Employment Relation Law Essay Example
There are various number of sources of legal obligations for employers to their employees. Under the Australian statutes, employers’ obligations to their employees have several sources which includes central government, federal and laws that govern the territories, agreement together with awards, decisions that come from tribunals and employment contracts (Australia Trade Commission, 2011, p. 82). This sources provides the guidelines of how the employer is supposed to treat his employees which includes issues such as ensuring safety and health of the employees , terms of payments, reimbursement of any incurred expenses in the line of duty, compensation in case of injury, non-discrimination and allowing freedom of association and worship in workplaces, unlawful dismissal among others.
The most common source of legal obligations is the governments’ acts. These acts are usually drafted by the government and later passed by the parliament in aim to ensure that her citizens are well protected. For instance in Australia, The Occupational Safety and Healthy Act 1984 ensures the carrying out, cooperation, administration and how occupational wellbeing as well as health are enforced(Commission for occupational safety and health, 2005, p.35). The main objective is to ensure that the employee is protected from diseases together with injuries which may be associated with the occupation. The reason is because, if neglected it may lead to the employee suffering in the end, from diseases which he could never have contracted if he was not in that particular occupation. These Acts usually establish duties which are supported by regulations which enable the stating of what the legislation requires. The regulations may outline the minimum standards which may either have an overall application or may outline requirements which are related to specific hazard or to a particular occupation.
The trade unions are also another source of obligations for the employers to their employees. The trade unions play a very important in maintaining peace in the industries. It achieves its decisions between the employer and the workers unions through bargaining in a collective manner which has a higher influence. They play a very critical role of facilitating effectively how the management and the workers are able to communicate. They are able to provide a platform for support and counsel to ensure opinions that each party which vary does not result into conflicts. The trade unions therefore provide a very effective ground on which obligations for the employers in the different occupations are formulated. Apart from formulating these obligations, the trade unions are also in the forefront to ensure that these obligations and entitlements are carried out by the relevant parties.
Agreements together with awards are also another source of obligations. These normally occur during the time of recruitment in form of a contract. Contracts are generally regarded as an agreement which contains terms which are specific, involving two or more parties and a promise to carry out an act in exchange for a worthwhile benefit commonly regarded as consideration. Contracts are legally binding and if they are breached, the innocent party is liable for a full compensation. An award also occurs between the employer and the employee. The employer may offer certain terms and conditions which are aimed at trying to motivate the employee in carrying out his duties. These can act also act as a source of obligations and entitlements for the employer to the employee.
Issues concerning employment status may also originate from decisions from tribunals. Tribunals can be regarded as either individuals or a body constituted and given the mandate to judge or establish claims or disputes. Various tribunals have been set up in the past, to try and look into the sources of conflicts between the employers and the employees. After investigating thoroughly into the matter they usually come up with comprehensive and unbiased conclusions. The decisions forwarded by the tribunals can also act as a source of obligations and entitlements of employers to their employees.
With respect to common law, all the employees and the employer have a contract specifying the terms and conditions of their employment (Hodges, p 35). The contract of employment specifies the role of the employee, the role of the employer, the rules and regulations that must be adhered to, the duration of the employment, added benefits and any other element depending on the type of industry and country. Due to the signed agreement between the employer and the employee, any breach of the contract may result to a disciplinary or legal action taken against the offender. An employee cannot be sacked by the employer under any circumstance except for a situation where the contract of employment provided for such an action.
The Fair Work Act 2009 also specifies rights and roles of both the employer and the employee. Similar to the common law, the fair work act also involves a contract between the employer and the employee. The elements of the contract are the same as with the contract in the common law. However, the Fair Work Act 2009 provides more protection to the employee against unfair dismissal as compared to the common law. The Fair Work Act 2009 is an improvement of the labour laws that were previously in existence.
There are a several similarities between claims made which arise from wrongful termination of contracts at common law and unfair dismissal under Fair Work Act 2009. The similarities and differences lay in the structure and provisions of the two.
The first similarity is that an employee cannot be dismissed or terminated unlawfully or unfairly by the employer. This is because the contract of employment is a form of security to the employee. If there is termination under common law, the employee can sue the employer with reference to the contract. An employment contract under common law can only be terminated if and only if the employee is not able to fulfill the requirements needed of her/ him in the contract. For instance if an employee is not able to provide the services that he was employed for, leads to termination of a contract since the employee is doing contrary to what is desired of him/ her. Secondly, an employment contract can be terminated due to misconduct of the employee. In this case, the employee may be dishonest or incompetent (Hodges, p 35). The same case applies to unfair dismissal under Fair Work Act 2009. Unfair dismissal is regarded to as an adverse action (Fair Work Australia, p 45). An adverse action is punishable under the confines of the law. The Fair Work Act provides the employee with protection against unfair dismissal since it specifies repercussions of unfair dismissal. The act covers many areas which is a big advantage since this allows for enhanced employment security. Therefore, claims made by an employee on any of the provisions above regarding employment termination and unfair dismissal can be followed easily because of the provisions of the with the necessary laws.
The main difference lies in the broadness of the provisions of the two. Claims in wrongful termination of employment do not enjoy a backing as that enjoyed by claims in the Fair work Act 2009. This explains the reason as to why the Fair Work Act 2009 is upheld by many in Australia.
There are several steps which a particular union may take in order to ensure to secure a guarantee of the wages and conditions that are guaranteed only in employment contracts, awards and company policies. There are various steps which can be implemented by unions in trying to obtain a guarantee of the conditions and wages under what is generally regarded as a collective bargain( International labour Organization, 2011,p.35). These steps if effectively carried out can witness a general improvement in the wellbeing of the employees working conditions.
The first step in the implementation process is the getting ready for negotiations bringing together and consulting widespread data which may range from internal data concerning the company, labour practices, and national legislation which are relevant. This step is aimed at trying to establish internal conditions in the company which are directly affecting the employee. This will hence acts as a basis for the issues to be raised during the negotiation process for them to be considered for improving.
The second step is trying to establish bargaining teams having about four to six members on both sides making up the negotiating table. The main aim is to try as much as possible to try to include all parties involved in all levels and job types. They should try as much as possible to include the lower ranking employees as they possess the credibility to represent, their groups effectively. This is because it is mostly the workers who are lowly ranked that get the worst working conditions.
In the third step the members making up the bargaining teams must consult thoroughly with the group members they present before arriving at the negotiating table. The consulting ensures that members speak as one and ensures the building of trust among members. This step also involves expounding on the steps involved in the negotiation process, coming to know about the major issues, and trying to clarify about the major concerns, interests and the level of expectations concerning these issues.
The fourth step involves carrying out negotiations by way of collective bargain. The negotiations are first opened by a meeting with aim of establishing the authority held by the representatives in terms of bargaining. Rules and procedures to be used are also determined in the first meeting. A list of priority issues is then formulated for discussion and a meeting schedule is set up. The proposals which are put forward by each side are analyzed, resolved then submitted. For an agreement to be reached the proposals must be resolved. Actions may range from withdrawal, acceptance entirely by the other side to compromise. The decisions reached must however be consensual.
The last step involves the communication of the result of the collective bargaining. These are agreements must be put in writing in a language agreed of by all parties. Copies of the agreement should then be made and forwarded to all the concerned parties which include supervisors, managers and also the workers and explanation done in a meeting.
If the employer company does not agree with the course proposed by the union, the union might be forced to take extra steps which in most cases are usually busting tactics. They may range from peaceful to violent means, and from lawful to unlawful, including strikes, sowing discord among members, boycotts , go slows, intimidation and being confronted physically among others. These extra steps taken however drastic they may seem to be, are intended to make the employer company consider their demands, and to act on them in an effort to make the workers feel satisfied.
Strikes are the most used step by unions all over the world in the fight for their rights. Strikes can be regarded as a work stoppage which is undertaken the workers in an aim to support a position taken during the bargaining process or some previous deals reached during a previous negotiation with their employer which has not been met. The strike is mostly aimed at paralyzing all the operations of the company in an effort to make the administration act. The strikes can a take a period as long as years until the workers are assured that their demands will be met. The strikes are usually organized by the leaders of the unions and are the ones who instruct the workers to either to report to work or not.
Industrial actions by a union are aimed at pressuring and compelling the employers to make available certain requirements which are being demanded by the employees. Industrial actions must follow specific steps as allowed by the industrial act. According to Fair Work Act 2009, an industrial action definition is:
The performance of duties by employees in an unusual manner.
Adoption of a practice which lowers performance of work
Complete resistance to doing any work for the employer
The locking out of employees from employment by the employer.
In order to engage in industrial action, the union must follow the following steps.
The union must make sure that the nominal expiry date of the existing agreement has passed.
The union must also ensure that the industrial action they want to undertake is in line with a new enterprise agreement.
Pattern bargaining must not be included in the industrial action.
The union must give a prior notice to the employer within the required time.
The union must have shown its deep interest to trying to reach to an agreement.
A protected industrial action is an action which has been organized within the confinements of the statutory rules. Industrial actions often affect the normal functioning and productivity of an organization. Therefore, without good legislation, the employees and organizers of an industrial action may be victimized by the management of the organization. A protected industrial action is far much more beneficial to an employee as compared to an unprotected one since it is formulated within the confinements of the law. A protected industrial action has the following advantages: first, the employees will have protection against unfair dismissal in the course of the industrial action (Fair Work Ombudsman , p7). Previously, it was the practice of many employers to dismiss their employees when they participated in an industrial action. This was an effective tool in many developing economies since the employees desisted from participating in any industrial actions in the fear of losing their jobs. For this reason, the needs of the employers were not attended to and the working terms and conditions favored the employer than the employee. Then introduction of the Fair Act 2009 provided the employee with a chance to air his / her views without the fear of being sacked.
A protected industrial action also provides the organizers protection against claims of incitement. Employers had the trend of taking the union leaders to the court pressing charges of incitement. This is because of the nature of the industrial laws that existed at that time. However, the introduction of a protected industrial activity gives the leaders and employees some immunity against convictions of incitement when they involve themselves in the activities during the duration activity.
The industrial action which the union in this context can be protected by the act. According to the Fair Work Act 2009, an industrial action is protected if: it is undertaken by employees or the union in a bid to support their demands with respect to an enterprise agreement. The union is taking the industrial action against the employer the slowness and reluctance to take and maintain an insurance policy covering each employee in the company against income loss in case of non-work related illness or injury.
Other requirements for an industrial activity to be protected are: it is taken by the employee or employers as a response to an industrial action which was taken by either party and if the industrial action is in line with the common and additional necessities for protection.
Australia Trade Commission, 2011. Employment conditions in Australia, Australia trade commission, vol. 13, no.7, pp. 78-102
Commission for occupational safety and health, 2005. General Duty Of Care In Western Australia Workplaces, Commission For Occupational Safety And Health, vol. 6, no.3, pp.1-54
Hodges J, 2002. National Labour Law Profile : Australia, International Labour Organization, vol. 8, no. 4, pp 24-57
Fair Work Australia, 2011. Chapter 3- Rights And Responsibilities Of Employee, Employers, Organizations etc, Fair Work Australia, vol. 7, no 4, pp. 24- 62
Fair work Ombudsman, 2011.Industrial Action, Fair work, vol. 5, no.7 pp. 1-5
International Labour Organization, 2011. Collective Bargaining, International Labour Organization, vol.19. no. 6, pp. 23-67
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