QUESTION
1. The words “trade union” is not found in the fair work legislation. Describe what a trade union is and identify its legal description in accordance with the relevant legislation. Further, in your answer identify the main piece of legislation which regulates trade union activity in Australia and explain its main characteristics.
2. Australia’s Constitution does not include a direct power to legislate with respect to workplace relations / industrial relations matters. As a consequence of this a number of the Constitutional powers in the Commonwealth Constitution were relied upon to enact the Fair Work Act 2009 (Cth). Answer the following questions:-
a. What is a national system employee and employer and why are they defined in this way?
b. Which Constitutional power was used to enact Part 2-2 (the National Employment Standards) of the Fair Work Act 2009 (Cth)? Does this enable coverage to all Australian employees ? If not why not and how does the Fair Work Act 2009 (Cth) extend these entitlements to other employees.
3. Voluntary workers are not governed by any legislative protections as they do not get paid. Is this statement correct? Explain
4. List and explain the types of implied terms that may be found in an employment contract.
5. Most employers have detailed policies and codes of conduct in place to manage their workforce. How can these policies form of the contract of employment and if so what may be the consequences? Explain by reference to case law.
6. List the National Employment Standards. In your answer you must cite the relevant sections of the Fair Work Act 2009 (Cth) which apply to each standard.
7. The list of National Employment Standards (NES) is not closed. Do some research to find out which standards were recently introduced.
8. Section 172(1)(a) of the Fair Work Act 2009 (Cth) provides that an enterprise agreement can only validly deal with “matters pertaining to the relations between each employer that will be covered by the agreement and its employees.” Brian a union official for a construction union who is a strong advocate of reducing carbon emissions by the industry as he is concerned about climate change. He wants to know if he can include a clause in the enterprise agreement which obliges employers to commit to zero emissions target by 2030. Advise Brian whether this will be lawful under 172(1)(a) of the Fair Work Act 2009 (Cth)
9. Lucy is the manager of a café in Brisbane. Over the last few months she has noticed significant short falls in the petty cash at the end of the day’s trade. She cannot work out whether one of the employees is stealing cash from the till. She believes the staff members know who it is but will not tell her. So she decides to take drastic action she tells each of the staff members that if the petty cash continues to be short she dock each staff member’s pay in accordance with the shortfall. Advise Lucy whether she can make these deductions. Explain to her the relevant process.
10. The duty of obedience is the foundation of the employment relationship as it relates to managerial power of the employee. Explain the major aspects of this duty in particular how the law limits its scope.
11. You are the Special Counsel, Employment and Workplace Relations Law at the city law firm, E & E. Your firm has been bidding to join the panel of lawyers for IQ Pty Ltd a software development and sales company which is at the “bleeding edge” of new ideas in the education sector. The IQ company has clients from the Higher Education sector, VET and private education providers. There is fierce competition in this area not only between the software development companies but also the educational providers themselves. The education providers want to market the absolute latest platforms for their courses and programs to attract the best students who will pay the highest fees. Confidentiality around software development and privacy around who has what under development amongst the clients is paramount to IQ’s reputation. Breaches of trust by employees have been identified by the IQ Board as a substantial business risk.
The Task
Your firm has been short listed to present to the Board on the duties of loyalty, confidentiality and privacy owed by employees and the measures available to protect the company’s intellectual property against misuse or theft by key software development and sales staff both during employment and post-employment. The Board will be judging your firm’s suitability for appointment to its panel of lawyers not only on the basis of your knowledge of the law but also your demonstrated ability to think strategically and apply the law to protect the company’s intellectual property and key trade secrets from walking out the door.
Guidelines- list and explain the major duties and the main principles which apply.
SOLUTION
Answer to Question no. 1. A trade union is an organisation that defends and advances the interests of its members by representing workers in a specific sector or profession.
The Fair Work Act 2009 (Cth.) in Australia contains the definition of a trade organisation in terms of the law. A "registered organisation" is an entity that has registered with the Fair Work Commission (FWC) as either an employer association or an employee association, according to Section 12 of the Act, consists of employees whose primary goal is to safeguard and advance those employees' interests is referred to as an "employee association." An organisation primarily made up of employers whose primary goal is to advance and safeguard its members' interests in employment matters is called an "employer association." In the Act, "union" and "employee association" are frequently used interchangeably.
The 2009 Act is the primary piece of legislation in Australia that governs trade union action. This Act regulates several areas of Australian employment legislation, including the control of unions and labour relations.
In terms of trade union activity, the Fair Work Act's[1] major features are as follows:
Answer to Question no. 2 a. Employees and employers are protected by the national workplace relations system are referred to as national system employees and employers in the Act. Except for those who are covered by state or territorial systems, most Australian workers and employers are covered by the national system as it determines which rules and regulations, such as the National Employment Standards (NES) and modern awards, pertain to them, the definition of a national system employee and employer is defined as it is.
[1] Fair Work Act 2009 (Cth.)
Answer to Question no. 2 b. The corporation's power, outlined in section 51(xx) of the Constitution, was utilised to implement Part 2-2, the National Employment Standards of the FWA. The Commonwealth Parliament can pass legislation on trade corporations, overseas corporations, and corporations established within the Commonwealth's borders.
Nevertheless, the authority of companies only applies to workers who work for corporations. This indicates that not all Australian employees are automatically subject to NES entitlements, a national workplace relations system component. The Fair Work Act offers provisions for modern awards and business agreements to extend these benefits to additional employees not covered by the corporation's power.
The Act specifies national system employees and employers and stipulates that personnel covered by a corporation's power are entitled to NES benefits, which are extended to other employees through current awards and enterprise agreements.
The Act allows for the formation of modern awards and enterprise agreements to expand the scope of NES entitlements to additional employees who are not protected by the businesses' power. The incorporation of NES rights and additional employment terms and conditions for employees not covered by the corporation's power can be provided for in both current awards and enterprise agreements.
The Fair Work Act does this by expanding the scope of the national workplace relations system to include employees not already covered by corporate power.
Answer to Question no. 3. According to Australian law. Volunteers are not deemed employees or independent contractors because they operate in a non-employment context.
Nonetheless, additional regulations governing workplace health and safety, anti-discrimination, and bullying and harassment are still in force to safeguard voluntary workers. For instance, the Work Health and Safety Act[2] and other state and national laws require companies, including those who hire volunteers, to guarantee the health and safety of employees and other people at work. The Australian Human Rights Commission Act and other anti-discrimination laws prohibit this discrimination against voluntary workers. These protected characteristics include age, race, sex, and disability.
[2] Work Health and Safety Act 2011 (Cth)
Moreover, voluntary workers could also be protected by insurance plans, such as public liability insurance, that forbid specific workplace risks and accidents. Some organisations that use volunteers might also have rules or codes of conduct outlining their obligations to volunteers, including how they should be treated and what assistance they should receive.
Answer to Question no. 4. The following categories of implicit terms have been recognised by the courts:
Implied by Fact - so obvious that it should go without saying and essential to the contract's efficiency. Regarding implied terms in employment contracts, a major case in Australian contract law.
The notion that employment contracts may include obligations that are not expressly mentioned but are implied based on the conduct of the parties and the nature of their relationship was established by the decision in Byrne v. Australian Airlines Ltd[3]. Employers and employees must be aware of any implied terms that might be present in their contracts even if they are not expressly stated, as a result of this.
Implied by tradition and use- An implied requirement must not conflict with the contract's specified terms and conditions. It must also be required for the contract to function properly.
Implied by law- The best examples of a set of default standards that courts have evolved are to imply that an employee would be paid a reasonable rate when no rate has been specified and would be given a reasonable notice period if the contract does not have a defined termination date.
Answer to Question no. 5. To manage their employees, employers frequently have elaborate regulations and codes of behaviour in place. These guidelines may address disciplinary procedures, internet and email usage, workplace health and safety, and anti-discrimination and harassment. These rules could occasionally be included in the employer and employee employment agreement.
[3] Byrne v. Australian Airlines Ltd. (1995) 185 CLR 410
The case of Stevens v. Brodribb Sawmilling Co Pty Ltd[4] exemplifies the effects of including policies in employment contracts. In this instance, the employer's policy classed the workers as independent contractors instead of employees, denying them access to several employment benefits. The court concluded that the policy did not accurately reflect the circumstances because the employment relationship was between an employer and an employee. The workers, therefore, qualified for employment benefits like workers' compensation.
The case of Rose v. Telstra Corporation Ltd.[5] is another example of how policies in employment contracts can have negative effects. In this instance, the employer had a policy requiring staff to protect customer information's confidentiality. An employee was fired for violating this policy by giving consumer information to a third party. The employment contract included the policy, so the court determined that the firing was appropriate.
Employers must ensure that their policies are straightforward and clear and are legally included in the contract. Any violations of these rules could result in legal repercussions, including possible contract breach of responsibility.
Answer to Question no. 6. All national system employees must receive the ten minimum employment entitlements known as the National Employment Standards. The 2009's Act under Part 2-2 lays forth these requirements. The ten guidelines are:
[4] Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
[5] Rose v. Telstra Corporation Ltd. (1998) 82 IR 222
Answer to Question no. 7. The Fair Work Amendment Bill 2022[6], which the Federal Government proposed to amend the FWA by adding a non-accumulating entitlement to 10 days paid family and domestic violence leave each year, into the NES, for all employees, in a report on July 28, 2022. It also included casual and part-time employees. The new compensated entitlement to family and domestic violence has begun to take effect for all non-small business employers to allow time for payroll and other required adjustments (employers with 15 or more employees). Employers must give all casual workers a Casual Employment Information Statement, which includes information regarding the right to request casual conversion under the new section 66B. Also, employers must give qualified workers a formal offer of casual conversion, which they have 21 days to accept or reject. If the employee accepts the offer, their work status will shift from zero hours per week to full- or part-time at the beginning of the following pay period.
The NES amendment gives casual workers more job security by enabling them to transition to permanent employment after a set amount of service.
Answer to Question no. 8. An enterprise agreement can only address issues relating to the relationships between the employers covered by the agreement and their employees, according to section 172(1)(a) of the Act 2009. While it might be a big deal, committing to a zero emissions target by 2030 does not seem to do with the relationships between employers and their employees.
[6] Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022
Because it goes beyond what is allowed in an enterprise agreement, it is unlikely that such a clause would be regarded as legal under section 172(1)(a) of the 2009 Act.
Answer to Question no. 9. Lucy is not authorised to take money out of her employees' pay checks in this instance to make up for the petty cash shortage. She should investigate the matter more to find out why there are deficits. She could also think about creating improved cash-handling processes to deter theft.
Lucy might be allowed to remove money from an employee's wages in some situations if she thinks they have engaged in a wilful act of misbehaviour, such as robbing the cash register. Before imposing any deductions, she must adhere to a fair procedure and allow the employee to refute the accusations.
Depending on the situation, the processes involved in deducting money from an employee's pay can vary, but they are as follows:
Answer to Question no. 10. An essential component of the employment relationship is the responsibility of obedience, which calls for an employee to follow their employer's legal and reasonable instructions. To prevent exploitation and ensure that employers do not misuse it, the law establishes restrictions on the scope of this duty.
One of the most important requirements of the obligation of obedience is that it must be reasonable under the circumstances and not violate any laws or regulations. The ability of the person to follow instructions is another requirement. Employees cannot be required by their employer to engage in criminal activities or accomplish duties beyond their physical or mental capacity.
The implied responsibility of mutual trust and confidence, among other safeguards, limits the duty of obedience's application. According to this obligation, employers must treat their workers fairly and avoid actions that jeopardise or harm their working relationship. For instance, an employer cannot have employees undertake duties that endanger others or foster a hostile workplace.
Employees are also shielded from retaliation for asserting their rights at work or complaining about their working conditions. Employees cannot be disciplined by their company for voicing complaints or concerns.
Since the obligation to obey is a crucial component of the employment relationship, the law restricts its application to ensure that employers do not abuse it and that employees are protected from exploitation and unfair treatment.
Answer to Question no. 11. Employees' obligations to IQ IQ Pty Ltd in terms of loyalty, secrecy, and privacy are governed by the following key principles:
To guard the company's intellectual property and important trade secrets against misuse or theft the company could draft confidentiality agreements and compel the employees to sign a confidentiality agreement with non-disclosure clauses to forbid them from exposing sensitive information about the business. To guarantee that all staff members are aware of their responsibilities and instructed on the company's loyalty, confidentiality, and privacy standards. The company must also run background checks to ensure that no employees have a history of misusing or stealing intellectual property.