Exam Problems/ Questions: QUESTION 1: There are a number of different sources of legal obligations for employers with respect to their employees. Explain the various sources of obligations and entitlements and where relevant, how the various sources intersect. (10 MARKS QUESTION 2 Compare and contrast claims made arising from wrongful termination at common law and unfair dismissal under the Fair Work Act 2009. Explain in your answer the availability to, and the advantages and disadvantages for employees whose employment has been terminated of each type of claim. (10 MARKS) QUESTION 4 Answer (a), (b) and (c) A Company is negotiating with a Union (which is the Bargaining Representative for the relevant employees) for an enterprise agreement. The parties have agreed on all outstanding matters except for a claim by the Union that the Company should take out and maintain a policy of insurance covering all the employees against loss of income in the event of non-work related illness or injury. The Union thinks the negotiations have gone on long enough and that the company is holding out. The Union wants the employees to engage in industrial action in support of the outstanding claim. (a) Explain what steps the Union has to take in order to engage in industrial action which is protected industrial action under the Fair Work Act 2009. (4 marks) (b) What are the dangers for the employees and the Union if the proposed action is not ˜protected action’? (4 marks) (c) Do you think the proposed industrial action (referred to above) could be protected under the Act? (2 marks) QUESTION 5 Jill until recently was employed by Ajax Limited on a fulltime basis for 5 years. Ajax Limited employs 54 employees. Jill was paid $120,000 per annum, but the terms and conditions of her employment are covered by an enterprise agreement. On 28 July 2010 her manager, Mr Smith called her into his office for a meeting. Mr Smith advised Jill that the meeting had been called to discuss her work performance. He advised her that he was far from happy with her work performance and attitude and that he considered it best for all concerned if she resigned. Prior to this meeting, Jill had always thought that she had been doing a good job, and had heard nothing to the contrary from Ajax Ltd. Jill attempted to clarify with Mr Smith the nature of his concerns, but was met with the response that: œit would be better for all of us in the long run if you finish up today. If you go today I will arrange for an appropriate reference, but if you don’t we will be obliged to let you go soon. You admit yourself that you are not a team player and this organisation needs team players. At the end of the meeting Jill was very upset and tendered her resignation and then left the workplace. The next day however she had second thoughts and realised it was going to be very difficult for her to find another job. .She therefore wrote to Ajax Ltd and asked that she be given her job back. Ajax wrote back saying: (a) Jill had resigned and they saw no reason why they should give her her job back; and (b) In any event Mr Smith had lost confidence in Jill and felt he could not work with her again in view of his belief that she was a poor worker. Jill has come to see you to seek your advice. Advise Jill on: a)what claims she may be able to bring under the common law or the Fair Work Act, (6 marks) and b)the respective strengths and weaknesses of those claims (4 marks) ¦¦¦¦¦.. QUESTION ONE Employment law is apprehensive with the rights that employers and employees are obligated to each other. All employees have obligations and accountabilities stemmed out of four sources. These include; Federal legislation, state legislation, awards, enterprise arguments and Australian Workplace Agreements and common law[1]. I. Federal legislation These are corporate powers enacted in 2006 by the Commonwealth to control agreements in employment which are formulated between foreign, trading or financial firms and their employees. These types of regulations cover about 60% of the Australian workforce. Preceding the commonwealth’s constitutional power to enact laws on employment and industrialized associations in 2006 issues emerged to be constrained to federal employees and those who worked in the boundaries and Victoria. Howard Liberal Government introduced work choices due to mainstream command over the House of Representatives and the senate in March 2006. As the first chief change since 1907 work choices was to be taken apart by Rudd Government, however, the necessary suggested modifications came into effect till 2010. These regulations contain among others court and tribunal decisions, law reports, awards, key publications and other relevant government sites that provide the federal government with guidelines in Labor laws (Australian Constitutional Law 2011). II. State legislation There are no constitutional restrictions in regard to the States’ industrial relations authorities. Legislatures, industrial tribunals and commissions are normally liberal to undertake a broader and a less technical approach than the commonwealth approach. A common law award created by industrial relations tribunal is usually illegal in the federal system. Majorities of the awards which were still in place when the new government took power did not make any difference to the employees[2]. The legislations also prescribe the workers compensation and safety and health laws. Other legislation which may affect the employment arrangements like disability services and equal opportunity are included in this legislation. Besides, common wealth legislation concerning Fair work Act 2009, Privacy Act 1988 and Social security Act 1991 are contained under this source[3]. III. Awards, enterprise agreements, Australian Workplace Agreements Regulation of pay and workplace settings through making and approving of awards was conducted by the Australian Industrial Relations Commissions and state commissions. This was a lawfully enforceable order produced by a federal or state industrial tribunal. These awards bind employers and employees to set pay rates and circumstances for a fixed period of time. This was an agreement made directly between an employer and employees for a determinable time period. The employees agree to be more fruitful efficient and flexible in exchange for higher pay and improved conditions. Some types of agreements under this source include; enterprise bargaining, fixed-term contract, individual contract of employment and award free contracts[4]. Enterprise bargaining is a course of action which employers and employees apply to agree on a set of rules and conditions at their place of work. These results into a work place agreement. Fixed term contract may be connected to a specific date or project conclusion. It may connote to employees covered by awards or contracts in specific conditions. It is supplementary commonly used for workers who are not covered by awards or contracts like senior management. In personal contract of employment state of affairs of employment and the rate of pay are agreed between the employer and employee. It pertains in situations where an employee is not covered by other categories of employment contracts awards or accords. This type of contract does not need to be registered with any particular industrial court however at the breach of the contract; application may be made to courts under common law. It also has some specific conditions for employment like annual leave, parental leave and long service leave (Henwood, 2002). This contract does not give less important privileges than those composed in an award if the employee’s employment is wrapped up by extra benefits. Lastly, in award free contract covers employment terms mutually agreed upon between employer and employee[5]. IV) Common law This is a contractual kind of employment agreement between the employer and employee. The employees concur to input their labor and skills under the control of employer in reward for money. The terms must concur with the legislations, award or enterprise agreements. The obligations and entitlements are reasonably fundamental common intelligence. The employer must be able to give commands which must be obeyed by the employee without question unless the orders contravene his or her rights. Regular attendance at work on agreed times and obedience of instructions must be conformed to by the employee. The worker must show diligence, competency, loyalty to employer and the employer must embrace accountability and responsibility for honest mistakes and accidental breakages by employee (Harvey 2003). The workers must not make any secrets profits at the employer’s expense and they must not disclose all confidential information of their boss. Proper remunerations must be given to the employee in accordance to the quality and quantity of task performed. This common law also stipulates on implied terms that the law must be suitable and unbiased and necessary to give a business ethics to the contract such that the contract will be effective. The provisions must be clear of expression and must not contradict any expressed term of the contract[6]. Interaction of these sources of laws Any modern award or enterprise accord must not exclude the national employment standards provided by the state. They might however include provisions dealing with the National employment standards contained in part 2-2 and regulations made for the purpose of section 127. The State employment standards have impact relating to terms included in modern award or enterprise award as prescribed in the section[7]. Enterprise contracts might have inclusion of terms which have the same impact as provisions of the State employment standards. To avoid confusion they might contain the effects of requisites that provide a worker similar entitlements as described in the State employment standards. QUESTION TWO The Fair work Act 2009 integrates universal protection necessities under unfair dismissal and liberty of alliance. These provisions have also been included in the work choices legislations. The fair work Act contains re-enacted unlawful termination provisions of work choices[8]. Nevertheless, the Fair work Act stipulates that an individual may not submit an application for assistance against an unlawful dismissal if they are also entitled to dispute the termination under the universal safety provisions. The universal protection provisions of the Fair Work Act give defense against unfavorable action because an individual has a workplace right. The proscription widens further than termination to encompass other types of unpleasant act. Such cases might include protecting an employee from acts by the boss where the boss harms the worker in his or her work, adjusts his or her location to the intolerance of the employee or show favoritisms against the employee. Defense in opposition to adverse action also involve prohibition of unpleasant acts taken by the boss against potential employee, a principal against an autonomy outworker, an employee against employer, an autonomous outworker against a principal and an industrial union against an individual. Any individual who possess a work place privilege is that unrestricted to the advantage of, or have a function or accountability under a law or workplace instrument. These privileges are bound for conditions where a worker is dismissed preceding a request to be given payments in relation to the award entitlements or where a worker is needed to perform an overtime work or put in excessive pressure to obtain the desired outcomes or abide with inappropriate regulations. The federal workplace Relations Act identifies unfair dismissal under two prime conditions; termination was inconsiderate, unjust or perverse. To file for claims against unjust dismissal the employee must be operating below the Federal award/ industrial agreement or earning below a particular income. Protection is given to employees against discriminatory grounds for unfair dismissal for rationales concerning as to whether the employee were notified of that reason. Remedies for unfair dismissal Under the common law, damages equivalent to pay for proper notice period and under statute restoration, re-employment or monetary reparation. The statutory regulation of work place covers major areas such as rights to work leaves, compensation schemes for workers, schemes related to occupational health and safety and mandatory[9]superannuation offerings. It also entails equal opportunity legislation. The employees covered in the unfair dismissal laws are those who fall under the national work place relations system from the following locations[10]: v Victoria and the Northern Territory or Australian Capital Territory v Workers hired by private firms in New South Wales, Queensland, South Australia or Tasmania. v Workers working under the local government in Tasmania v Workers working under a constitutional corporation in Western Australia v Those working in the commonwealth or commonwealth authority v Workers in waterside or marine time workers in overseas transactions. Reinstatement The employee is reinstated through reappointment to the position he or she was before the dismissal. The person may also be appointed in another position on terms and situations no less favorable than which he or she was before the dismissal. Under this claim an Order to maintain continuity may be awarded by the Fair work Act which may require maintaining the continuity of the person’s employment subject to the person’s period of continuous service with the employer. Moreover, an order to restore lost pay may be issued under the subsection (1) of the Act which considers suitable to cause the boss to pay to the person a mount for the compensation lost or likely to have been lost by the individual through the dismissal. In estimating the amount for the objective of an order under subsection (3) the Act takes into consideration the amount of any compensation earned by the individual from employment during the time period between the dismissal and making an order for the reinstatement. The amounts of any recompense appropriately to be likely earned by the person during the time between making of the order for reinstatement and actual reinstatement[11]. Compensation The order is issued according to the time of dismissal’s equivalent pay in relation to reinstatement. It is determined under the following conditions: incase the effect of the order on the viability of the employers’ business. The person’s length of service with the employer, The remuneration that the individual would have gotten if he or she had not been dismissed, the person’s efforts to mitigate loss suffered by the individual due to dismissal, the amount of any income likely to be so earned during the time of compensation and actual compensation. Misconduct reduces the amount if it is satisfied that misconduct of a person contributed to the decision by employer to discharge the individual of his or her duties (Bhandari, 2003). The Fair work Act might reduce the amount of compensation on the account of misconduct. Consequently, shock and distress are disregarded as the amount ordered by Fair work Act to be given to the employee under subsection(1) must not be inclusive of a component by way for shock, distress or mortification or other equivalent harm caused to the individual by manner of his or her dismissal. The total amount compensated includes the total amount of remuneration received by the individual or to which the individual was entitled for any duration of working with the boss during 26 weeks immediately before the dismissal. However, if the worker has to go without pay or without full pay, regardless of being employed during any part of that duration, the amount of compensation perceived to have been received by the worker for the duration of leave in respect with the regulations is awarded to him[12]. QUESTION FOUR a) The parties and their bargaining representatives must fulfill the good faith bargaining necessity under the Fair work Act inclusive of: reasonable attendance and participation in meetings; disclosure of all appropriate facts in a timely conduct; providing authentic deliberation to the suggestions made by other bargaining agents and motives for any reaction to those suggestions; not conducting in a capricious or unfair way that undermines freedom of connection or combined negotiating and recognizing and bargaining with the other negotiating agents for the agreement[13]. Before the employees engage in industrial action for a proposed enterprise agreement the negotiating agent of an employee who will be covered by the accord must provide a notice in written form of the action to the employer of the worker. This is done through application made from Fair Work Australia to be provided a protected action ballot order. The appliance must have inclusion of the group of workers to be balloted and the kind of problems to be included. A duplicate of the request must be given to the employer and the suggested ballot representative. The period of the notice must be at least three working days or a period specified fit the purpose of the employee claim (Thompson 2003). A notice of must not be given until after the results of the protected action ballot for the employee aver action has been confirmed. The negotiating agent of an employee covered by the accord must then give the written notice of the action to the employer. The employer must give a written notice of the action to each negotiating agent of the employee who is covered by the accord and take all the appropriate steps to alert the employees who are covered by the accord of the action before he engages in employer response action. The notice must then give details of the nature of action and the day of effecting the action. Fair work Australia will eventually make a consideration on the application if all the requirements have been fulfilled. Before the industrial action takes place a written notice must be handed to the boss who is then given three days to react to it. Failure to, implies the industrial action has to move on[14]. b) If the proposed action is not protected then it will not have immunity provision as the actions might lead to personal injury of the participants in the action. There will also be reckless destruction or damage to property or illegal use or taking of property. This may lead to action of defamation being brought against the participants in relation to the occurrence in the course of industrial action. Besides, the employer may refuse to make the required payments to the employees in relation to the period of the action. Furthermore, the employer’s reaction action might affect the continuity of employment in such away that the employees who are not covered by the accord will suffer as the regulations prescribe. The federal courts may also consider it necessary to stop the remedy or effects of the contravention. In addition the Fair work Act might deem it necessary to stop the industrial action if it is not protected. There are certain payments that are normally made on industrial actions. These payments might not be made if the industrial action is protected. The payments include; payments relating to a case where the total period of industrial action on that day is at least 4 hours. Payments in relation to a case where an overtime ban to which it applies unless, there was a request by the employer to work for the overtime duration. The employee may have refused to work for the overtime duration of which it was contravening with the obligations of the employee under the modern award, enterprise contract or employment contract. c) A protected industrial action is an employee claim action which is organized for the purpose of supporting claims in respect to the accord that are only about or reasonably believed to be a permitted subject. The proposed industrial action might be protected if it meets the common requirements set out for industrial action for a suggested enterprise accord. The enterprise accord must not be of a Greenfield concurrence or multi-enterprise accord. The industrial action will only be protected if the parties are trying to reach a genuine reason in the agreement and must abide with the orders that apply to them agreedduring the negotiating for the accord. The employee claim must be organized and covered in the concurrence by the agent of an employee who is also covered by the accord[15]. The employees must also be included in groups of employees specified in a protected ballot order for the industrial action. For the industrial action to be protected it must also meet the universal requirements set out in subdivision B of the Act and the additional requirements set out in the same section. The industrial action must not be in defense or support of unlawful terms in the accord. The industrial action must not be part and parcel of pattern bargaining in relation to the concurrence. If the industrial action is being organized by the negotiating agent it must not relate to a demarcation dispute. It must not be serving an order in respect to Division 6 terminating industrial action in connection to the concurrence. There should be no ministerial affirmation in respect to subsection 431(1) terminating industrial action in connection to the accord. Likewise, if there was a suspension order, notice of requirements after the suspension must be met. Finally for the industrial action to be protected discern of employee claim exploit must not be issued out not until the results of the ballot are confirmed[16]. QUESTION FIVE a) Jill can bring a claim for both unjust and wrongful dismissal due to forced resignation. However any amount collected under one may still nullify the same amount collected under another claim. Nevertheless this kind of action prevents the employee from receiving double compensation. Jill qualifies for the unjust dismissal because she had been employed to work full time for 5 years and that her job ended the previous day which is less than three months stipulated by the Act. Besides, her employment was to run for more than 1 year that is, 5 years as required by the law. The legal repercussions in forced resignation are similar to dismissal impact. In the decision of Western Excavating v. Sharp.[17][1978] ICR 221 Sharp, an employee whose contract included flexible time format wanted to have an afternoon off to participate in a game for his team in a cards contest. The foreman denied him the permission on the assertion that too much work was available to be completed. Sharp went against the foreman’s warning and he received a two week’s job termination notice. Sharp made an appeal to an in-house review which reduced the suspension to five days ˜deferment without pay. When he went to the company’s welfare fund for his holiday pay due to his financial impairment, he was also denied the privilege. He then went to his manger to demand his holiday leave on a claim that the circumstances were forcing him to leave. He later on sought compensation from industrial tribunal which saw the employer’s conduct inappropriate hence they held that Sharp had been dismissed. The court that originally took the case, maintained the decision of the industrial tribunal. An appeal was launched by the employer to the High court of justice. In illuminating the law of constructive dismissal the court held that to prompt the principle, the employer must act according to the conduct inconsistent with prolongation of the contract of employment and hence lapse the employment contract. The company had no responsibility to give financial help and that it had not taken any further steps which could be termed as refutation of contract. The employee himself terminated the contract Moreover, Jill can sue for undue influence or pressure as the manager threatened her with the job loss incase she did not resign by herself[18]. In way or another she was to lose the job and she opted to resign. Under section 344 of the Act she can sue for compensation under a civil remedy provision part 4-1. Therefore on the above foundation Jill can take the employer to industrial court where an order may be issued according to the time of dismissal’s equivalent pay in relation to reinstatement. It is determined under the following conditions: The effect of the order on the viability of the employers’ business. The Jill’s length of service with the employer, The remuneration that Jill would have gotten if she had not been dismissed, Jill’s efforts to mitigate loss she suffered due to forced dismissal, the amount of any income likely to be so earned during the time of compensation and actual compensation. The total amount compensated includes the total amount of remuneration received by Jill or to which Jill was entitled for any duration of working with the boss during 26 weeks immediately before the forced resignation. However, if Jill has to go without pay or without full pay, regardless of being employed during any part of that 5 year duration, the amount of compensation perceived to have been received by her for the duration of leave in respect with the regulations is awarded to her (Pickering 2010). QUESTION 5B) The prime strength of compensation being made on Jill is that she does not leave the employer to gain double award. This is because due to coerced resignation the employer will have gained by disposing her off and at the same time not paying for his actions. The employer will be in apposition to hire another competent worker who meets the prescribed conditions of the company that is, team player. This leaves Jill without any job at hand or reference for any job to sustain her. Besides, by using industrial tribunal, she stands a chance of being given compensation in relation to the time she had worked and loss of income. However, the company may prove her inefficiency and her inability to meet the standards of the firm which eventually reduces the amount of compensation to be granted. This may be determined by Fair work Act if it will be proved beyond doubt that there Jill carried out her duties with complete misconduct by refusing to be a team player then the amount to be reduced will be determined in relation to the type of business in operation[19]. Besides, Jill will incur costs related to litigation which will cancel out the compensation awarded to her (Pickering 2010). Bibliography Australian commonwealth Constitutional Law Bhandari, T, Work effectively in a business environment, Software Publications, Sydney 2003 Developing business skills, Level 2 activity book, Aspire training and consulting, Melbourne 2002 Fair Work Act 2009 Federal awards, 2010,http://www.workplaceauthority.gov.au/ Henwood, B, Organize and complete daily work activities, Software Publications, Sydney, 2002 Harvey, S, Participate in workplace safety procedures, Software Publications, Sydney 2003 Michael Pickering, Employment Law “ Unfair dismissals under the Fair Work Act “ Remedies and Entitlements 2010 NSW department of industrial relations, 2010, Thompson, S, Communicate in the workplace, Software Publications, Sydney 2002 [1] Fair work Act 2009 [2]Developing business skills, Level 2 activity book, Aspire training and consulting,2002 [3] Interaction with state and territory laws p. 48-51 of Fair work Act 2009 [4] Part 1-3 division 2 of the Fair Work Act 2009 p. 48-52 [5] Part 1-3 division 2 of the Fair Work Act 2009 p. 48-52 [6] Federal awards 2010 [7]Section 2 of the Fair work Act [8]Part 4-6 of the Fair work Act 2009 [9] Division 2 Protection from unfair dismissal Fair work Act p. 357 [10]Michael Pickering, Employment Law “ Unfair dismissals under the Fair Work Act “ Remedies and Entitlements 2010 [11] Division 4 subsection 391 of the Fair work Act 2009 P. 362 [12]Division 4 Remedies for unfair dismissal, Fair work Act 2009 P. 364 [13]Thompson, S, Communicate in the workplace, Software Publications, Sydney 2002 [14]Division 2 protected industrial action p. 373 Fair work Act [15]Subdivision B”Common requirements for industrial action to be protected industrial action P. 378 of the4 Act [16]NSW department of industrial relations, 2010 [17]Western Excavating v. Sharp[1978] ICR 221 [18] Unfair dismissal P.355-362 of the Fair work Act [19] Remedies for unfair dismissal p. 362 of the Fair work Act Order now