#13076 - Introduction - Employment Law

Topic 1: Overview

• The Fair Work Act 2009 (Cth)

  • The Act is based on:

    • Corporations power s 51(xx) AND

      • This was difficult as the corporations power only covered constitutional corporations. Now you are nevertheless covered as Cwth parliament has exercised state referred power in making laws that have a wider reach.

    • Referral by the states of their power over Industrial Relations to the Cwth under s 51(xxxvii) (not WA)

      • NSW – Industrial Relations (Commonwealth Powers) Act 2009

      • VIC – Fair Work (Commonwealth Powers) Act 2009

      • QLD – Fair Work (Commonwealth Powers) and Other Provisions Act 2009

      • SA - Fair Work (Commonwealth Powers) Act 2009

      • Tas – Industrial Relations (Commonwealth Powers) Act 2009

  • In WA, only employees who work for a ‘constitutional corporation’ are covered by FW Act. This is because WA is a non-referring state. What is a constitutional corporation?

    • s 12 of the FWA defines constitutional corporation as ‘a corporation to which paragraph 51(20) of the Constitution applies. S 51 (xx)/20 confers power upon the Commonwealth Parliament to ‘make laws with respect to…foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth

    • Foreign Corporations

      • Any entity formed under the law of a foreign country and given a corporate legal personality either by the foreign law, or by Australian law.

      • If the entity is a foreign corporation it does not need to be a trading or financial one Incorporations Case

    • Trading Corporations

      • Current activities test: It will be a trading corporation if a ‘substantial or sufficiently significant (broad) proportion of its activities compromise ‘trading’ activities’ Adamson

      • Will not be considered a trading corporation ‘if the trading is so slight and trivial’ (Mason J, Adamson)

      • Extends to all activities that earn revenue, not necessarily profit

      • Even if the primary purpose is to achieve something else if the corporations engages in trade sufficiently it is a trading corporation.

    • Financial Corporations

      • Current activities test: It will be a financial corporation if a ‘substantial or sufficiently significant proportion of its activities compromise ‘financial activities’ State Superannuation Board v Trade Practices

      • Financial activities = subject of the transaction is financial exchange (i.e. lending, borrowing or investing money, currency or funds) NOT goods and services (trading) State Superannuation Board

  • Who is a national system employee (thus covered by the Act)

    • National system employee: An individual employed by a national system employer, except on a vocational placement (s 13).

      • By virtue of ss30C and 30M, any other employee in a State that has referred the necessary powers to the Commonwealth will also be treated as a national system employee, to the extent that the relevant State legislation provides.

      • Both sections say the same thing, but s 40C covers the States which referred their powers before 1 July 2009 (only Victoria) whilst s 30M applies to States who referred their powers after (everyone else except WA).

    • National system employer:

      • (a) a constitutional corporation (b) the Commonwealth (c) a Commonwealth authority (d) a person in connection with constitutional trade or commerce or employs flights crew officers, maritime employees or waterside workers (e) a body corporate in a Territory (f) a person who carries on an activity (whether commercial, governmental or other) in the Territory (s 14). The definition is extended by sections 30D and 30N to cover any employer in a referring State, to the extent that they employee an employee (or police officer) who falls within a reference of powers. NSW, QLD, SA and TAS have each chosen to exclude their public sector agencies. Local councils in NSW, Qld and SA have also been excluded. Some have formally been declared to be non national system employees under s 14(2).

    • Summary:

      • All employees in NT, ACT

      • All private sector employees in Vic, NSW, Qld, SA and Tas

      • All private sector employees in WA who work for a constitutional corporation

  • Who is not covered?

    • Non-national system employers are primarily located in WA. They include businesses that operate as sole traders or partnerships, as well as the State government (to the extend that it employs workers directly, as opposed to through some incorporated entity).

    • Public sector agencies:

      • Where a referring State has negotiated to exclude its own public sector agencies and/or local councils from the federal system, those bodies too will be non-national system employers. Some of these might well qualify as CC’s. In order to prevent them from being subject to the FWA, they may (with the federal Minister’s consent) be formally declared to be a non-national system employer (s 14(2)-(5)). But no such declaration can be made in relation to a supplier or distributor of electricity, gas or water, an operator of a port or a rail services, or a university (s 14(6)-(7)).

      • State public sector and local gov employees in NSW, SA, Qld and Tas are not covered and remain under the state system. Some state public sector and local gov employers have registered agreements in the national system. Employees covered by those agreements fall within the national system.

      • By virtue of Division 2A, the FWA applies to all employees in Victoria with the exception of certain judicial officers or senior public servants. It also covers police officers.

• The National Employment Standards (NES) – Part 2-2 FWA

  • Div 3 - maximum weekly hours

    • An employer must not request or require an employee to work more than the following number of hours unless they are reasonable (s 62(1)).

      1. For a full time employee, this is 38 hours.

      2. For an employee who is not full time, the lesser of 38 hours and the employee’s ordinary hours of work in a week.

This calculation includes any hours of leave or absence, paid or unpaid that the employee takes in the week and that are authorised (s 62(4)).

• An employee may refuse to work unreasonable additional hours (s 62).

• To determine whether they are reasonable, take into account (s 62(3)):

  1. Any risk to employee health and safety

  2. Employee’s personal circumstances, including family responsibilities

  3. The needs of the workplace

  4. Whether the employee gets overtime, penalty rates or other compensation

  5. Any notice given by the employer

  6. Any notice give by employee on their intention to refuse to work the additional hours

  7. Usual patterns of work in the industry

  8. Nature of employee’s role and level of responsibility

  9. Whether the hours are in accordance with averaging terms under a modern award or EA

  10. Any other relevant matter

• A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. This must not exceed the hours described in s62(1)(a) & (b) (s 63(2)).

  • The hours can exceed that level if they are reasonable s 63(2).

• An employer and an award free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours must not exceed 38 for a full time employee or same as (b) above (s 64(1)).

• Div 4 - requests for flexible working arrangements

  • Employee may request change in working arrangements in certain circumstances listed in s 65(1A)

    1. the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

    2. the employee is a carer (within the meaning of the Carer Recognition Act 2010 );

    3. the employee has a disability;

    4. the employee is 55 or older;

    5. the employee is experiencing violence from a member of the employee's family;

    6. the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family.

       • s 12 Dictionary: Immediate family includes child, parent, grand-parent.

  • An employee who is a parent or has responsibility for the care of a child and is returning to work after taking leave in relation to the birth or adoption of the child, may request to work part-time (s 65(1B)).

  • To make the request, the employee must:

    • If part-time or full time: have completed at least 12 months of continuous service immediately before making the request s (65(2)(a))

    • If there are casual they must be a long term casual employee who has a reasonable expectation of continuing employment by the employer on a regular and systematic basis (s 65(2)(b))

  • Administrative requirements:

    • The request must be in writing and set out the details of the change sought (s 65(3))

    • The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request (s 65(4)). It must include the reasons for the refusal (s 65(6)).

  • Refusal:

    • The employer may refuse the request only on reasonable business grounds (s 65(5)).

  • Reasonable business grounds include the following (s 65(5A)):

    1. that the new working arrangements requested by the employee would be too costly for the employer;

    2. that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

    3. that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

    4. (that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or...