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TOPIC 1: INTRO TO EMPLOYMENT LAW (The Need of Employment Law (Dispute…
TOPIC 1: INTRO TO EMPLOYMENT LAW
The Need of Employment Law
Protective Function
Reduces the inequality of bargaining power in the individual employment relationship and trade unions.
Democratic Function
The chance to express issues and opinions
Dignity at Work
Re distributive Function
To create balance in distribution
Dispute Resolution Function
Individual resolution
Individual disputes
Collective disputes
Functions that the employment law perform
Minimum Wage Laws
Laws providing for collective bargaining
Laws prohibiting workplace bullying
Consultation
Paid parental leave.
Sources of employment law
The employment contract
Paid Work
Legally enforceable contract or agreement
Express terms
Are those that the parties have explicitly agreed to
Implied Terms
Are terms that the parties have not agreed to, but which are still taken by the courts to form part of the contract
Common Law
Law made by courts
Basic rules for the formation, terms, performance and termination of contracts
Where parties do not include terms on certain matters, the courts will categorise the contract and imply terms into the contract
Legislation
Acts of parliament
In employment law, legislation;
Directly imposes obligation on employers
Authorises industrial tribunals to make awards
Permits registration of enterprise agreements
Prohibits employers, workers or unions from engaging in certain types of conduct.
Main statute: Fair Work Act 2009 (CTH)
Parties can deal with entitlements or standards that are superior or that are not dealt with by legislation
Modern Awards
Is a legal instrument that imposes obligations on employers in relation to matters such as pay, leave and working hours.
Legally binding
120 + awards on industry/ occupational basis
FWC make these
Collective agreements.
Sets wages employment conditions for a group of workers
It overrides any award that would otherwise apply
Generally made under the Fair Work Act 2009
May or may not involve a trade union
generally single enterprise agreements
International Law
International conventions
Aus has ratified the core UN human rights treaties
It is a founding member of the International Labour Organisation (ILO) and has ratified 58 ILO Conventions
Australian National Law
International Law matter
Aus is bound to comply with international conventions it has ratified
Australian Law
These treaties do not form part of Australia law unless they have been specifically incorporated into Australian law through legislation
International law operates as indirect source of employment law in Aus
A number are reflected in the Fair Work Act 2009
e.g right to join a trade union ILO con. 87
Protection against unlawful termination of employment ILO con. 158
Equal pay for work of equal value ILO con. 100