supervision and the people employed in the workplace abide
and are governed by such regulations. There is also a need to keep a track on how injury and
cases of harm inflicted on the employers are taken into consideration. In cases when the laborer

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is dealing with harmful equipment, it is obligated that the employer takes all necessary
precautions. While operating on a harmful equipment, if it is found that there was not necessary
training to deal with such equipment, then the case of negligence shall also take place. If the
employer does not provide any supervision and the employee is seen to be harming and injuring
himself, then in such cases, it can be claimed that there was no proper safety requirement that
was followed at the workplace. In the instance of the above mentioned case, it was found that the
employer had not adhered with the safety requirements and therefore, the court held that the
employer was negligent and thus liable. The court was of the opinion that the employer had not
adhered to the basic standards of care. The court also opined that in cases when the dismissal is
unfair and without any unjustified reason, the employer shall be responsible for unfair dismissal.
The dismissal of the employee was illegal and therefore the court held that the employer was
liable for conducting the practice of dismissal unfairly. The employer was held liable for
dismissing the employee without any prior reason and for unfairly dissing the employee. The
court held in the favour of the employee and also ordered that the employer be allowed to
reinstate the employee as the reason behind the dismissal was unfair. The employer was ordered
to make sure that the employee be allowed to be reinstated and thus he shall also be allowed to
begin his work as the reason behind the dismissal was unfair and also the employee had not done
his job properly and without any justification and any forbearance to justice and fairness (Beus,
McCord and Zohar 2016). The safety regulations were not complied with.
Question 6
Domestic violence at workplace has always been a difficult situation and it has been
pervasive all through workplaces without any forbearances to justice. There has been an ideology

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in the regard of domestic violence at workplace because throughout the time immemorial it has
been found that legislative steps have been taken to ensure the rights of the employees
(Wibberley, Bennett and Hollinkare 2017). The employees have been subject to immense trauma
in the workplaces as they have faced tricky situations. The reason behind having strict rules and
regulations at workplace is because women are tortured and they do not feel safe and secure at
the workplaces they are working (Hofmann, Burke and Zohar 2017) .Elizabeth Broderick’s
ideology is an important way of addressing the burning issue of domestic violence at workplace
and the legislation actions to that respect also point towards the same point that there has to be
strict laws that ensure that people feel secure and safe at workplace. Facing domestic violence at
workplace have been a burning and pressing issue and domestic violence at workplace as well as
household domestic violence are intertwined in the way that employees who have had to face
such situations and have survived the trauma of domestic violence might not be able to perceive
the general working of the workplace and might also feel threatened. The employees shall feel
threatened and also the whole incident will have an adverse effect on the total behavior and get
up of the employee(Wright and Lansbury 2016).. Therefore, the process of elimination of
domestic violence should not be seen as an isolated step and it shall be seen as a stumbling block
in the development and betterment of the workplace environment. Incorporating strict laws and
regulations shall not be an important and effective remedy in relation to domestic violence and
therefore only by means of laws and legislation, it cannot be ensured that the regulation of
workplace environment will be bettered as well as the relation between the employer and the
employee will recover. Therefore, though Elizabeth Broderick’s ideology has a cogent point but
her points cannot be taken in the right earnest so much so that her points cannot be legislatively
enacted. Therefore, it is easy to say that combining domestic violence and family violence in the

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whole concept of violence shall not incorporated as a legislative regulations and shall also not be
part of any enforcement contractual obligation. There cannot be a single code taking into account
both domestic and household violence as it is not legislatively viable. Family ethics and
workplace violence cannot be combined in one code and they cannot be amalgated and also it is
not possible to form a unified code. The concept of a unified code for addressing the issue of
domestic and workplace violence shall be detrimental to the whole working of the workplace and
the legislation shall not be able to uphold the interest of the workplace. The code shall not be in
light of the Australian Commonwealth and therefore it shall not be prudent to incorporate two
laws into one code.

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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.
Hofmann, D.A., Burke, M.J. and Zohar, D., 2017. 100 years of occupational safety research:
From basic protections and work analysis to a multilevel view of workplace safety and
risk. Journal of Applied Psychology, 102(3), p.375.
Beus, J.M., McCord, M.A. and Zohar, D., 2016. Workplace safety: A review and research
synthesis. Organizational psychology review, 6(4), pp.352-381.
Wibberley, G., Jones, C., Bennett, A. and Hollinrake, A., 2017. Domestic violence a
management challenge: How trade unions can help in overcoming challenges to gender equality
in the workplace.
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.