Protections Provisions - Fair Work Act 2009 - Research Paper Example

Employment Law Student’s Name Subject Professor University/Institution Location Date Protections Provisions- Fair Work Act 2009 Anti-discrimination laws have been applied to employment related discrimination since their inception (Andrades 2009, p. 3). The previous Workplace Relations Act and its predecessors were narrowed in application of ‘general protections ’ and therefore a new system was introduced by the Fair Work Act 2009 (Cth) which replicated the key aspects of anti-discrimination laws and in some cases enhanced protection to vulnerable employees and significant others. Since then, there are specific cases that have attracted a lot of attention following how the instrument of FW Act was applied in the judgement. Apart from deliberation of the general protections, some decisions that have applied to specific cases are influential and have a widespread application to other cases in similar industries or sectors of employment (Mitchell, et al 2010, p.63). As Langtree (2013, p.1), general protection regime was an expansion of the former principles of anti-discrimination and progressed Commonwealth industrial statute further under FW Act. In Chapter 3-1, the Act deals with the ‘General protections’ where in brief, they provides for protection that might arise from an adverse action or various inappropriate behaviour in relation to workplace rights and industrial activities. In discrimination section, there are fourteen listed characteristics like age, disability, race, sex, equal opportunity and anti-discrimination where the FW Act 2009 provides protection from such adverse action. The Act provides protection from any dismissal following a temporary absence of an employee from work due to prescribed illness or an injury, prohibit demanding of bargaining services fee and coercion to employ or not employ, to engage or not engage, allocate or not allocate particular duties to particular persons. Furthermore, it protects against discrimination against an incident where an employer may not offer coverage to employees and prohibit sham arrangements and many others (Andrades 2009, p. 5). Critical assessment of the decision As Billing & Cameron (2013, p.1), there were three significant issue related to employment that were raised before the High Court in line with Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 at 1 . First, the employer provided the employees with an on-site accommodation which raised a question whether the provision of such accommodation was a ‘payment’ in line with the s 470 (1) FW Act meaning. An employer has a right not to offer any remuneration to employees for the duration of the day they were involved in a protected industrial action. Mammoet depended on the clause in Federal Magistrates Court and succeeded. However, in its decision, the High Court concluded that provision of accommodation as claimed by Mammoet to employees who had engaged in a protected industrial action would not amount to payment as referred in s 470(1). The line of separation was made in reference to what constitutes ‘payment’. The judges insisted that the provision would be interpreted to mean a payment that involves money against being seen as simply a transfer of economic benefits from the employer to employees. That was a big blow to Mammoet reliance on the section to avoid accommodation costs for the period the employees were not engaged in work. Despite the fact that Mommoet had rented the building where the employee were staying, it was considered as an extended economic benefit that would not actually constitute of the payment as claimed. Mammoet was therefore meant to continue providing accommodation and not transfer the burden to the employees during that period they engaged in a protected industrial action. That decisions points on the wide coverage of the general protections and their application for the benefit of the employee. The probability of employee winning is minimal where such economic benefits are not taken as part of payment (Mitchell, et al 2010, p.67). The second issue concerned whether payment when accounting on the total duration of an industrial action and in consideration of s 470(1) included entitlements an employee receive in relation to the existence of a contract of employment instead of the actual performance of work (Billing & Cameron 2013, p.2). On its part, High Court decided that s 470(1) was directly concerned with the “strike pay”. The section prohibits payment for the total duration employees are involved in an industrial action. The focus of the clause is on the period of employment when an employee cannot earn remuneration since they are not performing the work as agreed in the contract. In Mammoet case, provision of accommodation was simply another benefit that the employees were entitled to upon their attendance on the work site. The only time the employees would not have spent on site is when the employer directed them to return according to the terms set in their enterprise agreement. Accommodation was therefore not a benefit that was tied to specific period of work but was tied to continuance of a relationship between the employer and the employees and their presence on site following the direction of Mammoet (Barnes & Lafferty 2010, p.5). In regard to the decision, it can be said that, FW Act general protections emphasizes on the ensuing relationship. That way, it is impossible for an employer to separate some aspects on the basis of application of a particular section to avoid his/her obligations. A decision can be seen to consist of what supersedes the other in the contractual engagement (McCrystal 2010, p. 39). The third issue was whether the employees’ entitlement to accommodation depended on their readiness, willingness and availability to work during the agreed working hours (Billing & Cameron (2013, p.3). For one, the decision considered that if an employee was not ready, willing or available for work (though the condition was not expressly in enterprise agreement) the withdraw of accommodation by Mammoet would just amount to an adverse action in accordance to s 342 of FW Act as it would alter the employees position to their detriment. The refusal of accommodation would not be automatically be a consequence of the law due to the conduct of employees. It is therefore seen that any action that an employee may take to the detriment of employees’ position is prohibited. There should be no action taken to put an employee in a precarious condition over what they presently suffer when opting for an industrial action (McCrystal 2010, p. 43). Decision and workable general solution The decision that was established in this case can be interpreted as the move to offer the possible protections to an employee by ensuring that, they have nothing to lose in a contractual agreement except for loss of payment following the failure to work during a protected industrial action. Any other unnecessary demands that an employee may try to establish for the employee to share in the cost incurred during the industrial action would not be acceptable (Naughton 2012, p.68). As much as there are various aspect or elements that can be claimed to constitute an agreement between and employer and employee, none can substitute the overall obligation of the employee or be used against the employee except for what the FW Act states. Generally speaking, the FW Act is narrowed to the protection of an employer and very expansive towards the employees. The decision is a generalization of any other litigation that might arise where an employee plan for economic benefits in a contractual agreements (Sutherland & Riley 2010, p.277). In actual sense, the decision might have been an aim to avoid cases where employees may be limited to take an industrial action if their ‘payment’ is diverse or allowances are counted as part of an overall pay. Employers might use such arrangements which might end up affecting the autonomy of an employee. That goes ahead to restrain any benefit that might be offered at the beginning of the contract as an incentive and end up limiting the actions that employees might take when faced with a threat. In most cases, the employer is the stronger party in the agreement and there foreseeable issue that he/she might know about the contractual engagement and potential disputed that might arise between him/her and the employees during the contract. If an employee would enforce further conditions outside what is expressed in the FW Act, then that would be unacceptable (Barnes & Lafferty 2010, p.3). That way, the High Court limited any actions or form of agreement that might be emphasized for an employee to avoid adverse effects and affects the interests of the employees. Another thing that can be seen following the decision is separation of the circumstances that necessitated an employer to offer economic benefits to the employees. If in actual sense what is offered as an economic benefit is what a reasonable person would have done due to complex and overlapping circumstances like transport costs, time of arrival or leaving from the work site, those economic benefits would not then be used against the interests of an employee. So, in case the other arrangement other than actual payment counted on day work were necessary due to fixed circumstances, the circumstances would not prevail to enforce an unnecessary demand on an employee (Bartram & De Cieri 2013, p.8). References McCrystal, S 2010, Protected Industrial Action and Voluntary Collective Bargaining Under the Fair Work Act 2009. The Economic and Labour Relations Review, 21(1), 37-52. Barnes, A & Lafferty, G 2010, The Fair Work Act: As Good as It Gets?. The Economic and Labour Relations Review, 21(1), 1-12. Mitchell, R., et al 2010, The evolution of labour law in Australia: Measuring the change. Australian Journal of Labour Law, 23(2), 61-93. Sutherland, C, & Riley, J 2010, Industrial legislation in 2009. Journal of Industrial Relations, 52(3), 275-287. Bartram, T., & De Cieri, H 2013, Human resource management: Strategy, people, performance. McGraw-Hill Education. Andrades, C 2009, December, (Langtree, 2013) Centre for Employment and Labour Relations Law . 1-7. Naughton, R 2012, 4 The Role of Fair Work Australia in Facilitating Collective Bargaining. Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective, 9, 68. Langtree, A 2013, July 26, Extensions of General protection Provisions: Fair Work Act 2009. Retrieved November 29, 2013, from MacDonnells Law: http://www.macdonnells.com.au/blog/ Billing, S & Cameron, A 2013, August 23, (Andrades, December 2009 ) High Court Finds Provision of Accommodation is not a “Payment” that is prohibited During Industrial Action. Retrieved November 29, 2013, from Corrs Chambers Westgarth: http://www.corrs.com.au/publications/corrs-in-brief/. Case Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36. Statute Fair Work Act 2009. Read More