workplace law assignment
yolac
BSL202L12019.pptxBSL202 WORKPLACE LAW
LECTURE 1
WELCOME
The UNIT INFORMATION and LEARNING GUIDE is available on LMS.
LMS will also give you access to
announcements
lecture recordings
PowerPoint slides used in lectures
the assignment questions
your in-semester marks
links to relevant legislation
additional reading in My Unit Readings
other learning exercise and materials
Text and learning materials
van der Waarden (2018) Employment Law, Concepts and cases, 4th edition, LexisNexis
Legislation (via LMS)
Articles and media (via LMS)
Other resources, for assignment
(Employment Law Library)
Assessment
Assignment – 1600 words 40%
Mid semester test – online 20 Qs 10%
Final exam – open book, 2 hours 50%
No requirement to pass any one assessment
Learning outcomes
Upon completion of this unit you should be able to demonstrate your understanding of
the legal nature of employment relationships.
legal rights and obligations of Australian employers and employees and
See UILG for more
Introducing workplace law
Law relating to the performance of work
about legal relationships between individuals
and about legal relationships between collectives and individuals
Historical context
The British colonised states in Australia with the benefit of both free and convict labour.
The British law of master and servant was imported in relation to the free settlers
Indentured workers (before contracts)
Governors stipulated rules for wages and conditions of work, and these were influenced by colony conditions.
Australian employment relationships are still stylised by extensive government regulation.
Purposes for workplace law
Employee protection or economic efficiency, or both?
Parliaments & courts have created law that restricts the freedom of contract in employment agreements.
A primary purpose of statutory work law is adjustment of a perceived imbalance of bargaining power between an employer and an employee.
Employee rights embedded in statutory law are applicable irrespective of any contrary agreement.
Legislation also has economic efficiency objectives. e.g. 2006 WorkChoices reforms introduced individual agreements that displaced awards (now unlawful)
Sources of rights and obligations
Common law
found in court and tribunal judgements
interprets legislation, modern awards, enterprise agreements
interprets contractual terms
e.g. identifies the type of work relationship, a contract of employment or other type of contract for work
implies contract terms where necessary
Relevant legislation
Legislation
Provides minimum standards (e.g. wages, leave)
Adds rights and duties (dismissal, health and safety)
Imposes collective obligations (bargaining standard)
Procedures for dealing with legislative breach
Both federal and state law is relevant in Australia
The Australian constitution divides power between the federal government and the states (section 51 concurrent powers; nb. section 109 inconsistency)
Most Australian states have referred legislative power to the federal government, to deal with employment matters (not WA)
Regulatory bodies
The Fair Work Commission
The Fair Work Ombudsman
Federal Circuit Court (Fair Work Division)
Federal Court of Australia
Australian Human Rights Commission
WA Equal Opportunity Commission
Safe Work Australia
Department of Commerce, WorkSafe WA
WorkCoverWA
International standards
United Nations - human rights covenants that create standards on freedom of association, collective bargaining, industrial action, discrimination against women, equal pay, minimum pay, maternity leave, etc.
International Labour Organisation – conventions that create standards on hours of work, minimum age, injury compensation, child labour, forced labour, termination of employment, etc.
Australia is a UN and ILO member. If a convention or other instrument is ratified its obligations are to be implemented by federal legislation.
Multiple sources
Relevant law for an individual employment relationship:
The individual contract, written or not
The National Employment Standards, found in the Fair Work Act 2009
A modern award OR enterprise agreement
State legislation on discrimination, health and safety, and workers compensation
IRAC approach
I : Identify legal issue – that means isolating the issue without any facts, and focussing on the topic of law that is relevant
R: Relevant law (cases and legislation) – that means discussing the case law and or legislation that illuminates the topic of law that is relevant, and not discussing any of the facts
A: Apply law (to the facts) – now its time to discuss how the cases and legislation can be applied to the facts; no new cases or legislation are mentioned at this stage
C: Conclude (on the factual issue) – conclude on the question asked with reference to the facts; no new cases or legislation are mentioned at this stage
