MGMT3701 LEGAL ASPECTS OF EMPLOYMENT T3 2021 Tutorial Guide Inside you will find: Tutorial questions, readings and class exercises. Please use this document as your weekly guide to class topics and preparation. Lecturer in charge and tutor: Sarah Gregson s.gregson@unsw.edu.au Tutor: Jeane Wells j.wells@unsw.edu.au Course schedule: Lectures: Tutorials: Mondays 11am-1pm online, see link to Collaborate on Moodle Tuesdays 4-5.30pm online, see link to Collaborate on Moodle Wednesdays 2-3.30pm, see link to Collaborate on Moodle Wednesdays 4.30-6pm online, see link to Collaborate on Moodle Week Lecture topic Forum work Notes Presentation topics to be chosen 1 Australian labour law and the employment relationship Introduction, administration, and discussion 2 Setting minimum labour standards Presentations/participation 3 Making enterprise agreements Presentations/participation 4 Freedom of association and the right to strike Presentations/participation 5 Regulating pay and hours of work Presentations/participation 6 Flexiweek 7 Regulating equal opportunity Presentations/participation 8 Employee privacy and the law: drug screening and social media Presentations/participation 9 Dispute resolution and termination of employment Presentations/participation 10 Supply chains, human rights, and global labour Presentations/participation See instructions below for more information about class work tasks Please see the Course Outline for a detailed overview of the course. Here are more specific instructions about course work: please read carefully. MGMT3701 lectures and tutorials will run live on Collaborate – see above for times. In Week 1, every student will nominate one ‘essential reading’ to present to their tutorial class using Powerpoint slides. Further details are in the Assignment Guide. For Week 1 discussion only, the questions below will be debated. Presentations will begin in Week 2 so, if you want to present in the early weeks, please start reading for your topic from Week 1. Choose wisely, considering when other assignments are due etc. Non-presenters should read at least one (1) of the presentation readings. There are also short class discussion readings in this Guide that will help to illuminate the relevance of the academic readings. If you are time poor, these articles will help you get more out of your tutorial/forum than reading nothing. Students are expected to participate in class debates to earn their participation marks. Attendance is not compulsory, but non-attendance will make it impossible to earn participation marks. All readings noted in this guide are there for your interest and assessment task preparation. It is a requirement of this course that students read the readings suggested for this course – either in this guide, the Supplementary Reading Guide, Moodle or Leganto – to prepare their assignments. Use of irrelevant, out-dated, or ‘double-dipped’ sources from other courses will have a negative effect on your marks. business.unsw.edu.au CRICOS Code 00098G 1 Course readings: The prescribed textbook for this course is: Andrew Stewart (2021) Stewart's Guide to Employment Law, 7th edition, Federation Press. It is not required that you buy this book, but you should make sure to access similar content from other sources if you do not. The principal industrial relations journal in Australia is the Journal of Industrial Relations (JIR). JIR contains useful annual reviews of developments in wage determination, trade unions, employers and legislative changes. You might also consult the Australian Journal of Labour Law. You are encouraged to read widely and should not feel that reading the textbook will be sufficient to gain a full appreciation of the material discussed. Links to the readings listed here may be in THREE places – here in this Guide, on the Moodle site under Reading List, or in the Moodle weekly topic sections. Most are also directly downloadable from the UNSW Library – if a Moodle link fails, simply go to the Library catalogue to search for the reading/s you want. You can also consult the Supplementary Reading Guide for suggestions of additional readings for your interest/assignment preparation. Most importantly, make sure you note the time of writing of any source on employment law or industrial relations. What was true at the time of publication may have changed since then. Please note: Students who are new to studying employment matters, new to Australia, and/or those who have not completed MGMT2705, may like to look at some introductory readings to become a little more familiar with the terrain we will discuss in class. I recommend: M. Bray and A. Stewart (2013) ‘What is distinctive about the Fair Work regime?’, Australian Journal of Labour Law, 26 (1): 20-49. S. Kaine (2020) “Australian industrial relations and COVID-19”, Journal of Australian Political Economy, 85, Winter: 130-137. V. Lambropoulos (2013) ‘The evolution of freedom of association in Australia’s federal industrial relations law: from trade union security to workplace rights’, Labor History, 54 (4): 436-458. Two of these readings are required reading for their respective weeks so are not ‘extra’ reading in that sense. However, reading them at the beginning of the course may help you to become familiar with the history and context of matters we will be discussing. Please ask teaching staff if you have any questions after reading them. Your questions will add meaning and relevance to our shared discussions. business.unsw.edu.au CRICOS Code 00098G 2 Internet resources There are a number of websites that include information and views on employment matters. These should be used with the same critical caution as any other source, particularly as most to them are established by organisations with specific interests to protect and promote. You might visit the websites of the following organisations, for example: Australian Council of Trade Unions: http://www.actu.org.au/ Fair Work Ombudsman: https://www.fairwork.gov.au/ Fair Work Commission: https://www.fwc.gov.au/ The International Labour Organisation: http://www.ilo.org/global/ Business Council of Australia: http://www.bca.com.au/ Australian Chamber of Commerce & Industry: www.acci.asn.au Retail Traders Association: https://www.retail.org.au You will also be expected to demonstrate initiative in locating further high-quality reading material relevant to topics you have chosen to research. As with all courses that are concerned with the world of work, keeping up with current events and debates is of enormous value. Important insights can also be gained from: Daily newspapers and political and economic magazines Television and radio news programmes Quality current affairs programmes on television and radio, such as the 7.30, Insiders and Background Briefing Current events will be regularly incorporated into class discussion. business.unsw.edu.au CRICOS Code 00098G 3 Week 1 Australian labour law and the employment relationship In this week, we examine the broad social function of labour law and, in particular, the ‘protective’ function it is expected by many to play. With the growth of casual and contracting arrangements, employment relationships have become more complex and the rights and responsibilities of the parties are contested. A noticeable trend – employers attempting to reduce the number of workers considered their ‘employees’ – is having a negative effect on working conditions in many industries. Can Australian labour law protect the most vulnerable workers? Questions to think about: What principles guide contemporary developments in Australian labour law? Does it protect the weak from the strong? Have there been breaks with past practice in recent years? What characteristics determine if an employment relationship exists? Introductory readings: some short pieces to get us started S. Douglas and G. Watt (2018) ‘Casual employment and WorkPac Pty Ltd v Skene [2018] FCAFC 131’, e-Journal of Social and Behavioural Research in Business, 9 (3): 10-16. ‘High Court’s Rossato decision rewrites the rules: Experts’, Workplace Express, 5 August 2021. J. de Flamingh and A. Cameron (2015) ‘Duck or rooster? Employees and independent contractors in the new ‘sharing economy’, Law Society of NSW Journal, 2 (10): 70-72. N. Bonyhady (2020) ‘Employers face huge backpay if High Court decision goes against them’, Sydney Morning Herald, 21 August, here. M. Doran and D. Conifer (2020) ‘Federal court ruling on casual entitlements could be appealed by Government as industry groups voice concern’, ABC News, 21 May, here. Press release (2020) ‘Australian Council of Trade Unions: Court confirms permanent workers cannot be casuals’, Targeted News Service, 22 May, here. J. de Flamingh (2017) ‘Employment: Parliament moves to protect vulnerable workers’, Law Society of NSW Journal, 38: 75-77. E. Willis and A. Mills (2017) ‘Lessons for employers in landmark sham contracting case’, Governance Directions, 69 (7): 419-421. K. Liu (2014) ‘Legal status of interns’, Law Society Journal, 52 (4): 61-63. See this legal advice for employers – ‘Parliament passes Vulnerable Workers Bill’, Corrs Chambers Westgarth, here. Textbook reading: Stewart, Chapters 1 – 4. business.unsw.edu.au CRICOS Code 00098G 4 Week 2 Setting minimum labour standards Former Fair Work Ombudsman, Natalie James, has said that, in her opinion, business has become ‘complacent’ about not paying workers their full entitlements. In this class, we examine how minimum standards are set and consider what should be done about fairly routine noncompliance in some industries. Questions to think about this week: What effects has the decentralisation of wage determination had on the regulation of minimum standards? What are the strengths and weaknesses of ‘enforceable undertakings’? What is ‘accessorial liability’? Should government try to regulate the ‘gig economy’? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) A. Stewart and M. Bray (2020) ‘Modern Awards under the Fair Work Act’, Australian Journal of Labour Law, 33 (1): 52-67. I. Campbell and S. Charlesworth (2020) ‘The National Employment Standards: An Assessment’, Australian Journal of Labour Law, 33 (1): 36-51. K. Minter (2017) ‘Negotiating Labour Standards in the Gig Economy: Airtasker and Unions New South Wales’, Economic and Labour Relations Review, 28 (3): 438-454. T. Hardy (2020) ‘Trivial to Troubling: The Evolution of Enforcement under the Fair Work Act’, Australian Journal of Labour Law, 33 (1): 87-106. Supporting materials: Read these articles for discussion in class groups: D. Marin-Guzman, Äustralia has world’s highest minimum wage,’ Australian Financial Review, 13 July 2019, see here. ‘Accessorial liability win for FWO as HR manager fined $21,760’, Workplace Express, 10 November 2017. ‘Watchdog making limited use of new powers’, Workplace Express, 12 November 2020. AMMA website, ‘FWO cracking down on accessories to workplace breaches’, 2 August 2016, here. TS Poon (2019) ‘Independent Workers: Growth Trends, Categories, and Employee Relations Implications in the Emerging Gig Economy’, Employee Responsibilities and Rights Journal, 31, (1): 63-69. ‘Employer disputes HR manager’s case citing alleged underpayments’, Workplace Express, 3 August 2020. Textbook reading: Stewart, Chapters 7 and 10 business.unsw.edu.au CRICOS Code 00098G 5 Week 3 Making enterprise agreements The making of enterprise agreements affects the working lives of millions of workers. In this class, we examine some of the legal parameters that affect the relationships between the parties. We examine the nature of the Fair Work Act – does it regulate bargaining in a way that is fair to both employers and employees? Questions to think about: Does regulation under the Fair Work Act encourage a return to ‘collectivism’? Given employer organisations pushed for laws to allow enterprise bargaining, why do many employers seem to have changed their minds about its merits? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) B. Creighton (2018) ‘Getting to the bargaining table: Coercive, Facilitated and Pre-commitment bargaining’ in S. McCrystal, B. Creighton and A. Forsyth (eds) Collective Bargaining under the Fair Work Act (Annandale: Federation Press), Chapter 2. R. Read (2018) ‘The role of trade unions and individual bargaining representatives: Who pays for the work of bargaining’ in S. McCrystal, B. Creighton and A. Forsyth (eds) Collective Bargaining under the Fair Work Act (Annandale: Federation Press), Chapter 4. C. Sutherland (2016) ‘Streamlining enterprise agreements to reduce complexity: An empirical assessment’, Australian Journal of Labour Law, 29 (1) :25-57. S. McCrystal (2018) ‘Termination of Enterprise Agreements under the Fair Work Act 2009 (Cth) and Final Offer Arbitration’, Australian Journal of Labour Law, 31 (2):131-156. Supporting materials: Read these articles to add to your discussion in forum groups: P. Karp (2019) ‘Workers would lose hundreds of dollars a year if pushed to non-union deals – report’, The Guardian, 29 October. What has happened to collective bargaining since the end of WorkChoices?’, The Conversation, 2 May 2016. ‘IFAs used like AWAs, says ACTU; They’re not used enough, say employers’, Workplace Express, 2 May 2012. Textbook reading: Stewart, Chapter 8. On the basis of what you’ve read, what does this cartoon mean to you? business.unsw.edu.au CRICOS Code 00098G 6 Week 4 Freedom of association and the right to strike While Australia has long enjoyed a reputation as a democratic ‘workers’ paradise’, in this week we examine the legislative limits that have been placed on union members’ ability to organise, negotiate and strike. Questions to think about: To what extent do Australian workers have a legally protected right to strike? Does our current regime help or hinder employees’ ability to take industrial action? Is a right to strike a fundamental feature of any democratic society? Is the freedom to join a trade union equivalent to the freedom not to join? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) V. Lambropoulos (2013) ‘The evolution of freedom of association in Australia’s federal industrial relations law: from trade union security to workplace rights’, Labor History, 54 (4): 436-458. N. Kimberley and S. McCrystal (2020) ‘Contested spaces: Unions and Access to Employer Controlled Space for Organising under the Fair Work Act 2009 (Cth)’, Australian Journal of Labour Law, 33 (1): 139-155. A. Orchiston, B. Creighton, C. Denvir, R. Johnstone and S. McCrystal (2019) ‘Pre-strike ballots and enterprise bargaining dynamics: An empirical analysis’, Melbourne University Law Review, 42 (2): 593-631. S. McCrystal (2019) ‘Why is it so hard to take lawful strike action in Australia?’, Journal of Industrial Relations, 61 (1): 129-144. Additional food for thought: o Read these articles and think about the claims made by the parties. Should workers’ rights or public interest take priority? o ‘Sydney train strike stopped: Fair Work Commission blocks union action’, The Guardian, 25 January 2018. o Read this article and think about the role that industrial action has played in social issues in Australia? Are Bornstein’s arguments valid? o J. Bornstein (2019) ‘Employees are losing: Have workplace laws gone too far?’, Journal of Industrial Relations, 61 (3): 438-456. ‘Rail strike off as FWC issues suspension order’, Workplace Express, 25 January 2018. ‘Court needs to impose “meaningful” penalties on striking workers’, Workplace Express, 28 November 2016. ‘Anglo’s strike-triggered redundancies not a GFB breach’, Workplace Express, 1 December 2016. S. Long (2017) ‘Have Australia’s right to strike laws gone too far?’ ABC News, 21 March. ‘Court temporarily reinstates sacked union delegate’, Workplace Express, 4 July 2019 Textbook reading: Stewart, Chapters 14 and 18 business.unsw.edu.au CRICOS Code 00098G 7 Week 5 Regulating pay and hours of work As two of the most common sources of conflict in the workplace, this class examines how pay and hours are determined and regulated. How have these elements of employment become so contested? Class questions: How are wages and working hours linked? Do wage rises lead to fewer jobs? Should there be an enforceable cap on working hours? What should the state do to protect the pay and working hours of the least powerful on the labour market? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) J. Stanford (2020) ‘The Fair Work Act and Wages’, Australian Journal of Labour Law, 33 (1): 1835 M. O'Brien and R. Markey, R 2020, ‘Labour regulation reform and sectoral employment outcomes: a case study of public holiday penalty rate reductions in Australia’, Applied economics letters, 27 (7): 559–563. N. Skinner and B. Pocock (2013) ‘Paid annual leave in Australia: Who gets it, who takes it and implications for work-life interference’, Journal of Industrial Relations, 55 (5): 681-698. R. Cooper and M. Baird (2015) ‘Bringing the ‘‘right to request’’ flexible working arrangements to life: From policies to practices’, Employee Relations 37 (5): 568–581. Supporting sources: Consider these sources about pay and working hours in class – what picture do they paint? Unpaid work (2018) World News Australia, SBS TV, broadcasted 21st November. A. Stewart, D. Oliver, P. McDonald & A. Hewitt (2018) ‘The Nature and Prevalence of Unlawful Unpaid Work Experience in Australia’, Australian Journal of Labour Law, 31 (2): 157-179. P. Karp (2018) 'Epidemic of time theft': Australians work two months' unpaid overtime a year’, The Guardian, 23 November. ABC News (2020) ‘New rules require office workers to clock in and out of work amid wage theft concerns’, 29 February, here. ACTU report, The myth of the casual wage premium, 2018. G. Sivaraman and P. Turner (2016) ‘The 7-Eleven wages scandal: The need for law reform’, Precedent (Sydney, N.S.W.), 135 (Jul/Aug): 53-56. Textbook reading: Stewart, Chapters 11 and 14. business.unsw.edu.au CRICOS Code 00098G 8 Week 7 Regulating equal employment opportunity In this class, we examine why some workers have a tougher time in the workplace than others, through historical, legal and sociological lenses. Questions to think about: What are the strengths and weaknesses of the anti-discrimination legislative arena in Australia? What must an employer do to reduce the risk of anti-discrimination litigation against his/her business? What new vistas do you see for anti-discrimination legislation? Class presentation readings: (Read at least 1 (ONE) of the following, even if not presenting.) A. Chapman (2020) ‘Part 3-1, Adverse Action and Equality’, Australian Journal of Labour Law, 33 (1): 107-121. D. Allen (2018) ‘Adverse Effects: Can the Fair Work Act Address Workplace Discrimination for Employees with a Disability’, University of New South Wales Law Journal, 41 (3): 846-870. P. Waring (2011) ‘Keeping up Appearances: Aesthetic Labour and Discrimination Law’, Journal of Industrial Relations, 53 (2): 193-207. N. Wells and T. MacDermott (2021) ‘Taking a Fresh Look at Criminal Record Discrimination’, Australian Journal of Labour Law, 33 (3): 270-293. Supporting sources: Lots can be learned from media reports, government guidelines and case transcripts. Read as many of these documents as you can and, in light of the broad principles they raise, think critically about bestpractice HR in relation to assessing suitability of applicants for employment and promotion. ‘Company reforms ways after criminal record discrimination’, Workplace Express, 15 January 2019. Australian Human Rights Commission (2012) On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record, Sydney. ‘Employer discriminated against job seeker with criminal past: AHRC’, Workplace Express, 27 June 2018. BE v Suncorp Group Ltd [2018] AusHRC 121. Fair Work Commission, General Protections Benchbook, here. K. Burgess (2020) ‘Discrimination against women in the workplace spikes during coronavirus pandemic’, Canberra Times, 9 July, here. Australian Human Rights Commission report, ‘Multigenerational workforces: a guide to the rights of older workers under the Age Discrimination Act 2004 (Cth)’, June 2019, here. Fair Work Ombudsman fact sheet, Workplace Discrimination, here. ‘More than $200k in penalties in FWO’s first racial discrimination case’, 28 May 2018, FWO website, here. business.unsw.edu.au CRICOS Code 00098G 9 Week 8 Employee freedoms and the law: drug screening and social media Considerable debate has taken place about where the line is drawn between public and private spheres, especially in relation to the workplace. In this class, we examine some fascinating cases that suggest changing application of principles governing social media use and drug testing in the workplace. This also links with next week’s discussions about termination of employment. Can you discern a ‘disciplining effect’? Questions to think about: Do employers have a legal and/or moral right to institute policies that impact on employees’ private lives and democratic freedoms? Does drug testing lead to safer workplaces? Imagine you were asked to formulate an email usage policy for your workplace. What would it contain? What would you recommend as a best-practice implementation plan? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) P. Holland (2016) ‘Drug testing in the Australian workplace: Still a contested terrain’, Journal of Industrial Relations, 58 (5): 688-696. A. Barnes, N. Balnave and P. Holland (2018) ‘‘Utterly Disgraceful’: Social Media and the Workplace’, Australian Journal of Public Administration, 77 (3): 492-499. B. van Dissel (2014) ‘Social media and the employee’s right to privacy in Australia’, International Data Privacy Law, 4 (3): 222-234. L. Thornthwaite (2015) ‘Chilling times: social media policies, labour law and employment relations’, Asia Pacific Journal of Human Resources, 54 (3): 332-351. Supporting sources: Read this article and compare it with the argument presented in class regarding Holland’s later work. What legal trends can you discern? o P. Holland, A. Pyman and J. Teicher (2005) ‘Negotiating the Contested Terrain of Drug Testing in the Australian workplace’, Journal of Industrial Relations, 47 (3): 326-338. Consider the matters raised in these articles. o J. Penn (2016) ‘’Never tweet’? Social media and unfair dismissal’, Alternative Law Journal, 41 (4): 271-274. o A. Dale (2019) “Employment: Losing my religion, losing my job?”, Law Society of NSW Journal, 58: 36-39. o ‘Police commander targeted homos-xual officers: Tribunal’, Workplace Express, 25 November 2019. Tim Wilson (2015) ‘Freedom of speech isn’t freedom from consequences’, The Drum, 28 April, here. The amazing case of Jeremy Lee and his fingerprints, Biometrics clocking on, Law Report, ABC Radio National, 21 May 2019. ‘Bench upholds factory hand’s refusal to give finger’, Workplace Express, 2 May 2019. Textbook reading: Stewart, Chapter 13. business.unsw.edu.au CRICOS Code 00098G 10 Week 9 Dispute resolution and termination of employment ‘Management’s right to hire and fire’? In this class, we examine the extent of this maxim. Class questions: Can you explain the differences between an ‘interest-based’ dispute and a ‘rights-based’ dispute? What impact has the decline of collective disputation and the rise of individual complaints had on the resolution of workplace conflict in Australia? What are the characteristics of: o Unfair dismissal o Constructive dismissal o No fault dismissal o Economic dismissal? Are there sufficient regulatory protections for employees who experience termination? What makes a redundancy non-genuine? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) L. Thornthwaite (2018) ‘Social media and dismissal: Towards a reasonable expectation of privacy?’, Journal of Industrial Relations, 60 (1): 119-136. A. Ballard and P. Easteal (2016) ‘(Alternative) dispute resolution and workplace bullying: Some pros and cons from the coalface’, Alternative Law Journal, 41 (2): 105-109. I. Ross (2016) ‘Future Directions: Enhancing the public value of the Fair Work Commission’, Journal of Industrial Relations, 58 (3): 402-418. P. Thai (2014) ‘Constructive dismissal: A re-examination’, Australian Journal of Labour Law, 27 (2): 137-162. Further ideas: Think about the layer upon layer of complexities in these cases… o ‘Employer’s direction to 70-year-old childcare worker “callous”: FWC’, Workplace Express, 6 August 2020. o David Marin-Guzman, ‘Small business group calls for halt to unfair dismissal claims’, Australian Financial Review, 3 April 2020, see UNSW Library. o ‘Reinstatement problematic after calling partner “despicable”: FWC’, Workplace Express, 5 July 2019. o A. Patty (2020) ‘UTS loses application to appeal against reinstatement of academic sacked for not publishing enough research’, Sydney Morning Herald, 9 July, here. FWC, Unfair Dismissals Benchbook, here. For an example of matters considered in an unfair dismissal case under FWA, s.394, see Michael Hatwell v Esso Australia Pty Ltd, U2017/11683, transcript here. N. Bonyhady (2020) ‘Unfair dismissal claims inundate workplace tribunal’, Sydney Morning Herald, 8 May 2020, here. Textbook reading: Stewart, Chapters 16-17. business.unsw.edu.au CRICOS Code 00098G 11 Week 10 Supply chains, human rights and global labour In our final class, we ask about the limits of Australian labour law. Can it be extended to assist workers in other countries? Should we act both locally and globally? Questions to think about: How can Australian laws help to protect vulnerable workers overseas? Should local companies face penalties for sourcing goods and services from exploitative suppliers? Class presentation readings: (Read at least 1 (ONE) of these readings, even if not presenting.) S. Clibborn (2019) ‘The politics of employment relations in a multinational corporation during crisis’, Economic and Industrial Democracy, 40 (3): 560-582. V. McDermott, K. Henne and J. Hayes (2018) ‘Shifting risk to the frontline: case studies in different contract working environments’, Journal of Risk Research, 21 (12): 1502-1516. S. Gregson, I. Hampson, A. Junor, D. Fraser, M. Quinlan and A. Williamson (2015) ‘Supply chains, maintenance and safety in the Australian airline industry’, Journal of Industrial Relations, 57 (4): 604-623. E. Schuesler, S. Frenkel and C.F. Wright (2019) ‘Governance of Labor Standards in Australian and German Garment Supply Chains: The impact of Rana Plaza’, Industrial and Labor Relations Review, 72 (3): 552-579. Food for thought: Read these articles for discussion in class groups: M. Boersma (2014) ‘Global supply chains link us all to shame of child and forced labour’, The Conversation, 30 October. ‘Woolies takes fresh approach to supply chain labour standards’, Workplace Express, 23 November 2017. ‘FWO issues warning on supply chain governance after Woolworths investigation’, Workplace Express, 28 June 2016. business.unsw.edu.au CRICOS Code 00098G 12