RMIT BUSM4591: Australian Employment Law - Labour Law Questions

This assignment addresses key aspects of Australian employment law. It begins with an analysis of the Harvester case and its impact on the current minimum wage system, comparing historical and contemporary standards. The assignment then examines implied rules and regulations in employment contracts, focusing on the Comcare v Banerji case and the Israel Folau case, highlighting the implications of employee conduct and freedom of speech. Further, the assignment explores anti-discrimination laws in Australia, including relevant legislation and guidelines, as well as the case of McBain v Victoria. Finally, it discusses Occupational Health and Safety (OHS) laws in Victoria, comparing them to the Australian WHS Model and outlining their respective strengths and weaknesses.

University
Australian Employment Law
Questions in relation with the Labor Law of the country
Student Credentials
2/24/2020

Labour Law 1
Australian Labour Law
Question 1:
As per the ex parte case that is the basis of the discussion, H.V. McKay, also that has been
widely called the Harvester case or the Harvester Decision was concerning the wages that are
reasonable for a labourer that is unskilled. At that time, it was being difficult for the people to
figure out what was the basic wage for the workers and in order to make it a standard wage,
this judgement was passed. Later, this judgement was considered as a basic standard for the
national minimum wage system in Australia. Justice Higgins from the Commonwealth
Conciliation and Arbitration Court was the one who was the judge deciding in this case.
There was a time, when a person was being given 5 shillings a day and another being paid
around 7 or 8 shillings a day for the same time duration. In order to avoid any hassle and
create a constant framework to measure the income and remove discrimination and poverty,
this method was adopted (Fair Work Commission, 2019).
However, since the year of 1907, there has been a whole rise in the living standards of
individuals living the country yet these changes have been made considering the previous
cases that have been decided. People then were living on 42 shillings for a whole week, but
when compared to the laws in the modern Australia, as per the fair work’s website, anyone
can find out that the basic minimum wage for a person per week is around $ 740.80 which is
for around 38 hours. Still this is an amount that is just the basic and many people cannot get
buy this for the whole week, which is common. Living expenses of every individual differs
from the other and by the time, rates be it related to rent or living situation or food or clothing
all the basic things have been on a constant rise. When the judgement was passed in 1907, the
approximate cost was built around the basic amenities, that included, bread, vegetable, fruit,
milk, meat, rent then and as such. Now the basic amenities also include, car maintenance

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cost, insurance, savings, school costs (if any children). This list just does not stop on these
expenses, there are wide range of other expenses that need to be considered due to the
changed times (Fairwork Ombudsman, 2020).
Question 2:
There are a certain implied rules and regulations that each employee needs to work in
accordance with. Otherwise all of the employment contracts in Australia are in some or the
other manner in consideration with the basic standards as specified by the fair work
ombudsman as well as the commonwealth. These two were the main two legislative bodies
that made certain standards so as to make these matters much convenient to decide upon or
standardize the whole process. In the case of Comcare v Banerji [2019] HCA 23 it was
identified that a public servant was tweeting about the internal workings of the legislative
body, now the issue does not arise if the defendant is posting something about his/her work or
just a general post relating to the employment, but about the internal processes or the
confidential information (Byrne, 2019). Now this kind of an act is infringement of certain
unsaid rules and regulations is violation of ethics and basic laws of labour. Even in scenarios
as such a confirmation from the employer even regarding their own views can be taken if
there is need to post any contradictory or something that can or might cause harm,
specifically on the social media (Fairwork Ombudsman, 2020).
The instance as such of the well -known rugby player, Israel Folau and Rugby Australia, a
similar thing happened, when the famous rugby player was dismissed from his contract with
Rugby Australia due to his comments on the social media site Instagram. As per the
organization, the post as uploaded by the famous professional player breached their code of
conduct. He with an attempt of posting something as his opinion clearly posted on the social
media handle that the homosexuals, among others, would go to hell. As a result of which, he
was dismissed and was later terminated. Against this, the Rugby player launched court

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proceedings against the organization for the wrongful or unlawful termination. Later on the
settlement was also made between the parties according to which, Israel Folau was
compensated as well for dismissing him all of a sudden and the grounds specified by him
were based upon freedom of religion and not the breach of the code of conduct (Mark, 2019).
Both of these cases are quite similar to a certain level but, differ from each other once they
are studied in detail. These certain issues arise when the code of conduct as such is not as per
the regulations of the statutory body or the authority. In cases as such, discussion everything
in respect with the opinions one has regarding the work or as such, everything needs to be
discussed with the employer, rather than posting confidential information on the social media.
Question 3:
In any country, it is not legal to discriminate people on the basis of their sex, status, age, race
or disability or gender for that matter. Since, it is something that is against the human rights
of each and every individual, these kinds of activities have been banned from several
countries and have been labelled as an illegal activity. In Australia, there are a certain acts to
prevent any kind of discrimination in the country. There are certain federal laws inn Australia
that are related to anti -discrimination, most common ones are the Age Discrimination Act
2004, Disability Discrimination Act 1992, Racial Discrimination Act 1992 and Sex
Discrimination Act 1984 (Australian Human Rights Commission, 2020). The Attorney
General’s department is the one that takes care of all of these discrimination based cases and
fights against the discrimination in any form in the country. There are a certain guidelines as
well that take care of the discrimination issue this is the Australian Government Guidelines
on the Recognition of Sex and Gender. These are regulated and monitored by the Attorney
General’s department as well. The framework according to which these guidelines are
constructed include the gender classification that has been consistent alongside the standard

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procedure to recognise any kind of change being made permanently in concern with the
gender of a human as well as all the documents required and the personal documents as well
to identify the person for the Government Departments as well as agencies of Australia
(Attorney General's Department, 2012).
The present Commonwealth hostile to separation system gives a significant structure that is
authoritative to advancing correspondence in Australia and this here has so many highlights
that are positive that in some or the other manner secure to work against a certain specific
types of bifurcation in conditions that are specific. Despite of highlights as such, different
people as well as the parties as such inside the Australian people group with many means
experience separation, and alongside the thought of substantive uniformity stays, through
such a rate that it is not slowed, despite everything distant. Substantive fairness permits
various parties as such to be dealt through distinctive aspect as such, so that they can enjoy
the best outcome possible of their so called human rights in a similar manner. It as such
contrasts through a formal balance, this can be achieved soon and in a better manner if the
law as such related to the same has been treating certain individuals in the same manner.
Formal fairness as such may not address the segregation as; it does not consider the burden
experienced by various parties as such (Australian Government, 2020).
Meanwhile, the states have their own discriminatory laws apart from the international laws
based upon the kind of discrimination and the severity of the discrimination that was done.
These are implemented or regulated on the basis of the harm it causes in particular states. By
the year 1996, almost all of the states were provided chances of proper enactment and even
every state was given options to properly prepare laws relating to the same so as to protect
Australians under it. In all, the Australians are protected under both the Commonwealth as
well as the Laws by the local state or the particular region as well (Equal Opportunity
Commission, 2020).

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In fact, in the case of McBain v Victoria (2000), the plaintiff here, Dr. John McBain a doctor
who was consulted as evidenced through the file of the case, by Ms. Lisa Meldrum, who
wanted to become a mother and wanted to give birth to a baby through the process of IVF or
the well -known in –vitro fertilization through a donor sperm. Just for the background here,
that Dr. John McBain is basically a doctor who deals and also specializes in technology
related to reproduction or the processes related to pregnancy. Then doctor enquired if Ms.
Lisa was married, to which the reply from the other side received was a negative. To this, the
doctor responded as there was a prohibition imposed on him by the Infertility Act that was a
Victorian Legislation, specifically to the single women (Parliament of Australia, 2000). Later,
Dr. McBain filed a suit as to specify the inconsistency between the two laws and proceeded
to seek declaration regarding the same. Inconsistency in one law can make the other illegal as
well, which is why the Judge in the case held that, the violation as such of the section 22 of
the Victorian Legislation, the Sex discrimination Act and this whole inconsistency became
unlawful under the section 109 of the Australian Constitution (Commonwealth Consolidated
Acts, 2020). As under this section, if a state law is in clash with the Commonwealth law then,
in such a case, the Commonwealth law will prevail. In the end, the Honourable Judge also
declared that women in order to become an eligible candidate for the infertility treatment do
not have to be a married lady by any means or be in any kind of de –facto relationship for that
matter (Law Council of Australia, 2020).
Question 4:
OHS or the Laws related to Occupational Health and Safety that as such have been a part of
Victoria since 2004, is the only highest priority Workplace Health and Safety Statute in the
state of Victoria. This law just not only talk about the rights of the people covered under the
OHS but also, discusses the duties they behold along with a certain principles that need to be

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followed or kept in mind. This act tends to seek and protect the health as well as the safety of
the people who are employed and are working (Victoria State Government, 2020). This act
also makes sure that the work activities as such are not harming or putting lives at risk of the
public.
There are a certain drawbacks as well as certain perks to the decision made by the Victorian
Government of not as such adopting the WHS Law Model as specified through the Australian
government. The drawbacks here to the Victorian Legislation that is the OHS Laws include:
1. Some of the guidelines as specified by the OHS Laws are not even a bit similar to
each other as it makes things difficult for the citizens to follow through and confusing
as well. Specifically the sections 13-16 of the Model WHS Laws are few of those
categories which is why these laws are imposed.
2. While as there are a few sections in both the laws that are so identical that seem like
the other law is being followed. The main issue here is that there is no uniqueness to
the whole act, for instance the section 17 of the Model WHS Laws is quite similar to
the Section 20 (1) of the Victorian OHS Laws (Safe Work Australia, 2018).
3. The all the obligations as such when gathered from the employers as well as the self –
employed people towards their employees in all combines the duties as such imposed
by the obligations of a PCBU under the Model Laws. There is no particular or even a
significant change in certain sections regarding this.
4. Victorian OHS laws is confined to only a certain situations that can be caused or may
cause harm at the workplace, while, the Model WHS Laws are much more open to the
idea of many kinds of harms being caused at the workplace. This has been clearly
stated by the words as such being utilized, “anything arising from the workplace.”
5. There are no real changes being made for the volunteers as such.

Labour Law 7
6. Officers as per the WHS laws who have performed their jobs with the due diligence is
agreed upon as a good work and helps maintain the safety of people. The Victorian
Law also needs to be regulated as such that there is a performance of the officers with
due diligence so as to provide with the best output and results (Australian Industry,
2011).
Question 5:
Any kind of unfair dismissal applications are a very normal incident in the working scenario.
Bosses or the employers on day to day basis, end up in the critical situations when they are
forced to go through with them. While the result of each out of line expulsion case will in
general on its own being turned for individual benefits, chances as such to learn and revive
information as such related to the individual, reliably emerge – and information is power with
regards to overseeing claims hazard.
Similar is the case of, Walker v Salvation Army (NSW) Property Trust t/as The Salvation
Army – Salvos Stores [2017] FWC 32, where the business rejected a head supervisor for
genuine offense in the midst of claims of burglary (Kim Hodge, 2017). The business
depended on the CCTV film that in some or the other manner implied to depict the head
supervisor holding around four $50 notes. With this being cleared, the head supervisor was
not allowed a chance to appropriately see the evidence as such produced by CCTV nor was
he allowed reacting to it during the examination or preceding her rejection. The out of line
rejection guarantee succeeded. In cases as such, when such a large firm is connected to a
case, a thorough investigation of the matter becomes a necessity. It is just in uncommon
occurrences that it will be superfluous for a business to offer a representative the chance to
react appropriately to claims made against them (Dawson, 2017).

Labour Law 8
In thinking about the case as such, the Senior Deputy President Hamberger noticed it was a
more genuine one that was supposed to direct the higher standard of sensible fulfilment
which should have been applied while deciding if the lead happened. SDP Hamberger
recognised, the evidence exhibited that Ms Walker was grasping a $50 note, however it didn't
set up that she had gotten that cash from the client. SDP Hamberger as such finished up the
client had not paid Ms Walker for the furnishings and thus held that, Ms Walker in any way
had not occupied with genuine unfortunate behaviour and that her end was uncalled for. SDP
Hamberger was amazed at the absence of meticulousness in the inward examination and that
the Salvation Army so promptly acknowledged the client's cases that he had paid in front of
the record of Ms Walker (Australian Workplace Training and Investigation, 2017).
In finding that the rejection was uncalled for, SDP Hamberger considered the criteria in
segment 392 of the Fair Work Act 2009 and granted the Store Manager the most extreme
accessible pay of twenty a month and a half's compensation likening to $22,404.50 (Anon.,
2017).
This choice right now the burdens of undertaking an inner examination which was not
exhaustive and made presumptions (that is, the client's record was honest), instead of
adopting an increasingly liberal strategy to every single attested truth.
Question 6:
Local and family viciousness isn't only a private or individual issue. At the point when a
worker is living with residential and family brutality, there are regularly genuine expenses
and negative effects that stream to the working environment. In Australia, violence by partner
or any kind of domestic abuse is the main supporter of death, handicap and disease in ladies
matured 15 to 44 years. It is answerable for a greater amount of the ailment trouble in ladies

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than numerous other notable hazard factors, for example, smoking and stoutness (Australian
Law Reform Commission, 2011).
In the 2002/03 the expense as such of an abuse by a partner in any manner as such to the
economy of Australia was assessed at an approximate of $8.1 billion. On the off chance that
no deterrent move is made, this expense is anticipated to ascend to $9.9 billion every year by
2021/22. An amount of $235 million of this $9.9 billion shall be borne by the businesses
while a $609 million will be borne underway related misfortunes (Elizabeth Broderick,
2014).
Inside the number of inhabitants in ladies who have encountered viciousness, or are right now
encountering brutality or any kind of domestic abuse, the Australian Bureau of Statistics
assesses this that somewhere through the range of 55% and 70% are as of now in the so
called workforce – that is, roughly 800,000 ladies, or around one out of six female specialists.
This so implies upon a very critical number of Australian work scenarios that will be affected
by ladies' encounters of local and family viciousness or the case of domestic violence as such
(Australian Human Rights Commission, 2020).

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