Q1

            Australian employees do not have a right to employment. What they, however, have is the legal protection of several of their rights with regard to their employment. A right to employment would have presupposed that employers have the corresponding responsibility to continue employing these employees. That employees in Australia do not have a right to employment can also be seen from the perspective that employers can sometimes be justified in ending the employment relationship. Such permission is inconsistent with what would be considered as a right to employment. Furthermore, the employment relationship is largely contractual in nature and this presupposes some degree of freedom on either party to e end the relationship when it is no longer tenable.

What employees have are a set of rights attached to the fact of their employment as opposed to a single right to employment. These set of rights are alive to the fact that most employees would often be in a vulnerable power relation as against their employers. The set of rights, therefore tries to balance the way employment relationships are conducted. These rights do not, however, extend to entrench any singular right to employment.

As a contractual relationship, either party in the employment arrangement has some leeway in determining the nature of their interactions. The existence of a blanket right to employment would, therefore, be obviously inconsistent with such level of freedom. This reality has been accorded legislative support even in the Fair Work Act 2009(Cth). The recognition comes in the form of according circumstances where the employer can actually end the relationship without inviting any adverse consequences. An example would be a situation where the employer is undergoing restructuring entitling it to rely on redundancy provisions to end the relationship. Ordinary termination of an employee is also lawful provided the set down procedures are followed.

Q2

Employer policies are enforceable both as against the employee on the one hand and as against the employer on the other in circumstances where it can be said that such policies are incorporated in the contract of employment. For incorporation to occur, it is a requirement that the relevant clauses in the policy are wording in promissory terms and not just in inspirational manner.

As against the employer, organizational policies may further be enforceable in circumstances where there is a claim for unfair dismissal. An employer may be entitled to rely on its policy to show that the dismissal of an employee was lawful. It has been explained in prior cases that the employer must show that the policy was reasonable and lawful and that reasonable steps were taken to emphasize its significance to the concerned employee.[1] Even where this requirement of reasonableness has been established, the policy would only be enforceable as against the employer in a number of further circumstances.

For one, there must have been adequate communication of the policy to the employee.[2] The employer must also have itself adhered to the policy in question and especially when it concerns disciplinary procedure.[3]It is also a requirement that there be consistency in prior enforcement of the policy. An employer is highly unlikely to enforce a policy as against an employee if its past enforcement of the policy has been inconsistent.

On the part of the employee, it a policy is enforceable against him or her will further depend on whether the affected employee has adequately informed himself of the policy. For instance, an employee who has breached a company policy on drink driving is unlike to disclaim the application of the policy if it is shown that they made no effort to adequately inform themselves of that policy.

Q3

The roles of the Fair Work Ombudsman are outlined in section 682 of Fair Work Act 2009(Cth) (FWA). A visit to the organization’s website summarizes its roles ensuring compliance with Australian workplace laws and the promotion of harmonious, productive and cooperative workplace relations. [4]

Ensuring compliance with workplace laws

In performing this role, the Fair Work Ombudsman essentially acts as a regulator of standards in the workplace within Australia. Besides the principal legislation which is the Fair Work Act 2009(Cth), several other laws and regulations come into play in Australian workplaces. Some of the matters that the organization is charged with enforcing include anti-discrimination statutory provisions, sham contracting, unlawful industrial action as well as freedom of association in the workplace as can be found in Part 3 of the Fair Work Act.

For the performance of its compliance function, the ombudsman draws on a number of tools as would often be expected of any regulator. Civil litigation is one of the regulatory tools open to the ombudsman. Litigation is, however, always the last resort all the other available alternatives have failed or are just unable to resolve the specific issue. For instance, use of voluntary compliance has also been a feature of FWO’s approach to its compliance role. This can be seen in its policies and most of its annual reports.

Promotion of harmonious, productive and cooperative workplace relations

Harmonious relations in the workplace entail having appropriate mechanisms to resolve any disputes arising without necessarily productivity. The FWO is in a position to achieve this by forestalling any possible disruptions before they play out as real disputes making it difficult for parties to disrupt production. For instance, the organization is able to use its investigative powers to identify potential problem areas. The information gathered in such investigations can then be used in initiating corrective action.

Q4

Indirect discrimination is often defined with reference to the adverse effect that the impugned action has as opposed to what can actually be observed (Gaze & Smith, 2016). At its core is the recognition that an action may look entirely neutral but its affects may not necessarily be so. For instance, requiring all people to seeking a job to posses certain specified qualifications in itself may look very neutral. Such a requirement may, however, be discriminatory if its effect would be to adversely affect a certain group of the population more than it affects others. This could be the case in situations where a certain sector of the society has been historically underprivileged as would, therefore, ordinarily be unable to have the required qualifications. The requirement that had originally seemed neutral would then end up have a discriminatory effect on this category of the society. It is for this reason that indirect discrimination has sometimes been said to focus on substantive equality as it looks at the substance rather than the form of any given action. The concept of substantive equality is alive to the fact that equality goes beyond the mere treatment of people in the same way.

A major difference between indirect discrimination with its direct counterpart is that the latter refers to different treatment of people based on some identified characteristic (Gaze & Smith, 2016). An example is the payment of different wage rates based solely on their gender differences of being male and female respectively. One can see than it is easy to observe whether discrimination is occurring if it is the direct type as one would simply need to check whether a person is differently treated based on the identified characteristic. This leads to the further conclusion that indirect discrimination is less easy to detect in contrast to its direct counterpart.

Q5

The inability of the Fair Work Commission (FWC) to enforce its own decision is a reflection of the legislative structure that underpins it. The core of that legislative structure is the Fair Work Act 2009(Cth).  Under that legislative structure, each of the three major institutions has been given specific mandates that they are supposed to discharge. It just happens that the FWC has not been given the power to enforce its own decisions. One can, therefore, answer the question as to why the FWC cannot enforce its decision simply by saying that the law does not give such powers.

But a more nuanced response to the question would point to the very nature of FWC (Thomson Reuters, 2014). The legislative structure indicates that the FWC is a tribunal for workplace relations in Australia. As such, it is not part of the judicial system but performs what can largely be seen as executive functions. Being seen as such a executive organ, one can understand that the decision not to confer it with enforcement powers was a deliberate choice  of the commonwealth legislature to remain true  the time tested constitutional principle of separation of powers. Under this concept, the judicial, legislative and executive functions are to be separate from each other all though interdependent.

The legislative scheme was indeed alive to this fact by providing the mechanisms through which one can enforce decisions of the FWC. In the first instance, it is often hoped whoever a decision of the FWC is directed towards would comply without any need for coercive mechanism (Thomson Reuters, 2014). It is only in the situations where voluntary compliance is not forthcoming that parties resort to enforcement mechanisms. A person has the option of filing a small claim in the court in respect to a decision of the FWC. This can be done either at the Federal Court of Australia or the Federal Circuit Court of Australia both of which have specialist Fair Work divisions.

Q6

An industrial tort can be understood to mean the unlawful interference with economic relations (Latimer, 2012). They are essentially industrial action with the consequence of inflicting economic loss (Amma, 2007). Intimidation and interference with contractual relations are two examples of industrial torts. An employer may bring an action for remedies where it is alleged that an industrial tort has been committed.

Under interference with contractual relations, the claimant would simply be pleading that the impugned action has interfered with its contractual obligations or rights (Amma, 2007). Actual breach is not always necessary. For instance, a union may be accused of inducing employees to breach their contractual obligations with the employer forcing the company to breach its contractual obligations with other third parties. If this is established to have happened, the employer can actually bring an action against the union claiming the various remedies that would ordinarily be available to parties under the common law. For example, the company can obtain an injunction against the company to stop any further interference with contractual relations. It can also get damages from the union. This tort is only applicable when the interference has been occasioned through the use of an unlawful means.

On its part, intimidation presupposes that some form of coercion by the union like where threats are used against an employer forces it to do something that it would otherwise not have done. An example could be the threat to take industrial action unless a named employee of a company is terminated. Depending on how the employer perceives the threat, it may or may not accede to it. Acceding to the threat may, however, mean that the employer breaches its contractual obligations with the terminated employee entitling the latter to maintain an action for the industrial tort of intimidation against the union.

Q7

The roles of the Fair Work Commission (FWC) are spelt out in the Fair Work Act (Cth) which is the establishing legislative framework. All those roles boil down to the fact that FWC is the tribunal for workplace relations in Australia at the national level (Thomson Reuters, 2014).Under that broad mandate, the commission would be doing a number of things most of which revolves around solving disputes. It makes determinations including workplace determinations. It can also receive and hear unfair dismissal applications.

Much as it has a significant role as already outlined, the FWC is admittedly unable to enforce its own decision. The inability of the Fair Work Commission (FWC) to enforce its own decision is a reflection of the legislative structure that underpins it. The core of that legislative structure is the Fair Work Act 2009(Cth).  Under that legislative structure, each of the three major institutions has been given specific mandates that they are supposed to discharge. It just happens that the FWC has not been given the power to enforce its own decisions. One can, therefore, answer the question as to why the FWC cannot enforce its decision simply by saying that the law does not give such powers.

The legislative scheme was indeed alive to this fact by providing the mechanisms through which one can enforce decisions of the FWC. In the first instance, it is often hoped whoever a decision of the FWC is directed towards would comply without any need for coercive mechanism (Thomson Reuters, 2014). It is only in the situations where voluntary compliance is not forthcoming that parties resort to enforcement mechanisms. A person has the option of filing a small claim in the court in respect to a decision of the FWC. This can be done either at the Federal Court of Australia or the Federal Circuit Court of Australia both of which have specialist Fair Work divisions.

Q8

            Under the Work Health and Safety Act 2011(Cth), various parties are charged with a number of statutory duties. One of those statutory duties is on the employer to provide proper information, instruction, training and supervision (Thomson Reuters, 2014). Discharging this duty essentially places a responsibility of the employer to ensure that all employees under than and every other person concerned in their various workplaces are continually updated on the work, health and safety issues arising in the specific place of employment.

There is no specific mode of compliance stipulated in the statutes but some core minimums can be identified in the various statutory provisions. It would, therefore, be expected that an employer will have a workplace health and safety policy as the staring point. Such a policy must be alive to the specific WHS issues facing the particular employer. It should be a reasonable policy. Discharging the duty does not, however, end with the mere existence of a workplace health and safety policy. The employer must further ensure that everybody concerned is acquainted with it to the extent that it can be of meaningful practical benefit should those concerned be confronted with actual work health and safety issues. As such, it would not suffice for an employer to simply develop methods of dealing with OHS issues. There is the added need to ensure that the same is internalized to the extent that the employer can be reasonably absolved from incidents not attributable to their failure to have the policy in place in the first instance.

Practical measures that will demonstrate that an employer has complied will include regular review of safety measures at the workplace. Such reviews are often aimed at assessing the vulnerability of existing safety measures. Having clear reporting channels for health and safety issues is another mechanism for ensuring compliance.

Q9

            As a scheme, the no-fault system simply means that the compensation made for those who have been injured or suffered any loss is not based on fault on the part of the person making the compensation. An employee who has been injured in the place of work will, therefore, be entitled to compensation solely because they have sustained the injury independent of any fault or otherwise of the employer. The only hurdle was anyone making a claim under such a system would be to show that they are eligible upon which the duty to make compensation automatically accrues. One can contrast it with the adversarial based systems which insist on the person claiming compensation to demonstrate that there has been some fault on the part of the person from whom the injury is sought. The fault in question is normally the failure to discharge some legal duty that the claimant was owed by whoever they may be claiming from. For instance, the employee may claim that the employer had failed to discharge a statutory duty under the workplace health and safety legislation as a result of which the employee has sustained injury. In same cases, the duty alleged to have been breached is common law duty leading to a claim for negligence.

Just like the fault system, an employee in a no-fault compensation will be able to make a claim once there is an occurrence of the injury contemplated under the scheme. Every scheme will normally have its own specifications spelling out the eligibility criteria and the extent of coverage. A prerequisite to making a claim is, however, the fact that the relevant employer must have subscribed to some form of insurance scheme. This requirement is often easily met its is often a compulsory requirement for all employers to subscribe to a scheme.

Q10

The roles of the Fair Work Ombudsman are outlined in section 682 of Fair Work Act 2009(Cth) (FWA). A visit to the organization’s website summarizes its roles ensuring compliance with Australian workplace laws and the promotion of harmonious, productive and cooperative workplace relations. [5]

Ensuring compliance with workplace laws

In performing this role, the Fair Work Ombudsman essentially acts as a regulator of standards in the workplace within Australia. Besides the principal legislation which is the Fair Work Act 2009(Cth), several other laws and regulations come into play in Australian workplaces. Some of the matters that the organization is charged with enforcing include anti-discrimination statutory provisions, sham contracting, unlawful industrial action as well as freedom of association in the workplace as can be found in Part 3 of the Fair Work Act.

For the performance of its compliance function, the ombudsman draws on a number of tools as would often be expected of any regulator. Civil litigation is one of the regulatory tools open to the ombudsman. Litigation is, however, always the last resort all the other available alternatives have failed or are just unable to resolve the specific issue. For instance, use of voluntary compliance has also been a feature of FWO’s approach to its compliance role. This can be seen in its policies and most of its annual reports.

Promotion of harmonious, productive and cooperative workplace relations

Harmonious relations in the workplace entail having appropriate mechanisms to resolve any disputes arising without necessarily productivity. The FWO is in a position to achieve this by forestalling any possible disruptions before they play out as real disputes making it difficult for parties to disrupt production. For instance, the organization is able to use its investigative powers to identify potential problem areas. The information gathered in such investigations can then be used in initiating corrective action.

 References

Amma(2007).Constructing Lawful Workplaces:The Need to Maintain Australia’s Economic Success by Retaining a Strong Industrial Action Compliance Regime.

Batterham v Dairy Farmers Limited [2011]

Gaze,B. & Smith,B.(2016).Equality and Discrimination Law in Australia. University Printing House, Cambridge: Cambradge University Press.

https://www.fairwork.gov.au/about-us/our-role

Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893

Latimer,P.(2012).Australian Business Law.31^st edn.Sydney:CCH Australia.

Queensland Rail v Wake (2006) 156 IR 393

Thomson Reuters (2014). The Law Handbook: Your Practical Guide to the Law in New SouthWales.13^th edn.Sydney: Thomson Reuters.

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