Chapters 1 And 2
Question 1
- In accordance to section 13, as provided in the Fair Work Act (Cth) of 2009, a ‘national system employee’ can be said to be a person as long as he or she is actually employed, or normally employed, as demarcated in the specific definition of the ‘national system employer’ as given in section 14, by any ‘national system employer’, excluding any vocational placement. In accordance to section 14 of the above said Act, a ‘national system employer’ can be said to be (a) any constitutional company, as long as it hires, or normally hires, a person, or (b) the Commonwealth, so far as it employs, or usually employs, a person, or (c) any Commonwealth authority, as long as it hires, or normally hires, a person, or (d) any individual as long as the individual, in relation to the constitutional trade or the commerce, hires, or normally hires, any person [as: (i) a specific flight crew official, (ii) a specific maritime employee, (iii) a specific waterside worker], or (e) any particular body corporate registered in any Territory, as long as the particular body hires, or normally hires, a person, or f) any individual who continues with any specific activity (whether of governmental, commercial or any other nature) in any Territory in the nation of Australia, as long as the individual hires, or normally hires, any person in relation to the activity that is continued in the said Territory (Lambropoulos, 2019). The above said definitions have been forwarded in such manner because they relate to the national employment standards.
- The ‘National Employment Standards’ (or NEC) of Fair Work Act (Cth) of 2009 had been enacted from the limitations of section 51 (xxxv) of the Australian Constitution. The National Employment Standards (NES) can be considered to be the minimum standards relating to employment that have been forwarded in Fair Work Act (Cth) of 2009, which are applicable in relation to every national system employee as well as employer. The NES actually initiated on the 1stday of the month of January in the year of 2010 and it gives rise to the safety net entitlements in connection to every national system employee. The NES are applicable differently in respect of the agreement (or award) free employees as well as causal employees. Although, if any specific agreement is made before the beginning of NES and encompasses terms that might be regarded as damaging to the employees in comparison to NES, then such terms shall have no effect. It should be noted that every employee in the workplace relations structure of Australia is covered by NES, regardless of their agreement, contract or award (however, just few specific entitlements are applicable in relation to the casual employees) (Warhurst & Knox, 2022).
Question 2
In the case of ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, it had been decided that 2 truck drivers, who had been affianced and involved by a specific business corporation for a time period of not less than thirty years, shall not be regarded as employees (as argued by them), instead, they shall be regarded as genuine, open and sincere independent contractors in accordance to the specific terms relating to their involvement with the concerned business corporation. In the case of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, the decision was forwarded that Mr. McCourt would be an employee in connection to Personnel Contracting. The High Court said the role of the Court is to describe the relation by inspecting the entirety of the relation considering the obligations and rights of the parties that may have been provided in the specific written contract. It was concluded by the High Court that a multi-factor approach, which examines every relation amidst the parties in the course of the complete history of the dealings, would be inappropriate and unnecessary. However, the it was also noted by the High Court that scrutiny of the post-contractual conduct shall be permissible in specific circumstances (Squirepattonboggs.com., 2022).
The decisions that have been provided in the above said two cases actually forwarded certain implications in relation to the legal test regarding the identification of an independent contractor and an employee. Each of the above said decisions actually tackled the question as to whether certain specific workers were independent contractors or employees, and confirmed and acknowledged the importance and prevalence of the contractual terms in connection to the determination of the legal nature of the relation, although, it could also be said that the contractual terms would not be the only substance that should be taken into consideration.
Question 4
Section 15A, as provided in the Fair Work Act (Cth) of 2009, an individual can be said to be a ‘casual’ employee of any employer if (i) any specific offer of employment, which has been made by the particular employer in respect of the individual, has actually been made based upon the fact that the particular employer shall not commit to deliver continuing as well as unlimited work as per a decided outline of work in relation to the individual, and (ii) the individual actually accepts the specific offer based on that fact, and (c) the individual becomes an employee due to such acceptance. As per the ‘National Employment Standards’ (or the NES), the casual employees have the entitlement in relation to having accessibility to a way of becoming a lasting and perpetual employee (Sisson, 2019).
In the case of WorkPac Pty Ltd v Robert Rossato & Ors [2021] HCA 23, the test relating to casual employment had been forwarded. In the case, the test relating to casual employment states that any casual employment shall be determined on the basis of the fact that whether a ‘firm advance commitment’ is present or not. Whether a ‘firm advance commitment’ actually exists or not shall depend upon whether enforceable terms actually exist in relation to a specific employment contract to that particular effect, and in such regard, the unenforceable ‘understandings’ or ‘expectations’ regarding the relation amidst the parties should be rejected.
Chapter 3
There are similarities as well as differences amidst the statutory definition of ‘casual’ employee and the ‘casual’ test as forwarded in the Rossato case. The main similarity amidst the above said two descriptions is that both the descriptions actually refer to the commitment of the employer that would be specified in the employment contract. Both the descriptions actually emphasize upon the primary and prevalence of the employment contract. Both the descriptions states that the determination as to whether an individual would be regarded as a ‘casual’ employee or not shall depend entirely upon the conditions and terms that are provided in the employment contract. However, the only difference that arises amidst the above said two descriptions is the specification of ‘firm advance commitment’ forwarded in the test relating to ‘casual’ employment in the Rossato case. In the Rossato case, it had been clarified by the High Court that the ‘firm advance commitment’ shall be determined by taking into consideration the legal obligations and rights that constitute that specific relation amidst the parties.
Question 6
A specific code of conduct or other policies could be made part of the employment contract. A prime case in this regard can be said to be the case of Rugby Australia vs Israel Folau (2019). In this case, Folau was considered to have violated the code of conduct of the workplace. The code of conduct of Rugby Australia arranged and prescribed standards in respect of everyone who were involved in the Rugby, which also included the requirement to treat every individual fairly, equally as well as with dignity irrespective of gender identity or gender, ethnicity, sexual orientation, religious or cultural background, disability or age. It was noted that any kind of harassment, discrimination or bullying does not have any place in the game of Rugby. The particular Code of Conduct of Rugby Australia also provided for proper utilization of the social media, which includes requiring the participants to evade the utilization of the social media as a specific means for violating any specific provision of the concerned Code.
In the year of 2019, Israel Folau posted on the Instagram that the underworld was waiting for the homosexuals, drunks, fornicators, adulterers, liars, atheists, thieves and idolaters. Consequently, Rugby Australia excluded Folau from the game of Rugby for causing a violation of the Code. In the case, it had been stated that Israel Folau had actually agreed to adhere to the Code of Conduct of Rugby Australia as a part of his own employment contract and arrangements, and hence, as a consequence, he shall not be able to disregard or neglect the Code without any implications (BBC News., 2022). Therefore, one can say that the Code of Conduct can be incorporated as a part of any employment contract, and if any person causes a violation of the Code of Conduct, then that person shall also cause a violation of the employment contract, thereby, facing legal implications in such regard.
Question 7
The ‘National Employment Standards’ (or NES) can be said to be a set of eleven minimum rights or entitlements that should be given in respect of every national workplace system employee in the nation of Australia. These specific minimum standards relating to employment encompass the flexible working plannings and arrangements, the working hours, as well as the leave and other related rights or entitlements. Part 2-2, as provided in the Fair Work Act (Cth) of 2009, actually provides the National Employment Standards. Division 2 of the Part 2-2 forwards the list containing the National Employment Standards (Fairwork.gov.au., 2022).
Question 3
Division 3 states that the maximum weekly hours for working shall be 38 hours every week for any perpetual full-time employee, in addition to the reasonable extra hours. Division 4 states that one shall be able to request for the flexible working plannings and arrangements. This provision entitles certain specific employees to actually request any change or alteration in their particular working arrangements due to their particular situations. Division 5 deliberates the parental leave and the other connected rights. In this regard, there could be twelve months ‘unpaid’ leave for the employees who actually have been present in relation to the business for the past twelve months, and are likely to be constant employees on a daily and methodical basis (ultimately depending upon the specific situations of the employees). Division 6 relates to annual leave. This provision states that 4 weeks paid leave shall be provided every year for the perpetual employees, as well as an extra week for specific shift workers. Division 7 states that in case of compassionate leave, 2 days paid leave shall be provided, and in case of carer’s/personal leave, 10 days paid leave shall be provided, and in case of domestic violence leave, 5 days unpaid leave shall be provided. Division 8 states community service leave can be taken by permanent employees in relation to any voluntary and charitable emergency activity (or else jury service). Division 9 states that long service leave can be said to be a specific entitlement provided in respect of the employees on the basis of their incessant service in connection to the business. Division 10 states that the permanent employees shall receive a paid day off on any public holiday. Division 11 mentions that in case of the notice relating to termination as well as in relation to redundancy pay, there should be a written notice relating to termination or relating to payment in lieu (dependent upon the situations) before 5 weeks, and a severance pay on the redundancy (unless you are a small business employer or covered by an industry specific redundancy scheme) before 16 weeks, on the basis of the total length of the incessant service of the employee in connection to the business. Division 12 provides a ’Fair Work Information Statement’ in respect every employee. It should be noted that the most recent National Employment Standards addition in relation to the Fair Work Act are Division 11 and Division 12, that is, the notice relating to termination as well as redundancy pay, and the ‘Fair Work Information Statement’.
Question 8
The main issue is whether Janine shall be able to make the specific deductions.
In this regard, the case cited to be Wadley v YMCA Canberra [1996] IRCA 568 can be regarded as an important case. In the Wadley v YMCA Canberra case, it had been said that an employee should be provided with a specific opportunity to defend oneself. Any specific employer should adhere to the procedure of providing the employee with an opportunity to actually deal with the allegations in relation to the conduct. It was specified that the employers must possess a good reason for issuing the warnings prior to making any kind of disciplinary decision, and if any employer wishes to give effect to any disciplinary action without a prior warning, then such disciplinary decision can be overturned and the aggrieved party could claim damages.
In this regard, the case cited to be Wadley v YMCA Canberra [1996] IRCA 568 can be regarded as an applicable case. Applying the Wadley v YMCA Canberra case, it had been said that the employees of Janine should be provided with a specific opportunity to defend themselves. Janine should certainly adhere to the procedure of providing the employees with an opportunity to actually deal with the allegations relating to the cash shortfall. It must be specified that Janine should give the warnings prior to making the disciplinary decision of reducing their wages of her employees, and if she gives effect to the disciplinary action of salary reduction without a prior warning, then such disciplinary decision can be overturned and the employees could claim damages.
In conclusion, Janine shall not be able to make the specific deductions.
Question 9
Any employer may legitimately and reasonably control as well as sanction the postings on the social networking platforms by the workers or employees in the following manner: –
- There should be a specific policy relating to social media and internet utilization. A clear and direct policy in relation to social media and Internet is absolutely vital so that it is communicated to the employees that there would be limits of the acceptable online conduct and communication.
- The usage of the Internet should be monitored. Monitoring the utilization of social media and Internet inside as well as outside of the place of work can be regarded as a vital step.
- There should be an implementation and an enforcement. Every written policy should be implemented in an adequate manner. It should be noted that a well-enforced policy shall have 4 main components. The first component is relevance. The employees and management must be aware regarding the relevance of the application of the essential policies. The second component is proportionality, which means that every policy should be rational and reasonable. The third component is consistency, that is, every policy should be applied in a fair and consistent manner. The for the component is flexibility, that is the policies might change and modify from time to time.
References
BBC News. (2022). Israel Folau reaches settlement with Rugby Australia. BBC News. Retrieved 11 April 2022, from https://www.bbc.com/news/world-australia-50653762.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
Fair Work Act, 2009 (Cth).
Fairwork.gov.au. (2022). Fairwork.gov.au. Retrieved 11 April 2022, from https://www.fairwork.gov.au/employment-conditions/national-employment-standards.
Lambropoulos, D. V. (2019). A Question of Reasonableness: A Review of the Small Business Fair Dismissal Code Under the Fair Work Act 2009 (Cth). The Australian Bar Review (2019), 48(1), 95-112.
Rugby Australia vs Israel Folau (2019).
Sisson, K. (2019). The Fair Work Wales report: a manifesto for all of us. Industrial Relations Journal, 50(5-6), 564-579.
Squirepattonboggs.com. (2022). The Contractor Conundrum: What the Recent High Court Decisions Mean for Your Organisation | Events | Insights & Events | Squire Patton Boggs. Squirepattonboggs.com. Retrieved 11 April 2022, from https://www.squirepattonboggs.com/en/insights/events/2022/03/the-contractor-conundrum-what-the-recent-high-court-decisions-mean-for-your-organisation.
Wadley v YMCA Canberra [1996] IRCA 568.
Warhurst, C., & Knox, A. (2022). Manifesto for a new Quality of Working Life. human relations, 75(2), 304-321.
WorkPac Pty Ltd v Robert Rossato & Ors [2021] HCA 23.
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
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