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The History of Australian Labor Law

1. In relation to modern awards and the current minimum wage, Australian labor law has not changed that much since Justice Higgins determined in the Sunshine Harvester decision that an unskilled worker deserved a living wage of 42 shillings per week. Do you agree or disagree with this statement? Why or why not?

2. The seminal High Court case of Commonwealth Bank of Australia v Barker [2014] HCA 32 settled the law on whether there is a term of mutual trust and confidence to be implied by law in all employment contracts. How has this case impacted upon the employment relationship between an employer and employee? Research this case and discuss your opinion.

3. In relation to discrimination law, do you think that the current list of protected attributes is suitably comprehensive, goes too far, or does not go far enough? Why or why not? In your answer you may also want to consider legal exemptions to discriminatory conduct

4. Victoria was wise to not adopt the national work, health and safety laws’. Do you agree or disagree with this statement? Why or why not?

5. Discuss a case which has been reported in the media which relates to termination, redundancy or unfair dismissal. What were the facts of the case and what was the outcome? In your discussion, attempt to apply the applicable law which applies.

6. Elizabeth Broderick, the current Sex Discrimination Commissioner with the Australian Human Rights Commission has stated that ‘Domestic and family violence is a workplace issue. Having domestic/family violence as a new protected attribute in anti-discrimination legislation can provide another avenue of protection for victims and survivors who experience discrimination, as well as lead to improved measures for addressing domestic/family violence.’ Do you agree that.

The judgement in Ex parte H.V. McKay (1907) 2 CAR 1 it was held by the Commonwealth Court of Conciliation and Arbitration that there should be a statutorily defined national minimum wage rate. This case formed the basis of employment legislations relating to the minimum wages and the position was further consolidated in the case of R v Barger [1908] HCA 43, (1908) 6 CLR 41. These prescriptions of these judgements were codified and incorporated into the Fair Work Act, 2009 (Stewart 2013). This act now governs minimum wages in the Australian commonwealth. In Ex parte H.V. McKay (1907) 2 CAR 1 the court held that unskilled workers were entitled to a wage rate that would allow them to support themselves and a family with a minimum standard of living. Unskilled workers on the other hand would be entitled to more remuneration due to the skills they bring to the occupation. The current position of minimum wages in Australia provides for a uniform rate of minimum wages. The current minimum wage rate for 2018 is $672.70 per week which is a $15 rise from the previous rate (Blanpain and Bisom-Rapp 2014). Judging by the standard of living which can be provided by the current wage rate it would support a comfortable standard of living which exceeds the prescriptions of the judgment in Ex parte H.V. McKay (Walsh 2015). Thus the position of law relating to minimum wages has been amended to provide a higher standard of living for the workforce.

Minimum Wage and Unskilled Workers

The case of Commonwealth Bank of Australia v Barker [2014] HCA 32 held that there was no implied contractual term relating to mutual trust and confidence in terms of employment contracts (Selwyn and Emir 2014). This case also spoke about remedies available to employees in case of unfair dismissal. Common law does not provide for any such remedy as it does not require any reason to be attached to the dismissal of an employee. This was decided in the judgment in Ridge v Baldwin [1963] UKHL 2 (Rudman 2013). The case thus established that in case of an employment contract there was no implied term which mandates that the promises and expectations contained in the Commonwealth bank’s policies were binding on the bank as an exclusionary term for the same was included in the HR manual which stated that these did not form a part of the bank’s employee contracts (Sargeant 2016). Thus it established that no remedy would lie in case of an aggrieved employee if the employment contract was not breached by the employer.

On a federal level the discrimination laws in Australia are primarily governed and regulated by the following legislations (Fishkin 2013):

  • Age Discrimination Act 2004
  • Disability Discrimination Act 1992
  • Australian Human Rights Commission Act 1986
  • Sex Discrimination Act 1984
  • Racial Discrimination Act 1975.

The Australian Human Rights Commission Act, 1986 provides for the establishment of the Australian Human Rights Commission. This regulatory authority governs and regulates discriminatory behavior especially in the workplace. The other legislations sufficiently define and regulate discriminatory behavior and have specific provisions that sufficiently cover all discriminatory circumstances (Freedland et al. 2016). However these acts would not apply in cases where the disability, gender or age of the individual would prevent them from adequately discharging their duties as required by the employment contract. In such cases the employer would have the right to discriminate to the extent where such a discriminatory act pertains specifically to the ability to discharge the duties associated with a particular form of employment (Stewart et al. 2016). Thus the acts cover discriminations sufficiently and even provide remedies to employers in case the discrimination was required by the employment profile. To conclude, Australian discrimination covers its mandate sufficiently in light of the current scenario.

During John Howard’s term as Prime Minister the idea of nationally accepted laws which are harmonized was coined. It however took decades before such models could effectively be put in place as legislative mechanisms. In the present scenario Australian health and safety regulations prescribe 23 Codes of Practice which are incorporated into the framework of employment laws within the country. Victoria however has refrained from adopting these and thus has changed from a pioneer of effective safety legislations to a regressive system that does not adequately cover all requirements of workplace safety. This is due to more political reasons than legislative failures. However in such a case the implications that such a deviance would have on industrialization in Victoria are widely detrimental. The 7 Codes of Practice which Victoria chose of incorporate are based on legislations that have been repealed over a decade ago. The reliance on regulations prescribed in such dated documents would not adequately cover all the requirements of the present global scenario relating to employment law. Thus, in effect the parties to an employment contract would be subject to laws that have not been periodically amended to ensure that it meets the requirements of the present time.

Impact of Commonwealth Bank of Australia v Barker on Employment Contracts

 In the case of West v Holcim (Australia) Pty Ltd [2017] FWC 2346 the court held that when the employer had been negligent in observing safety requirements prescribed in legislations an employee cannot be terminated based on damages caused owing to the negligence of the employer (Stone and Arthurs 2013). In this case a hired laborer was tasked with handling equipment which he would need adequate training to handle. Additionally, supervision would be required for the same which was not provided by the employer. While operating the equipment the employee nearly injured another employee and refrained from sufficiently reporting the same. The employee was thus dismissed by the employer. However, when the dispute was brought to court the court found that the acts of the employer were negligent and thus did not adhere to basic standards of health and safety as prescribed by legislation. Thus, the court held that the act of dismissing the employee was illegal and unfair and the employer was guilty of unfair dismissal. Thus the court ordered the employer to reinstate the employee as his dismissal was not fair.

Elizabeth Broderick’s ideology of embodying domestic violence as a workplace problem is illogical and cannot be accepted as a valid legislative step. Domestic violence and family violence are issues relating to the household environment that the employee comes from though this may have an effect on the general demeanor of the employee it cannot be considered to be a part of his work life (Wright and Lansbury 2016). Thus, incorporating legislations relating to domestic violence into the framework of employment relationships cannot be considered as an ideal step in furtherance of employer-employee relationships. Thus, Elizabeth Brodericks recommendation cannot be legislatively brought into force. This thus means that it would not be viable to give legislative effect to a code which incorporates domestic and family violence as a part of employment contracts. To conclude, domestic and family backgrounds and professional ethics cannot be amalgamated into a unified legislation and the same will be detrimental to the framework of labor laws within the territorial jurisdiction of the Australian Commonwealth.

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.

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.

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