Law Essay Example

5Labour Laws

Australian Labour Laws

College:

Introduction

Owing to the metamorphoses that Australian labour legislations have undergone, one would legally agree that although offering a job to someone is a straightforward thing to do, it can be a minefield to the unwary employer. This ensues from the transformations that have been done to the Common Law with respect to employment laws. Australian constitution borrows heavily from the United Kingdom’s statutes and common law and therefore, its labour laws are more or less the same as that of the latter. From agrarian economy to industrial economy, Australian labour laws have progressed from the oppressive master-servant relationship to a cordial employer-employee relationship of the industrial era (Creighton and Stewart, 1994).

The customized Australian version of Master and Servant Act that criminalized the clamour by workers for better working conditions repealed in the 1970s moderated the relationship between the employer and the employee. The growing influence of the working middle class in the political philosophy of laissez-faire brought them greater freedom of equal bargaining power with employers. Consequently, it suffices to say, legitimately, that the latter-day employment contract drawn, partly from the common law, is a delicate affair for employers.

The Contractual Theory of Employment

The underlying principle of the contractual theory of employment is the freedom with which both parties of a contract have with respect to obeying its conditions. The term ‘contract’ formed the theoretical starting point for all commercial transactions growing out of the political philosophy of laissez-faire (Robertson, 2002). Subsequently, there was much greater freedom politically, economically, and in terms of mobility in employment. Working conditions within this new order were now understood as commercial arrangements. The relationship between employer and employee consequently, became contractual – as an agreement freely negotiated between parties who were on an equal footing and who were prepared to acknowledge the enforceability of the set of reciprocal rights and obligations they created (Wallace and Pagone, 1990).

Australian labour laws clearly spell out the procedures of contracting for employment that leave either party satisfied with the contract. The straightforwardness with which an employer initiates and successfully concludes a contract with an employee is fraught with uncommunicable (albeit sometimes communicable) terms and conditions that when breached can have terrible repercussions to the employer. Today, the law provides for the voluntary membership with unions, which is an employee’s right that his/her employer cannot deny him/her (A.P.H., 2005, p. 13). Workers’ unions are tasked with caring for its members’ welfare through negotiating with employers on their behalf. The law permits employees under this umbrella to strike from work, upon notifying the appropriate authorities, if employers refuse to meet their conditions and still remain entitled to remunerations from the latter (Deery and Plowman, 1985).

The terms and conditions that are part of contractual employment law clearly spell out the duties and obligations that each party to the contract owes to the other. An employee for, example, has the duty to execute the activities for which he/she was hired, to safeguard the tools and equipment of his/her trade that belong to the employer, and to conduct him/herself with decorum all the times while executing the duties of his office. In return for all these, an employer must also fulfill his/her duties in order to consummate the contract. According to the law, an employer has a duty to provide work to the employee, the duty to care for his employees through the provision of safe working conditions, the right tools and equipment for the work, access to the work place, et cetera. Moreover, an employee is required by the law to provide remuneration to his/her employee as agreed at the time of signing the contract. This provision occupies a central position in contractual employment law. The minimum wage in Australia is set by awards and industrial tribunals whose standards must be adhered to in the contract by any employer.

Sometimes the conditions that were previously contained in the latter can be eclipsed by such factors as social, economic, political, et cetera thus occasioning the clamour by employees for the incorporation and enforcement of the same in their employment contracts. Typically, employers would find it economically uncomfortable to effect these changes, and actually, they would be forced to negotiate with workers’ union when workers threaten to strike (Grogan, 2000). This example brings out the lurid unpredictability that embodies the 21st century contractual employment law in Australia. It is awash with minefields for employers who are not shrewd negotiators when dealing with workers’ union, which is becoming more powerful as the influence of working class continues to become stronger by the day (Forsyth and Stewart, 2009).

Conclusion

Today’s employers in Australia have their hands tied when it comes to dealing with their employees. Before the advent of a powerful working class that influenced the political philosophy of laissez-faire, employers condescended on their employers in a cruel master-servant pattern that always bequeathed them with higher bargaining power with relative to that of workers. But thanks to the growth of the working class, the tables have been turned and employers are considered as equal partners with employees under the new employment contract law.

References

Melbourne, Commonwealth Government Printer.Parliamentary debates (Hansard).: House of Representative, Vol. 276. A.P.H. (Australia, Parliament, and House of Representatives), (2005)

Melbourne, Federation Press.Labour Law: an introduction. Creighton, W. B. and Stewart, A. (1994)

Sidney, McGraw-Hill Book Co.Australian industrial relations. Deery, S. and Plowman, D. H. (1985)

Forsyth, A. and Stewart A. (2009) Fair Work: The New Workplace Laws and the Work Choices Legacy. Melbourne, Federation Press.

New York, Juta & Company Press.Workplace law. Grogan, J. (2000)

New York, Routledge.A dictionary of modern politics. Robertson, D. (2002)

Melbourne, Federation Press.Rights and freedoms in Australia.Wallace, J. and Pagone, T. (1990)

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