Legislation for Safeguarding Employee Interest in Australia
Question:
Discuss about the Q & A on Labour Law for Workplace Relations Act.
In Australia, there are several legislations that are acting for protecting the interest of the employees and certain rules are mentioned which are required to be followed up by the employees as well as employers. Workplace Relations Act 1996 and Fair work Act 2009 are some of the examples of this legislation[1]. According to the Fair work Ombudsman, pay slip is an important thing and is required to be provided to every employee within a working day and that working day must be his or her pay day[2]. The rules of payslip are applied to those employees also who are on leave. There are two different forms of providing pay slips such as electronic form and hard copy. Certain rules are mentioned under the act regarding the formation of pay slip and the employers are bound to maintain the rules accordingly. However, there are certain provisions too which have empowered the employers to deduce certain amount from the employee’s pay. According to the Workplace Relations Act 1996, the deduction can be done by way of registered agreement[3]. It has also been stated under the Act that an employer can provide electronic payslips to the employees. It is the duty of the employers to see that every employee can get an access to the payslips on private basis. if an employer has failed to provide pay slip according to the rules, he or she will be held liable under the Fair Work Act 2009.
Under the Fair Work regulation and the Fair Work Act 2009, there are certain basic provisions which must be included under the pay slip of an employee. The provisions can be categorised as follows:
The name and ABN of the employer should be mentioned in the pay slips. There should be a provision where the name, date of payment and pay period of the employee should be mentioned. Further the gross amount of payment should be mentioned there. Provisions regarding the incentives rate, penalty provisions and entitlement paid sections are also to be included under the pay slips. In addition, there are certain mandatory provisions which will be provided if necessary[4]. The provisions are:
In case where the employee is working on hourly pay basis, the number of working hour and amount of payment must be mentioned under the slip. If the nature of work of the employee is based on annual rate of pay, the last day pay period rate must be mentioned in the slip. If any deduction has been made regarding the salary, it should also be mentioned in the pay slip. If in any case the employer is willing to make any superannuation contribution, the provisions must be specifically mentioned in the pay slip. In certain case, it has been observed that certain funds are being made to regulate the superannuation contribution by the employers[5]. In certain cases, it is mandatory to mention the name or number of the same in the payslip.
Provisions for Employee Payslip in Australia
In Australia, all the employees are selected according to the rules of National employment Standards and both the employees and the employers should have to maintain the rights and responsibilities mentioned under the Fair Work Act 2009[6]. However, it is the right of every employee to get all the rights and facilities mentioned under the Workplace Relation Act 1996. There are certain provisions regarding the record keeping and payslip of the new employees who are about to commence their employment under the name of the respective company. The name of the employees and the nature of his work must be mentioned in the payslip. The name and ABN of the employers are also required to be mentioned there. The date of recruitment must be mentioned in the payslip to understand the commencement of employment of that employee specifically. The gross and net payment of the employees should also be mentioned. Separate provisions for working hour, leave criteria, conditions for employment termination and superannuation contribution should be mentioned there. Certain entitlement rates are required to be mentioned in the payslip. A separate provision for the deduction section must be included under the payslip. Provisions relating to the tax application must also be mentioned in the payslip. However, payslip should be provided to the employees within one working day and the provisions of the payslip should be written as per the provision of Fair Work Regulation and Fair Work act 2009.
The provisions regarding the keeping the records of the employees are mandatory in nature. The record keeping provisions has been mentioned under the commonwealth workplace laws. It has been mentioned under the law that the record of the employee should be maintained for a period of seven years[7]. The provision for employee record is mandatory in nature and therefore, any employee can ask for maintenance of records. According to the rules, any records based on the time and wages of the employee must be readable, should be written in English language and Fair Work inspector can be accessed to all the information as they required. The record regarding the time and wage could not be changed unless there is any false or misleading statement has been recorded in that document. There is a particular time frame has been mentioned under the Fair Work Act 2009 where the name of the employer and employee should have to be mentioned and the pay period and the pay date must be mentioned accordingly[8]. The payment criteria should have consisted of two time schedule; one for the ordinary hours and the other for the overtime hours. The required pay period must be mentioned on weekly basis and the pay day should be mentioned specifically. Record can be kept for the termination of the employee too but in that cases, last working day of the workers are required to be mentioned in the record[9].
Mandatory Provisions in the Payslip
In Australia, record keeping plays an important role to understand the operation of a particular business. Record will help to understand the amount of money the company is gaining from the employees and how the money has been spent, the employment or recruitment process of the employees and how all the official process of the business has been operated. It also helps to manage the cash flow of the business. There are two leading organisations in Australia who are regulating the record keeping process such as Australian securities and Investment Commission and The Fair Work Ombudsman[10]. Australian securities and Investment Commission regulates the record keeping process of a company and the Fair Work Ombudsman helps the employees to keep their records on track. According to the Taxation Office, an employee should keep the records for at least five years and the Commonwealth Workplace Law requires a record of an employee should be maintained for a period of seven years minimum. The records of the employee can be maintained in two different ways; he can keep the record either electronically or with paper copies. The record keeping maintenance has been mentioned under section 14 of the Fair work Act 2009. According to Part 3 of the Fair Work Regulation, if any employer has failed to comply with all the requirements for keeping a record, he will held liable under the Act and civil penalties can be imposed on him.
In Australia, there are certain provisions dealing with the minimum wages of an employee. Fair work Act 2009 is one of the enactments. The term minimum wage denotes basic payment rate of an employee which he is liable to get in an ordinary working hour[11]. The rate of minimum wage is different in nature and it depends on various industrial instruments that are suitable to apply on different working criteria. According to the Fair Work Act 2009, no employer and employee is allowed to provide or get a remuneration that is less than the actual rate of minimum wage. The rate of minimum wage has been decided by the Fair Work Commissions and the respective process is known as the national workplace relations system. Ten employment entitlements are provided to the employees among which minimum wage is a part. Provisions of the minimum wage will be applied by the sections like award, employment contract or certain other registered agreement[12]. According to section 284 of the Fair Work Act 2009, the main objective of the Minimum wage is to look over the performance of national economy and promote the proper workplace theory by enhancing the workplace participation. According to the National Minimum Wage, at present every employee will get $18.29 per hour before tax. Therefore, it can be stated that Max is not getting the minimum wages from his employer and therefore, he has every right to seek help from the Fair work commission by making an application before them.
Provisions for Deductions in the Payslip
The present problem regarding Max is based on the provision of the Fair work act 2009. The main objective of the Act is to secure the interest of the employees and that includes certain other topics like working hour, waging rate, workplace condition, employment terms and termination process. Minimum wage rate means the basic rate of an employee that is paid by the employer on hourly basis[13]. However, the rate of wage is depending on the industrial instruments that are particularly applicable to him. Therefore, it can be stated that the rate of wage is depending on the modern award or agreement. The minimum wage rate has been determined by the Fair Work Commission and is provided to all the employees who are a part of the national workplace relation system. This includes an annual wage review that has been specified by section 285 to section 299 of the Fair Work Act 2009. According to the current waging system, every employee must get a minimum wage for the work they do. According to the Act, an employee should get $18.29 on per hour basis or he is entitled to get $694.90 on the basis of 38 hours in a week. It is to be taken into note that all these wages are given without any tax deduction. In case of the casual workers, extra 25% loading money has been paid to them.
The waging structure of Australia is unique in nature and it provides many opportunities to all the employees irrespective of their age. Therefore, Australia is providing junior wage to those workers who are below the age of 21 years. It is not clear from the case study that what is the exact age of Max; however, trainee wage is given to all the employees who are under the age of 21 years and it is 12% of the actual waging rate. According to the policies of the junior wages, every employee will get 52% of the actual rate. However, a junior employee will get an adult wage rate after completing the criteria of junior wage rate[14]. The waging criteria of Australia are being criticised by many scholars and it has been observed that certain discriminations are being found in this system. Further, the rate of unemployment has been affected the life of the employees and they get harassed in every step of their life. Therefore, all the necessary steps should be taken by the government to avoid this issue. However, if the age of Max does not exceed 21 years, he will be entitled to get 52% of the actual wage rate.
Record Keeping Provisions for Employers in Australia
In Australia, the working hours of an employee have been fixed by the Fair Work Act 2009 and it is abide by all the employers and employees working in Australia. When an employee is working more than the ordinary working hours, it will be known as overtime. In general, the rate of overtime is higher compared to the original amount of payment. However, the amount differs on the basis of modern awards and registered instrument. A full time employee should work for a term of 38 hours as full time weekly hours. An employee has all the rights to refuse to work unreasonably. In case of any overtime, an employee would be entitled to get extra payment. The amount of payment can be $25 on hour basis. However, there can be certain other extra benefits too apart from the bonus. An employee can get certain flexible benefits such as car facility or health insurance. The benefit may include gratuity or paid leave.
Letter of Advice
To
Arts Corporation Pty Ltd
Australia
The idea of wrongful termination has been cropped up where the employees are get sack from their post by the employer and the termination process includes certain breaches to one or several sections of the employment agreement. Wrongful termination includes the policy of constructive dismissal too where an employee is forced to make resignation from his or her post and it is treated as a serious violation to the employee’s legal right[15]. An employee, who has been terminated from his or her post illegally, can make a complaint before the competent authority for wrongful termination against the company. If the employee is getting terminated by the employer on the grounds of discrimination, retaliation or the employer has not followed the employment policies while terminating him will be come under the purview of wrongful termination or dismissal. The process of wrongful termination will be applied to those cases also where there is no existence of the employment contract in between the employer and the employee.
In this current case, it has been observed that Belinda has got sufficient chances to prove her ability. The company has provided her all the facilities appropriated for her, but all were in vain. She has not responded positively to those procurements and continued to be disgraceful at work.
It has also been observed that Belinda has filed a general protection suit against the company. The Fair Work Act 2009 has provided certain rights to the employees or protecting their interest and the employers are prohibited from breaching any of those provisions[16]. The Act has given certain workplace rights and industrial rights to the employees and in case of any violation regarding the same by the employers, the employees will get all the chances to file a suit against the employer. However, an employee can enjoy the right only when the acts of the employer have contravened the provisions of the Fair Work Act 2009[17]. Therefore, the company is advised to look after the matters whether it has been violated any of the provision in case of Belinda’s termination.
Minimum Wage Rates for Employees in Australia
The complaint relating to the wrongful termination can be made against a company if any employee is terminated in illegal way. In this case, the employee has to show that the employer has infringed the provision of the employment contract. If the employee can prove his innocence, the alleged company will be bound to give him or her relevant compensation under the law. However, there are certain provisions too by which a company can defend it. In this letter, all such grounds are being described categorically.
The defence can be made through three processes such as breach of public policy, breach of implied contract and wrongful termination liability. The employer is required to prove the facts that the behaviour of the employee was against the employment policies of the company and his termination has not breached any provision of the public policies. The company may defend with the plea that the essence of the public policy does not cover the protection of employee’s conduct. If the employee has alleged that the company has breached the provisions of the implied contract, company can defend it by arguing that the alleged implied contract does not existed any more[18]. Further, if the company can prove that it has followed up all the essential sides as per the prescribed regulation and the allegation of the employee has no base; it can be regarded as a good ground of defence.
The company is advised to provide certain information to the employees with an intention to avoid all the future problems. The company can interpreted all the employment policies to the employees and conduct proper training and grooming program whatever is necessary for the employees. Therefore, the company is suggested to look over all the above stated grounds and analyse their response towards Belinda.
The Fair work act 2009 has empowered both the employers and the employees to defend them against the allegation of wrongful dismissal or termination and protected both the rights of the employer and the employee. Both the parties are required to submit their portion of liabilities and prove their innocence over the matter.
In this case, it has been observed that Belinda has made certain allegation against the company and filed two suits before the competent authority by stating the process of her termination has breached the provision of employment contract. it is no doubt to state that she has to collect and submit all the relevant document to prove the burden of proof. Similarly, the company will get a fair chance to defend it against all the allegations. In this case, the company has to prove that the termination process of Belinda is not against the policy of the employment agreement and the company has provided many opportunities to her to prove her eligibility. Therefore, the company has to submit all the notices that had been provided to Belinda for her absence mind during the office hour. Further, the company has called for a meeting with Belinda regarding her poor performance at work and the company can submit the schedule of the meeting too. Belinda has failed to prove sufficient participation in the training and she was irregular at the training program. All these records can prove the innocence of the company. Further, Belinda was surfing social media at her course of work which opposed the employment policy of the company. Therefore, the company can produce all the relevant documents regarding the same. To sum up, the company is advised to take all the appropriate steps by submitting the documents to the competent authority before which Belinda has filed the case and defend it in accordance with the appropriate provision of Fair Work Act 2009.
To
The Supervising Authority
Australia
Sub: Breaches and remedies in employment law regarding unlawful dismissal
Respected Sir,
Considering the statement made by Mary in this case, it can be stated that she has been victimised by the CEO of the Company, Mr. Thomas Yank. The way she has been terminated from her post has violated the provisions of the employment law and it can be stated that she must get all the necessary opportunities to prove her innocence. The acts of the CEO have breached both the provisions of Fair Work Act and Australian Human Rights Commission[19]. According to Article 19 of the International Covenant on Civil and Political Rights or ICCPR, no one will be terminated from his post on the basis of adverse opinion regarding someone or something. According to the Fair work Act 2009, everyone has the right to express their opinion freely and without any interference. These expressions can be made either in the written form or verbally. According to General Comment 34 of the Australian Human Rights Act, any employee will get the rights to get freedom of opinion, freedom to express certain contents and right to access to certain information. Further, the Fair Work Act 2009 has included a provision on the unfair dismissal of the employee. According to this, no employer is allowed to terminate an employee without any proper reason. The main objective of the Act is to protect the interest of the employees.
According to the provision of Fair Work Act 2009, terminate an employee on unreasonable ground is prohibited. It has further been stated by the Act that an employee can get every rights to protect his dignity and status if he or she could be suspended from his or her post. There are certain remedies available for the employee if she can prove his innocence. According to the provision of the law, an employee can make a plea for reinstatement that means he can make an application for getting his job back. He can ask for compensation from the alleged company or from the respective employer. He can get an option to have non-financial remedies such as written statement of service. However, the fair work commission can conduct a mitigation process if both the employee and the employer want an amicable solution to the issue. The outcomes of the remedy have been prescribed under section 394 of the Fair Work Act 2009[20].
After considering the facts of the case, it can be stated that Mary has all the possibilities to make a fair claim against the company and her termination process has breached the provision of the Employment Act and the Fair Work Act 2009. Therefore, the chances to succeed are high in this case.
Regards
Letter of Advice
Respected Madam,
Considering the statement made in your case, it can be stated that you have been terminated from your post without any proper reason. Therefore, you will be eligible to get the opportunity to file a suit for unlawful dismissal. The cause of action has been started in your case when the CEO of your company has asked you for your personal conception regarding the President of United States. The second cause of action has been arisen when you have been terminated from your post on the basis of your own conception. The term cause of action denotes certain facts which enable a person to bring an action against another[21].
It is clear from the above noted facts that you are working as a full time employee at the corporation and your duration of employment is two years. The corporation is situated in Australia, but the CEO of the corporation is American by nationality. Some days ago the CEO has asked for your opinion regarding the President of USA and your reply was dissatisfied him. On the basis of the fact, he has terminated you from your post. He even did not provided any proper reply for that. Therefore, it can be stated that the acts of the CEO has attracted the provision of the unfair dismissal and you are eligible to bring an action against your employer for illegally terminate you from your post.
It has been stated under the Fair Work Act 2009 that any employee whose rights has been violated by the employer, he will go to the Fair Work Commission for getting justice[22]. The Act was enacted to protect the rights of the individual and establish the relevant provisions of the Act. It has also been noticed that the acts of the employers have breached the provisions of the International Covenants on Civil and Political Rights and Human Rights Act of Australia. it is the basic criteria of Fair Work Act 2009 that every employee has a right to express their own idea freely and without any encumbrances. Additionally, an employee should be terminated from his post on proper ground. If the employer will be failed to show proper ground to the employee, the termination will be regarded as unlawful. In your case, the CEO has failed to provide any reasonable ground for your termination and therefore, he has breached the employment provision as well as the provision of Fair Work Act. It is advised to you to go to the Fair Work Commission for better adjudication of your case.
After the complaint has been lodged before the Commission, it will conduct a conciliation process in between you and the alleged employer with an intention to resolve the problem amicably. If amicable solution is not possible, employee can ask for reinstatement or compensation from the company or the employer. The rate of compensation will depend on the potentiality of your job and reward for the distress, humiliation and mental harassment you have suffered after the termination[23]. In case of reinstatement, you will get an opportunity to ask for getting the job back and the amount of payment you will earn if continued in your post. The remedies of the unlawful dismissal have been mentioned under section 394 of the Fair Work Act 2009[24].
In Australia, there are many legal provisions enacted for securing the rights of the employees. Similarly, there are certain other provisions that prohibiting the employees to apply their rights illegally[25]. According to the provision of the Fair Work Act 2009, an employee will get an opportunity of collective bargaining that allows both the employers and the employees to present their views about the employment and create pressure on others. According to Alan Bogg (2014), the process of collective bargaining is democratic in nature. This system is used for stabilising the relation between the employer and employees. There are certain actions that have been taken by the employees to protect their own interest. Such action includes right to strikes, go slow policy and the process of picketing. The Fair work Act 2009 has provided a statutory definition of the term industrial action[26]. According to section 19 (1) of the Act, any restriction applied on any work given by the employees or refusal made by the employees to that specific work is regarded as the industrial action. In certain times, picketing or lock out is also regarded as industrial action within the scope of the Act. The right regarding the industrial action has been recognised by the International Labour Organisation[27]. However, there are certain industrial actions that are considered as illegal in the provision of Australia such as strike. Considering the labour history of Australia, it can be seen that no right of strike has ever been provided to any employer or employees. There is no legal provision that customised the right to strike in Australia till now; however voices are raised in favour of strike now days. Various legislative changes have been made in Australia regarding the protected interest of strikes. Australia has been witnessed to many legal developments regarding the right to strike[28]. The process of legal development has been commenced under the cover of Industrial Relations Reforms Act 1993.
In Australia, all the disputes relating to the industry had been resolved by the Conciliation and Arbitration Act 1904 where strikes and lockouts were not included or permitted. According to that Act, if any dispute has been cropped up in the industrial sector, it must be resolved through arbitration and there should not be any forms of strike took place. If strikes are being conducted by the employees or by any union, they must have to face legal penalties. However, certain reforms have been made in the year 1993 by the then government where the limited right to strike has been recognised. According to the Industrial Relations Reforms Act 1993, a union can only be allowed to call for strike if it had made the entire attempt to resolve a dispute[29]. The union must show its willingness to negotiate with the employers regarding any employment related issues and has to serve a notice for strike 72 hours prior to the strike[30]. Further the union was restricted to call for strikes for personal injuries and in case of defamation.
After 1993, further reformation has been made in the year 1996 when the Workplace Relations Act has been enacted. However, all the rights that are not protected by the Industrial Relations Act have been prohibited and the provision of strike has been excluded from the Act. Situation has been changed after the election in 2007 and the industrial relations have been reviewed totally and the Workplace Relations Act has been replaced by Fair Work Act 2009[31]. In this Act, it has been stated that strike can be legalised if the object of it is to resolve the dispute by way of an amicable agreement[32]. However, the right to strike has been legalised in many countries and the United Nations has also declared the right as a fundamental rights of the labours and the workers by which they can promote or defend their interest. This right has been recognised by the International Labour Organisation too. According to Professor Andrew Stewart, the right to strike must be legalised. In the developed countries like USA or UK, strike is one of the essential instruments of the workers that protect their interest. Strike must be legalised as there are many reasons laid down there. First of all strike enhances the chances of better working criteria. It helps to promote collective demands in case of industrial occupation[33]. Further, the financial and social policies are resolved to certain extent by the process of strike.
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