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Fair Work: Scenarios With Legal Advice Research Paper

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Updated: May 4th, 2022

Scenario

In the world of business and employment, there are several problems that occur on a day-to-day basis. Some of the problems related to employment and work relations are governed by employment laws and other agreements. In the case presented to us by Howard through his representation of the union, several legal issues are raised. In this scenario, we witness that Howard is representing grievances and employee issues for Big Bang Accountants employees. The firm has been handling employee issues in an improper manner and as a result, Howard has been called in to solve the issue. In this case, the company wants to prohibit leave during peak periods. This scenario provides us with an opportunity of making use of Fair Work 2009 to solve these issues. The first question we ask ourselves is if the law allows for the employees working for Big Bang Accountants to be treated as they are being treated. As a result, the anticipated decision by Big Bang Accountants to deny any kind of leave to its employees during the peak period goes against the provisions of Fair Act Work.

Moreover, we ask ourselves the question of whether issues between the employees and the lawyers can be resolved using the Fair Work Act of 2009. This law was enacted to protect and safeguard employers and employees on issues concerning their work relations. The refusal by Big Bang Accountants to allow for leave during peak period contravenes the Fair Work Act of 2009. Under section 44 of the Act, an employer cannot contravene the National Employment Standards. Division 6 of the Fair Work Act guides on the amount of leave that an individual can take at any period of time1. According to section 87 clause 1 of the act, an employee is entitled to leave an annual leave whereby the employee can take a leave up to a period of 4 weeks2. As a result, Howard is advised to take action against Big Bang Accountants on the issue of employee leave. In this case, as a barrister I am confident that the employees will win the suit against Big Bang Accountants.

In the other scenario concerning salaries and salary increments, we also have to make use of the Fair Work Act (FWA). The FWA has provisions that allow for bargaining between employees and employers. These agreements are useful in coming up with long and binding agreements between both parties. Part 2-4 of the FWA under division 8, the law allows for enterprise agreements to be made between employers and employees. These agreements will look into issues such as salary increments or other types of agreements. Under this provision the agent appointed to act on behalf of stakeholders will look into good faith agreements. Using this provision, Howard is barred by section 228(2), whereby he cannot make concessions during the bargaining process. Moreover, an agent appointed to act on behalf of others cannot reach or agree on certain terms that are not part of the agreement. Consequently, in part 2-4 under division 9 the law gives authorization for enterprise agreements to be made between employers and employees. Under this provision, the representative of the employees is supposed to make an application concerning an agreement for better pay3. Section 243 of the FWA guides on the procedure of making claims and ways of ensuring that employees are compensated for the work they undertake at a specific period of time. As a result, making use of these provisions allow Howard and to negotiate on behalf of the employees at Big Bang Accountants.

In the above scenario, it would be prudent for Howard as the representative of the employees to file a notice with the Fair Work Authority concerning the possibility of an enterprise agreement. Making use of the provisions contained in the FWA act, under sections 243 and 228, Howard can arrange for an enterprise agreement. In this case, Howard is advised not to bargain for wage increment based on the premise of relenting on work leave4. This is because work leave is already protected by the provisions of the FWA. Moreover, the employer cannot amend or make changes to the working periods and terms. This is because section 233 of the FWA calls for flexible working hours and section 235 requires for consultation between both parties as it pertains to enterprise agreements5. Therefore, Howard should just negotiate for salary increment without ceding ground to demands made by Big Bang Accountants.

In this scenario we look at the case of Sheldon who is a developer working part time for Big Bang Accountants. He has been employed to work as a help desk but during his part time, he undertakes work for different people at the side. During his past time, he has been developing apps and software for sale to different people. He uses his profession to make money and his working arrangement works perfectly for him. However, recently there were problems concerning his work for Big Bang Accountants and this has led to a stalemate concerning his employment terms. When we carefully asses the work undertaken by Sheldon at Big Bang Accountants, we come to understand that he is on contract. Therefore, we can conclude that Sheldon is a contract employee and his working terms should be treated as contractual. In this scenario, we have to apply the multiple-factor test to determine the rights, obligations and duties of the employer and the employees. Therefore, we ask ourselves questions such as does the employer have a detailed and worked out plan on how duties and work is going to be undertaken at the workplace6. If the employee is fully integrated to the employer’s organization or is his/her duties clearly spelt out in the contract. These questions are pertinent and in our case, we come to the conclusion that Sheldon was indeed a part time worker. His arrangement with his employer was based on a certain period in this case, a salary period. Therefore, we can raise these legal issues in relation to Sheldon’s working terms.

In the process of determining the multiple-test factor, we have to ask ourselves questions such as does the employee have control on the working hours of the employee. Alternatively, we could also ask if the employer sees the need to deduct income tax on the employee wages. Sheldon’s relation to his employer amounts to a special working arrangement. He could be regarded as an outworker or a casual since; he does not pay income taxes on his income. The type of contract that Sheldon is under at Big Bang can be defined as ongoing whereby, he is not a full-time employee but is entitled to work. As a result of the legal issues raised by Sheldon, as a legal representative, we have to look at section 53B of the FWA. Under this provision, an employer cannot deceive an employee by coming up with unfair terms of employment. Deception amounts to breach of the provisions of the FWA Act and this is punishable by law. This was witnessed in the case of Morton v Interpro Australia (2009), whereby the employer was reprimanded for deceiving the employee. As a legal representative for the union, I would advise the union representative to make complaints concerning the agreements between the Big Bang Accountants and Sheldon7. For employment to commence, it is imperative that a contract is drawn between the employer and the employee.

In the case of Big Bang Accountants and Sheldon, an employment contract has to have the intentions of creating legal relations. The terms of a contract have to clear and concise and thus the agreement between Sheldon and Big Bang Accountants. As a result, Sheldon should feel aggrieved by the decision made by Big Bang Accountants in taking and owning patents owned by him. The work that Sheldon was undertaking at the side is personal work and he is not under obligation to answer to his employer8. In his argument concerning his employment, Sheldon could argue that the work he undertook for Big Bang Accountants had express terms and therefore, the court should be involved in arbitrating or solving this issue. As a result, Sheldon has several remedies of solving this issue through use of contractual breach terms. According to employment laws, an individual who suffers as a result of breach of contract, he/she has the right to take a common law action. In the case of Sheldon, I urge the union representatives to make a countersuit against the actions of Big Bang Accountants. In this case, the court might rule in favor of Sheldon and issue an injunction restricting Big Bang Accountants from breaching a contractual obligation. Big Bang Accountants have not rights to demand that the patents of the software made by Sheldon belong to the company9. This is because the contractual agreement that Big Bang Accountants had with Sheldon had express terms that Sheldon would work as a help desk operator. Therefore, the work or Apps developed by Sheldon in his free time cannot belong to the company.

In this scenario we witness an employee by the name of Penny has issues with the employment terms she signed with Big Bang Accountants. This deal could be referred to as an enterprise agreement. The circumstances surrounding this case look into the issue of flexible working hours and leave. Penny is a mother of two kids and her request for leave was turned down and this has affected her work. Moreover, she terms the move by her employer as illegal since it breaches the requirements that could lead to fair work. Moreover, she claims that the agreement she signed with Big Bang Accountants in relation to the demands by her employer amounts to a breach of contract. Penny has also been threatened with demotion if she continues to report the conduct of her bosses at Big Bang Accountants to the Victorian Equal Opportunity and Human Rights Commission10. This threat amounts to intimidation and unfairness on the part of the employee. Provisions of the fair work act can be used in dealing with this situation since Penny has a legally binding agreement with Big Bang Accountants. Annual leave is protected by the provisions of the Fair Work Act and therefore, Penny has the right to fair work treatment. The agreement that Penny had with her employer can be termed as an enterprise agreement between the employer and the employee. The two legal issues in this scenario are if the employer has the right to get flexible working hours. The other issue is the rights and compliance instruments available for employees at work.

The conduct of Big Bang Accountants regarding the refusal of giving leave to its employees amountsa to breach of the provisions of the Fair Work Act. Under section 203 of the Fair Work Act, we witness that the law requires employees to work under flexible working hours. Moreover, employees are entitled to annual leave and other types of leave at specific times of the year. The actions of Big Bang Accountants on denying Penny from working during the peak period in the year are irregular. This is because it violates the requirements of fair work that are stipulated in the National Employment Standards (NES). According to the NES, employees are entitled to around 10 days of personal leave in a year and therefore, Penny should be given time to stay with her family. These terms are guided by the reasonability of the circumstance whereby the person requested for leave. In the case of Penny she was could have used her leave to spend time with her two children11. This is outlined in section 61(3) of the National Employment Standards which specifies reasonable grounds for seeking leave.

Flexible working hours are protected by the law and in some instances; the employer has the right to refuse to grant leave based on reasonable business grounds. However, the employer has to provide a written response to the employee or make use of an enterprise agreement. Enterprise agreements as provided by part 2-4 of the FWA, Penny and Big Bang Accountants could come to an amicable agreement that works for both parties. However, Penny has to agree with concessions reached through such arrangements. As to regards of Penny’s actions of reporting her employer to Big Bang Accountants, we come to know that she has the right to report non-compliance to the law by her employers. In this case, the FWA act gives powers to inspectors appointed by the Fair Work Ombudsman to investigate firms or organizations that violate the rights or workers in any organization12. Therefore, under section 708-712, Penny could report her supervisor for threatening her and seek legal redress from the courts. The Fair Work Ombudsman office has the right to investigate breaches of the law by different organizations. As a result, Penny should rely on these provisions to seek redress in the courts. Using the provisions of the FWA act, I would advice Penny to seek legal redress in solving this issue at the courts.

Laws have been enacted to work out some problems or issues that might bring problems to the society. One such law is the Fair Work Act of 2009. This law was enacted to solve problems that employees and employers face in the workplace. For any law to be effective, it is supposed to administered, compliance and enforcement. The Fair Work Act is a law that is a requisite for all employers and employees to implement during their undertakings. The Fair Work Act in Australia has assisted a lot people in launching claims against their employers. The enactment of the law has been done by different organs that have been recognized by the law. Several organs are used in the process of undertaking law including the courts, trade unions or employee associations and industrial arbitration powers. For instance, in the state of Victoria, the government has made it a requirement for employers to enact the Fair Work Act. This is with the exception of senior government officials and judicial officers13. Other laws are used to enrich the FWA in the process of implementing the law. The Fair Work Act is quite a huge in the content it covers in relation to work, employees and employers. As a result, it is used as the number one source of law in Australia when it comes to employment issues. This is witnessed by the adoption of the law in the state of Australia. Moreover, the FWA contains provisions which are flexible when it comes to the issue of settling disputes.

Some of the provisions that allow for dispute resolution look at the topics of FWA awards and agreements. These provisions are generally tailored to ensure that employees and employers settle their disputes amicably. That is why there is this law recognizes the importance of enterprise agreements in solving major issues. In other ways, if the disputes cannot be solved using an enterprise agreement, then such a dispute would be solved through the use of an industrial action. This industrial action acts as a tribunal and it makes use of its powers to ensure both parties come to negotiating table. The FWA act although in some cases it has been challenges on its mandate to take certain actions in relation to arbitration or interventions. For instance, in the case of Boilmakers (1956), the High Court found the arbitration mechanism to be unconstitutional in awarding claims. This separation of powers is an interesting phenomenon in relation to the implementation and adoption of the FWA Act. The Fair Work Agency of Australia has powers to re-instate or compensate an employee who has been unfairly let go or dismissed. These powers and other provisions contained in the FWA Act ensure that negotiations can be undertaken between employers and employees. This was happened in the case of CFMEU v AIRC (2001), whereby the court ruled that arbitration had no judicial powers to but it was only merely excising their authority. There are several mechanisms of settling disputes as outlined in part 6-2 of the FWA Act and these are used in coming up with concrete dispute resolution mechanisms. Enterprise agreements and settling of awards and disputes occur under sections 186(6) and 146 of the FWA Act. These sections allow for disputes concerning payments to be settled amicably14.

The FWA Act is quite important in the process of settling disputes especially when it comes to compliance. Without proper and agreed legislation, work regulations and relations between employees and employers would be impossible. As a result, the FWA Act in part 3-6 calls for records to be kept on all employees in an organization. Therefore, compliance aids in ensuring proper work relations are maintained between the employer and the employees. No compliance to the provisions of the FWA Act could be to heavy punitive measures such as fines or penalties. The enforcement of the law creates an atmosphere where the employer and employee can come together to negotiate on different issues. For instance, under the FWA Act, employees are allowed to enter union groups and inspection of compliance of the law is covered under section 152 of the FWA Act. In the case of ABCC v McLoughlin, union officials are allowed to negotiate certain terms for their union members in the workplace15. This law ensures that employees rights are respected and followed are agreed in the employment contract. Enterprise agreements are best suited for handling disputes in the workplace since it is flexible in allowing either the employee of the employer to come up with a unique agreement. The FWA Act allows any person or body to settle disputes but using the national employee standards. As a result, if two or more parties can arbitrate on issues relating to work then the law recognizes their actions16. The agreements that come out these agreements are legally binding so long as they do not breach any lawful provisions. This was seen in the case of Boral Resources (NSW) Pty Ltd T/A Boral Concrete v Transport workers’ union of Australia during their arbitration agreements to solve certain issues.

References

Ault, H & Arnold, B, 2004, Australian master fair work guide, John Wiley and Sons, Austin.

Burrows, A, Ewan, S & Edelman, J, 2006, Cases and Materials on the Law of Employment, Penguin Books, Manchester.

Catanzariti, J & Byrnes M, 2009, Fair Work Act: A User-Friendly Guide, Penguin Publishers, Canberra.

Creighton, B & Stewart, A, 2010, Labour Law (5th ed), Prentice Hall, Canberra..

Donaghey, T, 2009, Enterprise Agreements and bargaining under the Fair Work Act 2009 (Cth), Routledge, Sydney.

Downey, N, 2002, ‘Deciding Employment Issues using different Regulations and Laws, Vanderbilt Journal of Transnational Law, vol. 35 no.1, pp.75.

Hor, J & Keats, L, 2009, Australian Fair Work Act: With Regulations and Rules. Cengage Learning, Sydney.

Johnstone, R, Bluff, L & Clayton, A, 2012, Work Health and Safety Law and Policy (3rd Ed.), Allen & Unwin, Melbourne.

Pittard, M & Naughton R, 2011, Australian Labour Law (5th ed), Cengage Learning, Adelaide.

Rees, N, Rice, S & Lindsay, K, 2008, Australian Anti-Discrimination Law, Cengage Learning, Adelaide.

Ronalds, C, 2007, Discrimination Law and Practice (3rd ed.), Jones & Bartlett Learning, Sydney.

Sappideen, C, O’Grady, P, Riley J & Warburton, G, 2011, Macken’s Law of Employment, Routledge, Sydney.

Stewart, A, 2011, Stewart’s Guide to Employment Law, Prentice-Hall, London.

Thornton, M, 1991, The Liberal Promise: Anti-Discrimination in Australia, Springer, Sydney.

Wilson, R & Fulmer, T, 2007, ‘Solving Work Disputes Using the Fair Work Act’, The Australian Journal of Law, vol. 53 no.1, pp.54.

Footnotes

  1. Johnstone, R, Bluff, L & Clayton, A, 2012, Work Health and Safety Law and Policy (3rd Ed.), Allen & Unwin, Melbourne.
  2. Burrows, A, Ewan, S & Edelman, J, 2006, Cases and Materials on the Law of Employment, Penguin Books, Manchester.
  3. Downey, N, 2002, ‘Deciding Employment Issues using different Regulations and Laws, Vanderbilt Journal of Transnational Law, vol. 35 no.1, pp.75.
  4. Thornton, M, 1991, The Liberal Promise: Anti-Discrimination in Australia, Springer, Sydney.
  5. Ault, H & Arnold, B, 2004, Australian master fair work guide, John Wiley and Sons, Austin.
  6. Catanzariti, J & Byrnes M, 2009, Fair Work Act: A User-Friendly Guide, Penguin Publishers, Canberra.
  7. Sappideen, C, O’Grady, P, Riley J & Warburton, G, 2011, Macken’s Law of Employment, Routledge, Sydney.
  8. Donaghey, T, 2009, Enterprise Agreements and bargaining under the Fair Work Act 2009 (Cth), Routledge, Sydney.
  9. Ault, H & Arnold, B, 2004, Australian master fair work guide, John Wiley and Sons, Austin.
  10. Ibid.
  11. Stewart, A, 2011, Stewart’s Guide to Employment Law, Prentice-Hall, London.
  12. Pittard, M & Naughton R, 2011, Australian Labour Law (5th ed), Cengage Learning, Adelaide.
  13. Hor, J & Keats, L, 2009, Australian Fair Work Act: With Regulations and Rules. Cengage Learning, Sydney.
  14. Wilson, R & Fulmer, T, 2007, ‘Solving Work Disputes Using the Fair Work Act’, The Australian Journal of Law, vol. 53 no.1, pp.54.
  15. Creighton, B & Stewart, A, 2010, Labour Law (5th ed), Prentice Hall, Canberra.
  16. Ronalds, C, 2007, Discrimination Law and Practice (3rd ed.), Jones & Bartlett Learning, Sydney.
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