Employment Law

Employment Law in Stewart’s (2008) view, it is important for employment to be legalized in a contemporary, capitalist system for numerous people who depend on salaried work to make a living and also for the social and economic welfare of the society they live in. He finds that every country which has an industrialised democracy has established laws that are meant to protect employees in a variety of ways. Therefore they make sure that employers conform to various minimum standards on matters such as remuneration, the hours that one works and safety (p. 1).

This paper therefore aims to discuss two cases involving employment law and how it applies to the situations presented. 1. Mara’s Case The Legality of the Variation of the Contract Mara a sales representative at Daisy Co. was working on a part-time basis whereby she reported to work three days a week and was paid in form of wages and an addition of a commission. However, after a delay in her last commission, it was discovered that the company could no longer afford to do so and therefore it was suggested that she would be paid an additional $ 40 per week instead of a commission.

This action concurs with the view by the CCH Editors (2009) who analyse the Fair Work Act of Australia and discover that in the payment of wages according to a subsection 326 (1), the deduction is reasonable for the purpose of recovering costs that have been incurred by an employer due to the voluntary private use of specific property of the employer by the person hired (p. 485). In this case the private property used the computer. The Case Kilminster v Sun Newspapers Ltd (1931) 46 CLR 284 is submitted whereby it states that Mr. Kilminster took action against Sun Newspapers because they had not terminated him following a reasonable notice.

They gave him two months notice of termination without considering his situation of travelling from Canada to Sydney Australia for a job at the organisation. The High Court made a unanimous decision and agreed with Kilminster’s argument (McCallum 2008, p. 31). In Mara’s case, she had not been given notice about the decision to refrain from paying commission to her until after she had confronted the manager. Also, her removal from the premises had not been warranted. Breach of an implied term of mutual trust and Confidence Pearson and Allen (2008) refer to the case of McDonald v State of South Australia where Mr.

McDonald claimed that his former employer, the Department of Education and Children’s Services had destroyed the relationship of mutual trust and confidence between him and them and therefore felt that he had to resign because the Department had breached the contract he had made with them. In comparison to Mara’s case, she felt that Daisy Co had breached by not paying her usual commission. It can be observed that instead of informing her that they would not be able to afford to pay her commission, they offered her an additional $ 40 per week after she had confronted them.

Mara was forced from the premises of her workplace because of the exchange she had with her employer’s sister because the latter had made snide remarks that ridiculed the former’s boyfriend. Upset by this incident, she decided to resign and sent her letter of resignation. In reference to this Alibekova, Campbell and the Center for International Legal Studies (2007) state that when an employer is involved in conduct that seems to be a fundamental breach of the employment contract then the employee is allowed to resign without serving the full period of her contract.

Therefore, the authors inform that there is common law standards associated with summary termination that apply equally to the advantage of employees (p. 43). It can therefore be established that there was a breach of mutual trust and confidence. Determining Constructive Dismissal in Mara’s Case In the Alibekova et al (2007) definition of Constructive dismissal, it is described as the act of an employee resigning as a result of the employer carrying out a fundamental breach of the contract of employment (p. 43-44).

Since Mara did this due to her employer’s behaviour, then her action is considered a constructive dismissal. 2. The Regink Pty Ltd/ LPU Case Legal status of the Industrial Action by LPU The members of the Local Procrastinators Union had been in negotiations with Regink Pty Ltd. to get them to agree to a log of claims that contained several demands. However, the negotiations broke down and the members of the LPU working for the company decided to go on strike immediately and consequently led to the operation of the factory closing down.

In the case of Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd. submitted by Corcoran and Bottomley (2005), the action in case above is validated by Section 170L of the Workplace Relations Act of 1996 where rules state that during a bargaining period a ‘protected action’ can be carried out for the purpose of supporting claims made in regards to the proposed agreement thus allowing employees to organise and industrial action against those who employed them directly.

Furthermore there is also the notion of a protected person who can be an organisation of workers that is the negotiating party, a member of such an organisation that has been hired by he employer, an employee of the organisation acting in that capability (p. 92). Sewerynski (2003) refers to the Industrial Relations Reform Act of 1993 which states that there is a right to bargain in two ways. These are: Creation of a limited right to strike and Introduction of bargaining in good faith.

In the 1996 legislation, these have included. A bargaining period comes about when an employer or a union informs the other party of their aim to negotiate for an official agreement. The union may inform of their intent to carry out a strike by giving a notice of 72 hours. Therefore, once this notice is given, the action to be taken is protected from torts that make all forms of industrial actions illegal at common law and are banned by court orders and warnings of heavy fines are given. In a case Schanka v.

Employment National (Administration) Pty Ltd ([2001] FCA 579) the International Labour Office (2008) finds that the federal court of Australia believed that simply offering employment conditions upon acceptance of an Australian Workplace Agreement was not pressure because a worker had the freedom to refuse that employment. It was the government’s view that the condition was not different from the case whereby an employee can decline a job offer because of the conditions provided were either insufficient or undesirable for the person (p. 50).

The LPU members felt that their job conditions they had proposed were not being fulfilled and they therefore decided to carry out an industrial action. Gerry’s Legal Action Gerry, a worker at the Regink Pty Ltd, refused to take part in the industrial action. The consequences for this were reflected a month after the strike whereby ten of his colleagues could not forgive him for what he had done and walked off the job whenever he reported for work. The LPU subsequently informed the management that this behaviour would continue until Gerry was relieved of his duties.

His contract was eventually terminated when the waste disposal services of the company failed. According to the Fair Work Act of 2009, a person is not obliged to either participate or not participate in an industrial action unless he wishes to do so. Therefore Gerry had the option of not taking part in the strike. Einarsen (2003) acknowledges that cases that involve bullying or inappropriate coercion are determined by tribunals or in the courtroom. An increasing number of them have been presented to the Australian Anti-discrimination Boards (p.

154). It can therefore be deduced that Gerry’s colleagues at Regink and the LPU were bullying him into resigning. It eventually went to the lengths of the company terminating his contract as a result of this bullying. Einarsen further states that the costs of bullying at national and corporate levels have been assessed. Victimised people were assessed and it was discovered that it would cost the organisation approximately $30,000 to $100,000 every year. In Australian businesses with 1,000 employees, victims would cost the organisation $0.

6 to 3. 6 million per year. Hence Gerry could present a case whereby he would state that he was bullied for making a decision supported by the Fair Work Act of 2009. Conclusion Daisy Co. decided not to pay Mara her commission any longer because they could not afford to do so any longer and offered to pay her $40 per week instead. Legally, this was a fair decision because the Fair Work Act states that the organisation can do so in order to recover costs because of the private property used by Mara which was the computer.

However, the management made a move that breached the contract when they removed her from the premises because of an exchange of words with the employer’s sister. This can be taken to be a form of nepotism. After this incident, she decided to resign and therefore posted a letter of resignation. These events led to her constructive dismissal. In the Regink Pty Ltd case, the workers and the union followed the proper procedure of negotiating with the employer in a claim to improve their work conditions. When there was no reasonable agreement they carried out an industrial action.

They were therefore legalized in taking part in the strike. However, one of the workers, Gerry, refused to take part in the strike and therefore his punishment for doing so was staying away from him. His contract was eventually terminated because the union and the workers pressured the company into sacking him. This step is taken to be illegal since it is a form of bullying in the workplace. Consequently, the legal action that Gerry is supposed to take is to take the issue to court whereby the company will have to pay a substantial amount of money for wrongfully terminating him.

It is also asserted in the Fair Work Act of 2009 that one has the right to refuse to participate in an industrial action thus he should not be penalised for making a firm decision. List of References Alibekova, A. , Campbell, D. and Center for International Legal Studies. (2007). Employment law. Alibekova, A. and Campbell, D. (Eds). Alphen aan den Rijn: Kluwer Law International. CCH editors. (2009). Australian Fair Work Act: with regulations and rules. Sydney: CCH Australia Limited. Einarsen, S. (2003).

Bullying and emotional abuse in the workplace: international perspectives in research and practice. London: CRC Press. Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd in Corcoran, S. and Bottomley, S. (2005). Interpreting statutes. Sydney: Federation Press. Kilminster v Sun Newspapers Ltd (1931) 46 CLR 284 in McCallum, R. (2008). McCallum’s top workplace relations cases: labour law and the employment relationship as defined by case law. Sydney: CCH Australia Limited. McDonald v State of South Australia (2008) SASC 134 in Pearson, D. and Allen R.

(2008). Employment Law in Australia: Recent Cases. London: Law Business Research Ltd. McCallum, R. (2008). McCallum’s top workplace relations cases: labour law and the employment relationship as defined by case law. Sydney: CCH Australia Limited. Office of Legislative Drafting and Publishing. (2010) Fair Work Act 2009. Canberra: Attorney General’s Department Schanka v. Employment National (Administration) Pty Ltd ([2001] FCA 579) in International Labour Office (2008). Application of international labour standards 2008 (I). Geneva: International Labour Organization.