Law Notes Employment Law Notes
Here you will find summarised employment law notes for the entire Monash University topic.
The summary notes are an excellent exam help, with steps to work through problems questions and summaries of cases. They are short enough for use in an exam, but detailed enough that you will never miss a point...
The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Topic 9: Bullying and Anti-discrimination
Bullying
What laws can deal with bullying?
Occupational Health and Safety Laws
Employer has a legal duty to provide a workplace that is safe and without risks to health
Workers’ compensation laws
Psychological injuries are covered
Crimes Act 1958 (Vic) Brodie’s Law
Provisions based on stalking
Bullying must be serious
Includes physical, psychological and cyber bullying
Up to 10 years jail
Equal Opportunity Act 2010 (Vic)
Have to show that the bullying occurred because of certain characteristics
Fair Work Act
Claim for unfair dismissal (as bullying may amount to a forced resignation)
Claim for FWC conference or Court orders under general protections (as injuring an employee in their employment is adverse action – but you would have to show that the bullying was because you had a workplace right)
Part 6-4B – express provisions regarding bullying
Common law liability
Each employer has a ‘duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury’ Hamilton v Nuroof 1956
This duty is imposed through a term implied by law into the employment contract, but it also arises through the law of tort.
Whether an employer will have breached its duty of care will depend on the facts of each case. As a general rule, however, the courts will first consider whether a reasonable person in the employer’s position would have foreseen a risk of injury to the employee
Part 6-4B FWA
This part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying s 789FA
A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under s 789FF(1)
Worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force: s 789FC(2)
Employee
Contractor or subcontractor
Employee of contractor or subcontractor
Employee of a labour hire company who has been assigned to work in the person’s business or undertaking
Outworker
Apprentice or trainee
Student gaining work experience
Volunteer
Reasonably believes: subjective test
When is a worker bullied at work?
A worker is bullied at work if:
While the worker is at work in a constitutionally-covered business, an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member and
That behaviour creates a risk to health and safety s 789FD(1)
Constitutionally covered business includes s 789FD(3)
A constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory; or the business or undertaking is conducted principally in a Territory or Commonwealth place
Doesn’t cover any employees of a non-incorporated business, charities, government departments e.g. in McInnes the Peninsula Disability Support Services was not a CCB because it did no trading
What is at work?
There must be a temporal connection between the conduct which constitutes bullying and the work
However bullying through a non-work medium e.g. facebook can still constitute bullying at work
“at work” includes being on a break – and the perpetrator need not be at work at the time they bully
Exceptions
Reasonable management action carried out in a reasonable manner s 789FD(2)
A smaller bonus does not usually constitute bullying unless it is somehow punitive Tao Sun 2014
Performance reviews: Business efficacy requires performance reviews to be conducted whenever deemed necessary by the employer Tao Sun 2014
Can’t argue that a task beyond skill level is bullying (this sort of argument would open the floodgates) Tao Sun
Emotional state may be relevant in determining whether management was performed in a reasonable manner SB
What if the bullying commenced prior to the operation of the provision?
Applicants can rely on pre 1 Jan 2014 conduct if they can demonstrate future risk. If the evidence suggests that the conduct is not going to continued, the FWC will not have jurisdiction
The FWC must deal with applicants promptly, within 14 days after the application is made s 789FE(1) but can dismiss an application if it involves matters which relate to the Australian defence, national security, covert operations or international federal operations s 789FE(2)
Compensation is not possible
Orders made s 789FF:
If the FWC is satisfied that the worker has been bullied AND there is a risk that the worker will continue to be bullied, the FWC may make any order it considers appropriate (other than a pecuniary penalty) to prevent the worker from being bullied at work s 789FF(1)
Can’t make a bullying order if the employee is sacked or has left, as bullying orders are designed to impact bullying as a continuous thing
Orders can be made against persons other than the employer
Orders can be very specific
Confidentiality of parties is protected
The FWC must take into account any grievance procedures available to the employee and any final or interim outcomes arising out of these procedures, and any other matter they consider relevant s 789FF(3)
Example of order Applicant v Respondent [21st March 2014]
If a person contravenes a s 789FF order, this is a civil remedy provision s 789FG
Anti-Discrimination - Equal Opportunity Act 2010 (Vic)
Objectives of the Act
Amongst others:
to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—
discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
equal application of a rule to different groups can have unequal results or outcomes;
the achievement of substantive equality may require the making of reasonable adjustments and reasonableaccommodation and the taking of special measures;
What is discrimination?
Discrimination means direct or...
Buy the full version of these notes or essay plans and more in our Employment Law Notes.
Here you will find summarised employment law notes for the entire Monash University topic.
The summary notes are an excellent exam help, with steps to work through problems questions and summaries of cases. They are short enough for use in an exam, but detailed enough that you will never miss a point...
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