The Federation Press

Stewart’s Guide to Employment Law

Overview

This new edition explains the changes made by the Fair Work Amendment Act 2013, including the Fair Work Commission’s new power to deal with claims of workplace bullying. It details the Abbott Government’s reform agenda, covering important changes not just to the Fair Work Act, but to legislation on parental leave, superannuation, the recovery of employee entitlements, the building and construction industry, and registered organisations. It also highlights the potential for further changes from various inquiries that have been established, as well as the first four-yearly review of the modern award system.

The text has been updated to incorporate new case law since the last edition, including important decisions by the High Court on whether there is an implied duty of ‘mutual trust and confidence’ in the employment relationship, whether employers can dismiss employees for ‘offensive’ conduct during otherwise lawful union activities, and the scope of an employer’s obligation to withhold pay from striking workers. Reference is also made to some controversial changes to State laws, particularly on the powers of industrial tribunals to set wages and conditions for public sector workers, and on the control of disruptive pickets and workplace protests.

Table of Contents

Preface
Table of Cases
Table of Statutes
Abbreviations

1. Employment Law: An Introduction

The Purpose of Employment Laws
Employment Regulation in Australia
Sources of Employment Law
Regulatory Bodies
Getting Information about Employment Laws

2. The Development and Coverage of Employment Laws in Australia

Development of Australian Employment Laws
The Work Choices Reforms
The Fair Work Legislation
The Scope of the ‘National’ System
Application of State and Territory Laws

3. Who is an Employee?

Why Employment Status Matters
Distinguishing Employees from Contractors
Avoiding or Disguising Employment
The Tax System
The Independent Contractors Legislation

4. Special Types of Employment

Casual Employment
Outworkers
Agency Labour
Trainees and Apprentices
Public Sector Employment
Voluntary Work

5. Creating an Employment Relationship

Controls on Hiring
Provision of Information
Formation of Employment Contracts

6. The Terms of an Employment Contract

Individual Contract Terms
Effect of Awards, Agreements and Statutes
Review of Unfair Work Contracts

7. Minimum Standards: The NES and Awards

Development of Minimum Standards
The National Employment Standards
The Modernisation of the Award System
Modern Awards under the Fair Work Act
State Awards

8. Enterprise Agreements

Options under the Federal System
Making an Enterprise Agreement
Regulating the Bargaining Process
Content of Agreements
Variation and Termination
Effect of Enterprise Agreements
Transitional Arrangements for Pre-Fair Work Act Agreements
State Agreements
Unregistered Collective Agreements

9. Dispute Resolution and Enforcement of Employment Laws

Introduction
Dispute Resolution in the Federal System
Compliance and Enforcement under the Federal System
The State Systems
Enforcing the Employment Contract
Insolvency and Employee Entitlements

10. Remuneration

Types of Remuneration
Wage Fixation
Minimum Wages for National System Employees
Minimum Wages for Other Workers
Pay Equity
Earning Remuneration
Payment of Wages
Superannuation

11. Working Hours and Leave

Working Hours
Public Holidays
Annual Leave
Personal Leave
Parental Leave
Long Service Leave
Community Service Leave
Other Forms of Leave

12. Control, Performance Management and Discipline

The Employee’s Duties
The Employer’s Duties
Performance Management and Discipline

13. Loyalty, Confidentiality and Privacy

Loyalty During the Employment Relationship
Post-Employment Duties
Post-Employment Restraints
Protecting Whistleblowers
Confidentiality and Privacy: The Employer’s Obligations

14. Discrimination and Victimisation

Anti-Discrimination Laws
The ‘General Protections’ under the Fair Work Act
Other Protections Against Victimisation

15. Workplace Safety

Work Health and Safety Laws
Workers Compensation
Common Law Liability for Workplace Injuries

16. Termination of Employment Contracts

Introduction
Duration and Expiry of Employment Contracts
Termination on Notice
Summary Termination
Constraints on Unilateral Termination
Termination by Agreement
Termination by Operation of Law
Entitlements on Termination
Redundancy
Effect of Insolvency on Employment Contracts
Transfer of Employment

17. Remedies for Wrongful or Unfair Termination

Remedies for Employers
Remedies for Employees
Common Law Actions for Wrongful Dismissal
Evolution of Unfair Dismissal Laws
Unfair Dismissal Claims under the Fair Work Act
Unlawful Termination
State Unfair Dismissal Laws
Other Remedies

18. Industrial Action

Introduction
The Position at Common Law
Sanctions under the Fair Work Act
Sanctions under Other Legislation
Protected Action

Glossary

Index

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