It has been legislation and not common law that has effectively advanced the interests of employees Essay

In the attempt to ensure fairness and the humane treatment of workers in an organization, both legislation and common laws have played a vital role. The term common law, as used in most cases, refers to the law that is expressed in decided judicial cases while legislation refers to the laws created by the country’s politicians.

Labor legislation is considered as one of the most contentious platforms on which the interests of employees and those of the employers are satisfactorily negotiated (Zack 2006, p.402). There is a heated debate however as to which of the two has played the biggest role in the effort to ensure that the interests of the workers are addressed and that there is serenity in the workplace.

However, such partisanship is not confined to the organizational environment or the workplace. It has also permeated other important institutions such as the civil society, the legal profession, media, and religious groups among others.

This paper aims at defending the argument that legislation has played a bigger part compared to common law in ensuring that the interests of workers are safeguarded in the organization.

When handling the subject of labor legislation, it is rather important to portray a decisive division between the “…laws that are binding only on organized labor and those that are apply to labor in general without regarding its organizational status” (Zack 2006, p.412).

“In most cases (but not necessarily all), organized labor in the 20^th century has enhanced the endorsement of legislation aimed at protecting all employees regardless of their organizational status” (Pierre, & Scarpetta 2006, p. 332).

For instance, it has played a vital role in the proposition, endorsement and defense of legislation aimed at improving the welfare of the public in Australia. These have included the social security, medical care, unemployment compensation, mine safety, health laws and so on (Robson 2003, p.312).

In recent years as opposed to what used to be the tradition, statutory labor laws are upheld when they come into conflict with the common laws. In the early years of the nineteenth century, common law was supreme. As a result, many employers took the advantage of courts to intimidate their workers.

For instance, acting upon the request of a given employer, a court was capable of issuing an injunction. During such time, common law “…held that those workers who went ahead to form trade unions and other such organizations that could champion for their rights were found guilty of unlawful conspiracies” (Martins 2009, p.258).

With the labor legislation being preferred to the common in most countries, workers rights are being protected and the workplace is steadily being transformed for the best.

The legislation that is attributed for the advancing interests of the individual workers is that which covers the workers needs in the following areas: unfair/ unlawful dismissal, child related employment, privacy, workplace relations, anti- discrimination in the workplace and contract law (Alexander et al. 2008, p.12).

According to Torrini (2005, p.661) “the centrality of the contract of employment is based on the fact that such a contract triggers the system”. This is mainly from the perspective of the federal awards and statutory agreements.

The federal awards are limited only to the settling and the prevention of industrial disputes between workers and employers. For instance, the major industrial statute in Australia is the Workplace Relations Act 1996 (Cth) (‘Workplace Relations Act’) which ascribes the common law meaning of ‘employee’ to the statutory equivalent.

Therefore, the federal award is constrained to the workers who are regarded as employees by the common law. Statutory individual agreements can I in this act can only be made between the employer and the employee. Such agreements should only deal with only the matters that are related to the employer- employee relationship (Zack 2006, p.411).

Key statutory entitlements that are supposed to protect the employees from unfair dismissal have succeeded for a long period in doing so than the common law. However, these entitlements are also restricted to employees. A worker is required to be an employee before they can be able to access the federal unfair dismissal scheme in Australia.

As a result, only such workers benefit from the contributions that employers make to the super-annum fund as an obligation (Piore 2006, p. 155). The obligation has however been expanded to include also those workers who work on contracts that are mainly for the labor of the worker (Piore 2006, p. 157).

Permanent employees or those whose contracts stretch beyond the period of a year have standard leave entitlements conferred on them as enforced under the legislation.

For instance in some Australian states such as South Wales and Victoria, the statutory minimums relating to annual and sick leaves for permanent employees are only cast in such terms. There is also the unpaid parental leave that is entitled under the Workplace Relations Act (Alexander et al 2008, p.59).

In most cases with regard to the disputes that result from unfair dismissal in the workplace, legislation has played a more significant role compared to common law (Kahn 2007, p.334). As a matter of fact, in most of the cases legislation or statutory has played the role of filling in the gaps in common law with regard to the disputes that emanate from unfair dismissal in the workplace.

For instance, common law in Australia exempted the small businesses from the unfair dismissal law up until 2009 when the New Fair Work regulation cancelled this exemption. Because of this, the small businesses were no longer exempted from the unfair dismissal law and employers who are in most cases the owners of such businesses are dealt with accordingly if found guilty of dismissing workers unfairly.

This means that before the inception of the Fair Work Regulations which has since then succeeded a lot in protecting workers from unfair dismissals and ensuring that they are compensated effectively, such workers were being dismissed unfairly even in the existence of common laws (Bauer et al. 2007, p. 810).

Statutory laws and or legislation have played a big role in ensuring that the hiring process in many countries is a fair one. In the absence of such legislation, workers found themselves being discriminated against and the deserving were denied the chance to gain meaningful employment even in the existence of common laws.

For instance, the Public service Act 1999 (the act) in Australia gives the Australian Public Service (APS) agency heads the responsibility of making the employment decisions that affect such agencies. The decisions that they make must therefore comply with the Act, the public Service Regulations 1999 (Alexander et al. 2008, p.54). Under this legislation, merit is the most fundamental element of employment.

The APS value that requires all the employment decisions to be based on merit is also complemented by the value requiring that all the eligible people have a reasonable opportunity to apply for the employment opportunities. As the act stipulates, merit is all about ensuring that the best person is given the job.

There is severe punishment faced by those who fail to adhere to the prerequisites of this act in the employment process. This legislation not only serves the best interests of the worker but also the best interest of the organization which benefits from the services of the best candidate for the given job (Pierre, & Scarpetta 2006, p. 331).

Therefore, in conclusion, it does not matter whether a given worker qualifies to be referred to as an ‘employee’ or not: labor legislations have played the biggest part in making sure that the interests of the worker in the workplace are upheld.

Legislations are regarded superior to the common law when it comes to the safeguarding of the workers interests because they have a bigger impact considering that the policy makers of the country (zack 2009, p.411) endorse them.

In matters relating to work relations, unfair dismissal disputes, child labor, leave and the compensation of workers, legislation has had the upper hand in championing for the rights and the best interests of the workers while at the same time ensuring that the employer is not intimidated.

Labor legislation aims at creating a meeting point between the employer and the employee in ensuring that human rights and fairness form a basis of understanding in such a relationship (Addison, & Teixeira 2003, p.96).

References

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Alexander, R, Lewer, J, & Gahan, P 2008, Understanding Australian Industrial Relations , Thomson Press, Sydney.

Bauer, T, Bender, S, & Bonin, H 2007, ‘Dismissal Protection and Worker Flows in Small Establishments’, Economica, vol. 74 no.1, pp. 804-821.

Kahn, L 2007, ‘The Impact of Employment Protection Mandates on Demographic Temporary Employment Patterns: International Microeconomic Evidence’, Economic Journal, vol. 117 no. 521, pp. 333-356.

Martins, P 2009, ‘Dismissals for Cause: The Difference That Just Eight Paragraphs Can make’, Journal of Labor Economics, vol. 27 no.2, pp. 257-279.

Pierre, G, & Scarpetta, S 2006, ‘Employment Protection: Do Firms’ Perceptions Match With Legislation?’, Economics Letters, vol. 90 no. 1, pp. 328-334.

Piore, M 1986, ‘Perspectives on Labor Market Flexibility’, Industrial Relations, vol. 25 no. 1, p. 146-166.

Robson, M 2003, ‘Does Stricter Employment Protection Legislation Promote Self-Employment’, Small Business Economics, vol. 21 no.1, pp. 309-319.

Torrini, R 2005. ‘Cross-Country Differences in Self-Employment Rates: The Role of Institutions’, Labor Economics, vol.12 no. 1, pp. 661-683.

Zack, A 2006, ‘Conciliation of Labor Court Disputes’, Comparative Labor Law and Policy Journal, vol. 26 no.1, pp. 401-420.