2-1 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev This is the prescribed textbook for your course. Available NOW at your campus bookstore!

2-2 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Workplace relations law Chapter 22

2-3 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Learning objectives At the end of this chapter you should understand: the interaction between workplace relations law and employment law the principal sources of Australian workplace relations law the workplace relations systems in Australia the major public policy factors that underpin workplace relations law the role that international standards play in workplace relations law the major common features of Australian workplace relations systems the main objects of the Fair Work Act 2009 (Cwlth) the content of the National Employment Standards

2-4 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Learning objectives (cont.) the way in which an enterprise agreement is distinguished from a common-law contract of employment the way in which an enterprise agreement is distinguished from an award the major functions of Fair Work Australia and the Office of the Fair Work Ombudsman, including workplace inspectors the major roles, rights and responsibilities of trade unions in workplace relations law the circumstances in which industrial action is and is not lawful the principal remedies against unlawful industrial action and the methods of enforcing workplace relations rights.

2-5 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Introduction Australian law governing the employer– employee relationship goes beyond common-law contractual principles. There exists a further body of law: workplace relations law. This law concerns not just the contractual relationship between an employer and an employee but also the broader framework that creates and enforces minimum rights and obligations in the workplace.

2-6 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Sources of workplace relations law Australian workplace relations systems are created by statute, not the courts. All states (except Victoria) and the Commonwealth have their own statutory workplace regulation systems. Victoria has referred its powers to the Commonwealth.

2-7 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev National workplace relations system From 1 January 2010, New South Wales, Queensland, South Australia and Tasmania referred law-making power with respect to industrial relations to the federal parliament to create a national workplace relations system. Foundation of this system is the Fair Work Act 2009 (Cwlth) State industrial relations legislation still exists and covers a minority of employees.

2-8 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Features of Australian workplace relations law Legislation establishes the system Legislation has industrial, social and economic objectives Mandatory minimum terms, relating to both wages and conditions of employment are imposed on common law contracts by statue or by industrial awards made by industrial tribunals Creation of industrial tribunals with power to make industrial awards on defined matters, and to varying degrees, compulsorily conciliate and arbitrate industrial disputes

2-9 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Features of Australian workplace relations law (cont.) Regulation of the role of trade unions and employer associations Recognition, to varying degrees, of the right to enterprise bargaining Protection, to varying degrees, freedom of association (i.e. voluntary unionism) Creation of specific rights and obligations concerning the termination of employment Provisions relating to compliance, remedies and enforcement of rights and obligations in workplace relations

2-10 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Objects of workplace relations law Provide rights and obligations not available at common law Codify and expand the common law Provide rights and obligations across the workforce Redress what is regarded as unequal bargaining power in contractual negotiations between an employer and an employee Continually changes in response to developments in economic, global, political, technological, workplace and industry conditions

2-11 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Fair Work Act 2009 (Cwlth) Primary workplace relations legislation in Australia Its application provides a single set of national laws that govern workplace relations across Australia. Employees covered are those employed: –by a constitutional corporation –in Victoria, Northern Territory or Australian Capital Territory –by sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania – by the Commonwealth or a Commonwealth authority –as waterside, maritime or flight crew employees in connection with overseas trade or commerce.

2-12 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev National Employment Standards (NES) A safety net of ten enforceable minimum employment terms and conditions applicable from 1 January 2010 Cannot be altered by an employer Together with pay rates in modern awards and minimum wages provide guaranteed minimum employment terms and conditions

2-13 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev National Employment Standards (cont.) 1. Maximum weekly hours of work 2.Requests for flexible working arrangements 3.Parental leave and related entitlements 4.Annual leave 5.Personal/carer’s leave and compassionate leave 6.Community service leave 7.Long service leave 8.Public holidays 9.Notice of termination and redundancy pay 10.Provision of Fair Work Information Statement

2-14 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Regulation by industrial awards An industrial award is a legally binding order relating to industrial matters, including both wages and conditions of employment made by an industrial tribunal. A modern award is an industry or occupation based set of minimum employment standards made by Fair Work Australia. Following simplification and reduction of existing federal awards, there are now 122 modern awards. Modern awards cover all employers and employees working in industries/occupations covered by a modern award who earn less than $

2-15 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Modern awards Making of awards –Compliance with relevant legislation and administrative law principles of natural justice –Utilises conciliation and arbitration Parties bound by awards –Award coverage attaches to the type and place of work, and to employees and employers within:  a defined industry sector  an occupational group  a specific geographic area.

2-16 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Modern awards (cont.) Duration and cancellation of awards –Specified duration when made –Cancellation by industrial tribunal (rare) Variation of award –By the industrial tribunal that made it Interpretation of awards –By federal and state courts Award test cases –Allow general rulings of principle to be laid down

2-17 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Fair Work Act and common-law contracts From 2010 individual statutory agreement-making prohibited i.e. previously Australian Workplace Agreements or Individual Transitional Employment Agreements Fair Work Act provides that common law contracts negotiated by employees whose annual earnings exceed a threshold of $ need not comply with award conditions, although they will be subject to the NES. Reflects rationale that employees in this income bracket do not require the protection of awards as may be required by more vulnerable workers.

2-18 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Enterprise agreements Collective agreements only—must be made by a group of employees and the employer/s and not by an individual employee and employer. Such agreements should be the product of negotiation. Three types of agreement under the Fair Work Act: –Single-enterprise agreements made between a single employer and group of employees –Multi-enterprise agreements made between two or more employers and groups of their employees –Greenfields agreements—single or multi- enterprise agreements relating to genuinely new enterprises before any employees covered by the agreement are employed

2-19 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Enterprise agreements (cont.) Following notification, negotiation and voting processes, an enterprise agreement must be lodged with Fair Work Australia for approval. Fair Work Australia must be satisfied that the agreement meets the ‘better off overall test’ – that all affected employees will be better off than under the relevant modern award. The Fair Work Act imposes an obligation on anyone involved in the bargaining process to act ‘in good faith’. Bargaining representatives may include unions, employee consultative groups or other agents.

2-20 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev State statutory employment agreements All state workplace relations systems recognise employment agreements under their legislative schemes, but with varying characteristics. The Fair Work Act provides that a modern award or enterprise agreement prevails over a law of a state or territory. This is subject to exceptions in regards to occupational health and safety, workers’ compensation and training arrangements.

2-21 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Registered organisations The Fair Work (Registered Organisations) Act 2009 (Cwlth) deals with the registration and accountability of unions and employer associations in the national system. When a trade union or employer association is registered by Fair Work Australia it is known as a registered organisation and obtains certain statutory rights and obligations under the national system.

2-22 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Registered organisations (cont.) Registered organisations must comply with statutory requirements in relation to financial affairs, compliance with its rules and elections and ballots for members. Freedom of association is specifically upheld by. the provisions of the Fair Work Act—the choice as to whether to belong to an organisation or not. The Fair Work Act provides injunctions and heavy penalties for conduct by employers, employees, independent contractors, employer associations or trade unions which breach the freedom of association provisions.

2-23 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Rights of registered organisations The right to initiate proceedings in industrial tribunals such as dispute notification and resolution. The right to be a bargaining representative when negotiating enterprise agreements. The right to initiate some legal proceedings on behalf of members. The right to engage in protected industrial action. Rights of entry for trade union officials under specific limited conditions to enter workplaces and inspect employment records and the work environment.

2-24 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Statutory workplace relations bodies Conciliation and arbitration bodies (such as industrial tribunals including Fair Work Australia) Bodies with specific powers to approve agreements or investigate complaints (such as the Office of the Fair Work Ombudsman) Courts with power to enforce rights (such as the Federal Court of Australia)

2-25 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Fair Work Australia Replaced and assumed most of the functions of the Australian Industrial Relations Commission as the principal conciliation and arbitration body in the national workplace relations system. Functions: Has responsibility for minimum wages in the national workplace relations system Deals with cases of unfair and unlawful dismissal Deals with the resolution of industrial disputes and applications for protected industrial action Makes and deals with modern awards Decisions must take into account public interest including the state of the national economy.

2-26 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Office of the Fair Work Ombudsman Independent statutory agency created by the Fair Work Act Role is to ‘promote harmonious, productive and cooperative workplace relations and to monitor, enquire into, investigate and enforce compliance with relevant Commonwealth laws’. Fair Work inspectors investigate and enforce compliance with federal workplace laws Fair Work inspectors may: –conduct education campaigns –conduct compliance audits –investigate workplace complaints –investigate suspected contraventions of federal workplace relations law –take steps to enforce relevant workplace law through the courts.

2-27 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Forms of industrial action By employees: –Picket lines –Work bans –Work-to-rule campaigns By employers: –Lock-outs

2-28 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Lawfulness of industrial action Contract law Law of torts: –Industrial torts –Inducement to breach contractual obligations –Conspiracy to injure –Intimidation –Trespass Statute law; industrial action may be in breach of: –industrial awards –orders of industrial tribunals –workplace relations statutes.

2-29 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Protected industrial action Protected industrial action means the party taking the action is immune from civil liability to the other party and is: –allowed while negotiating employment agreements –undertaken by parties to negotiations and not third parties –preceded by written notice of intended protected action at least three working days prior to action being undertaken –preceded by genuine attempts for agreement –protected for specified period of time.

2-30 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Protected industrial action (cont). The bargaining period can be suspended or terminated by Fair Work Australia. Where the bargaining period has been terminated, Fair Work Australia is only able to arbitrate the dispute in very limited circumstances.

2-31 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Industrial action and enforcement Strike pay Payment of wages to employees engaged in industrial action is unlawful unless the action is caused by genuine health and safety issues. Orders preventing industrial action Fair Work Australia can make orders against unions, individual employees or employers to stop or prevent industrial action which orders are enforceable by the Federal Court of Australia.

2-32 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Industrial action and enforcement (cont.) Remedies for unlawful industrial action: –Damages –Injunctions –Specific performance Secondary boycotts: –Industrial action taken involving action directed at innocent third party, with whom the target employer is dealing unlawful under the Competition and Consumer Act 2010 (Cwlth)

2-33 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev Industrial action and enforcement (cont.) Conciliation and arbitration of disputes: –Undertaken by relevant industrial tribunal; legislation restricts powers of tribunal Enforcement –Unlawful industrial action:  Civil action  Prosecution –Industrial offences under statute:  Fair Work inspectors  Statutory office holders –Breaches of awards or agreements:  Relevant courts