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Chapter 21 - Employment law. At the end of this chapter you should understand: the types of business organisations and industry sectors in Australia, the importance of employment law in the commercial sector, the distinction between public-sector and private-sector employers,...
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Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev 2-1 Employment law Chapter 21 Copyright â 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-2 Learning objectives At the end of this chapter you should understand: • • • • • • • • the types of business organisations and industry sectors in Australia the importance of employment law in the commercial sector the distinction between public-sector and private-sector employers the major features of government administration and publicsector employers the legal characteristics of both an employer and an employee the legal principles used to determine if an employer–employee relationship exists how to distinguish an employer–employee relationship from other work arrangements involving independent contractors how to compare and contrast the rights of employees and contractors Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-3 Learning objectives (cont.) • the impact that outsourcing and the use of labour-hire companies have on the employment relationship • how to recognise the employment relationship as a contract and explain the elements of that contract • the legal duties of employers and employees, both express and implied, and the sources of those duties • how to distinguish between common-law and statutory duties of employers and employees • the legal impact of duty statements and job descriptions • the legal remedies available for breach of an employment contract • the rights and obligations of employers and employees to terminate the employment relationship • the scope that employees have to recover unpaid employment entitlements on the insolvency of their employer Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-4 Learning objectives (cont.) • • • • • • the remedies available to an employee arising from the termination of employment the operation of the statutory unfair dismissal jurisdictions and their interrelationship with common-law principles of employment law the liability of an employer to third parties for torts and crimes committed by employees what the concept of ‘vicarious liability’ means in the employment relationship key rights and obligations of employers and employees for work-related injuries, occupational health and safety, equal opportunity, superannuation and information privacy, and the sources of those obligations Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-5 Introduction An important and distinctive component of Australian business law is employment and workplace relations law •Employment law primarily deals with the individual relationship between an employer and an employee—the employment contract •Workplace relations law concerns the broader legal framework that affects individual employment contracts, such as the systems and bodies that regulate wages and employment conditions Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-6 Structure of business organisations • Public sector – Federal – State – Local • Private sector • Types of industry – Primary sector – Secondary sector – Tertiary sector Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-7 The employer–employee relationship • Recognised by law as being a contract of employment • The existence of this relationship is central to both employment law and workplace relations law • Rules have developed for establishing the relationship • Distinguished from other legal relationships such as: – Independent contractor: contracts for service – Agent: makes a contract on behalf of another with a third party Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-8 Court-made rules to identify employment relationship • Control test—nature and degree of control able to be exercised by a person over the manner in which the work is to be performed by another • Delegation test—discretion of service provider to delegate work to another party • Business test—commercial factors showing whether working on own account or for someone else • Integration test—is the work being performed an integral part of the business operation of the person engaging the services of the worker? Pragmatic testssee next slide Copyright â 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-9 Pragmatic tests • Ownership of tools, equipment or stationery • Method of remuneration • Payment of superannuation, insurance or workers’ compensation • Deduction of PAYG income tax • Use of business name or business structure • Ratio of money spent to money earned after deduction of expenses • Whether invoices must be submitted prior to payment • Responsibility for losses or for rectifying errors or mistakes in the quality of work done • Freedom to work for other people • Whether the work is simply an identifiable job for a specified period of time Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-10 Examples of statutory regulation of employment relationship • Workers’ compensation • Occupational Health and Safety • Discrimination and equal opportunity legislation • Occupational superannuation Workplace privacy Copyright â 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-30 Workers’ compensation • Federal and state legislation • Provides wage and salary maintenance and prescribed benefits for injured workers, e.g – Pensions – Lump sums – Medical expenses Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-31 Workers’ compensation— coverage • Work-related injuries • 'Worker' as defined in legislation • Insurance obligations: – Mandatory workers’ compensation insurance required by employers with 'WorkCover’ Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-32 Workers’ compensation— employee benefits • Weekly benefits for initial period • Medical and hospital benefits are covered • Economic and non-economic losses, (usually based on impairment levels or estimated future earning capacity) Retirement provisions Copyright â 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-33 Workers’ compensation— obligations Employer’s obligations are to: •cooperate with rehabilitation programs •keep the employee’s position open for a specified period •provide suitable alternative employment where practicable •keep records Employee obligations are to: •make reasonable efforts to return to work Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-34 Workers’ compensation (cont.) – Common law access: depends on relevant legislation – Dispute resolution: depends on relevant legislation Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-35 Occupational health and safety • At common law, employers have an implied duty to protect the health and safety of employees • Employer owes a duty of care to employees • These laws have been supplemented by specific occupational health and safety legislation that expands the common-law obligations Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-36 Duty of care Employer • Maintain a safe working environment • Maintain plant and equipment in a safe condition • Provide training and instruction to employees on workplace safety, and provide supervision of employees • Maintain safe systems of work Employee • Wear safety equipment supplied by the employer • Follow lawful and reasonable safety policies determined by the employer • Take reasonable care to prevent injuries to fellow employees Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-37 Discrimination and equal opportunity legislation (federal) • Human Rights and Equal Opportunity Commission Act 1986 • Equal Employment Opportunity for Women in the Workplace Act 1999 • Racial Discrimination Act 1975 • Sex Discrimination Act 1984 • Disability Discrimination Act 1992 • Workplace Relations Act 1996 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-38 Types of discrimination • • • • • • Race Sex Marital status Pregnancy Sexuality Political or religious belief • • • • • Disability Physical impairment Intellectual impairment Age Family responsibilities Also note prohibition against sexual harassment Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-39 Discrimination and equal opportunity complaints and disputes Conciliation resolution at disputes Tribunal Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-40 Affirmative action • Equal Employment Opportunity for Women) Act 1999 (Cwlth) • Employers with 100 or more employees must: – develop and implement an equal opportunity program – take measures to promote equal opportunity for women in employment matters – regularly report to a statutory office holder on the development of these programs Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-41 Age discrimination • In July 2004 federal parliament enacted the Age Discrimination Act 2004 (Cwlth) • This outlaws both direct and indirect discrimination in employment on the grounds of age • There are important qualifications and exemptions Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-42 Occupational superannuation • To fund and maintain living standards for an ageing population in the future • Requires employers to make superannuation contributions on behalf of their employees at a prescribed percentage of the employee’s wage or salary, as defined by the legislation, to a complying fund – Rate since 2002–03 = 9% Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-43 Workplace privacy • In December 2001, new Commonwealth laws came into operation that impose privacy obligations on private sector organisations • They regulate the manner in which private sector organisations (including employers) handle ‘personal information’ • Ensure that collection, security and disclosure processes are compliant Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-44 ...Employment law Chapter 21 Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev • 2-2 Learning objectives At the end of this chapter. .. consent • Legality of object: – Restraint of trade Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev • 2-1 4 Terms of the employment... relationship of trust – To ensure the safety of employees Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev • 2-1 6 Terms of the employment