Topic 3 – Minimum Standards / Wages / Individual Employment Contracts
Required Reading
A. Stewart, Stewart’s Guide to Employment Law, Federation Press, 5th edition, Chapters 5, 6 and 7
Fair Work Act 2009, Part 2-2
Workplace Gender Equality Act 2012
Further Reading
Sappideen, O’Grady and Riley, Macken’s Law of Employment, Chapters 4, 5, 12
Topic 3 Class Exercises – review and come ready to discuss
On the basis of your reading for Topic 3, try to answer the following questions:
What do the National Employment Standards (NES) include? In your answer, refer to the relevant statute law.
Who do the NES apply to? Refer to the relevant statute law.
In your opinion, do the NES provide adequate protection for workers? Are there any other matters which you would like to see included or excluded?
What are the “modern awards objectives”? Refer to the relevant statute law.
FWC has the power to make awards (to arbitrate a dispute or determine industrial matters). What are the limits placed on the power by the FWC to make awards?
Which parties typically makes submissions to the FWC in minimum wage hearings?
What is the minimum wage in Australia right now? How did you find this information? How often is the minimum wage reviewed?
Discuss the legal issues arising from the following article about the Virgin Blue’s hiring practices from The Age newspaper.
Tribunal member Savage awarded between $7,000 to $12,000 in total damages to each of the former flight attendants, plus interest. The women also won costs. See Hopper and others v Virgin Blue Airlines Pty Ltd [2006] QADT 9 (29 March 2006)
(a) Find the “Airport Employees Award 2010” on the Fair Work Ombudsman website. What is the annual Award salary for a professional engineer level 1?
(b) Find the Award that applies to your job (if you don’t have a job then a job you would like to have). Summarise THREE key terms and conditions, eg salary, leave, etc.
Imagine, for a moment, you are covered by the Veil of Ignorance – you have no forward knowledge of your aptitudes, place in society, access to wealth or access to learning.
Imagine also that legal history is wiped clear. What founding rules (laws), if any, would you establish to regulate the world of work? Consider in particular:
Restrictions on workers combining and acting as groups, or unions
Restrictions on companies combining and acting as groups, or unions
Restrictions or requirements for minimum or maximum wages and other entitlements
The role of the state (governments) in regulating work
Watch the YouTube clip on the history of work / industrial revolution. The traditional employment paradigm has undergone dramatic transformation in the last 200 years.
Describe the modern worker and work.
How has regulation needed to change to this new employment dynamic?
Watch the YouTube clips on the Waterfront Dispute and the Qantas Dispute.
What were the industrial disputes about?
What strategies did the trade unions adopt in each dispute? How did these strategies play out?
What laws do you think should regulate an industrial dispute?
Industrial action is nothing like as prevalent as it used to be in Australia. What factors do you think have caused this decline?
Tools
Virgin Blue loses age discrimination case
Eight flight attendants have won an age discrimination case against airline Virgin Blue.The women, aged between 36 and 56, claimed Virgin Blue discriminated against them in job interviews that required applicants to dance and sing
The women all attended “assessment centres”, where they were asked to sing, dance and perform. None of them made it past the first round.
The flight attendants — all former Ansett workers — alleged in the Anti-Discrimination Tribunal in Brisbane that they were refused jobs with the airline because of their age.
During an earlier hearing, one of the attendants, Theresa Stewart, 52, said she was refused a job at the airline in late 2001 despite her 27 years’ experience, because she didn’t have the “Virgin flair”.
“The assessment was designed to view a large number of people in a very short space of time to see how they look. They were after a certain look that appeals to Richard Branson,” she said.
“If you had two beautiful blonde girls, 25 and gorgeous, then they went to them like homing pigeons.”
Virgin Blue said it had not hired cabin crew over the age of 36 in a two-year recruitment drive because mostly young women had applied.
However, the court sided with the women.
Tribunal member Douglas Savage, SC, upheld all the complaints and awarded costs against Virgin Blue.
Compensation is due to be decided within four weeks.
The flight attendants declined to comment after the decision was handed down. It is understood they have signed a deal with a commercial television station.
– theage.com.au
Imagine you are HR manager of a large company. You are asked to advise the board of directors about what legal obligations the company has under the Workplace Gender Equality Act 2012.
What are implied terms in an employment contract?
Weirmer Investments is arguing Kapp is not an employee.
Is Kapp an employee and therefore entitled to bring his personal injuries claim against Weimar Investments?
Adapted from: R Price, Employment Law in Principle, Lawbook Co (2002).
Are policies and procedures part of an employment contract?
Can an employer vary the contractual terms without the employee’s agreement? Provide three case examples where this took place and the employee sued the employer.
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