Employer and Employee Relationship and Disputes
Info: 5777 words (23 pages) Dissertation
Published: 10th Dec 2019
With the introduction of the federal regulation Fair Work Act 2009 and Safety Net Entitlements have become increasingly important for manager to meet legal compliance. In 2012 review of the Fair Work Act the government productivity and equality in the workplace according to the recommendations from the industrial relations legislation.
Industrial relations policy and practice in Australia has changed according to industrial relations legislation in the past two years. In 2009 the Fair Work Act 2009 was created by the government with the abolishment of work choices Amendment of the Howard government. In 2013,the workplace minister Bill Shorten suggested major changes in the elections to the workplace relations policy however workplace laws was impacted by minimal changes.
The aim of this report was to analyse six articles related to the employer and employee relationship even the industrial relations dispute with the main criteria big day for elements, parties, state regulation, collective bargaining agreements and industrial dispute discuss to resolve industrial conflict.
As the workplace regulations are changing it is the responsibility of employer to ensure if there’s an employee voice in the negotiation and consultations of staff in the workplace with union involvement however employers non union involvement (Forsyth, 2009).
This report presents finding of the six articles that presents each elements related to the industrial relations legislation and the Fairwork act 2009, safety net minimum employment standards, the union and non union collective agreement process and the union dispute. A description of each dimension and the analysis of each industrial case and the effectiveness of Fairwork Act 2009 to establish legal compliance in the workplace agreement such as non union enterprise bargaining agreements and union bargaining agreements and the identification of industrial dispute is covered in the Fairwork act 2009.
As this federal legislation is changing it is not to be understood by management with an increase in breaches in the mismanagement of employee contracts and working conditions by employers in the provision of enterprise bargaining agreement conditions.
The Fair Work Ombudsman has been used as a regulatory to ensure business establishes legal compliance in consultation of the parties with meeting National Employment Standards. Finally compliance with the National Employment Standards in the safety net is recommended to prevent further breaches by the employer.
The six articles researched focused on employment relations issues include the parties, state regulations, the collective bargaining process and the type of industrial dispute.
2.1 Article 1 Executive takes IBM Australia to court over unfair dismissal claim
In the case of IBM Australia the Fair Work Act 2009 was breached due to unfair dismissal in the common law individual contract the formal procedural rules were breached by the misuse of managerial prerogative and abuse of power for IBM to renew an employment contract(Appendix 1),(Jenkin, April 18 2017) .IBM had discriminated and breached the National Employment standards(Fairwork Australia, 2017b).
2.1.1 The Parties to employment relations
In this case the employee sale Executive of IBM is the first party and the employer is IBM. IBM unfairly dismissed an older employee and employed a younger employee to fit the individualist culture and values (Hofstede, 1984). Richrdson et al (2013) argues that younger applicants in the hiring process in the information technology industry are favourable. Discriminatory practice has increased as there is union decline in the private sector (Hyman, 2008). The Australian Capital Territory state government ensured that there is legal compliance in the individual employee contract. In addition the Fair Work Act 2009 is applied to this case to ensure legal guidelines to prevent unfair dismissal and termination in the individual agreement(O’Neill & O’Neill, 2010)
The statutory and delegated regulation is Age Discrimination Act 2004(Age Discrimination Act 2004) breached under s. 18 2a discrimination of age in the workplace. The Fair Work Act 2009 (Fairwork Act 2009) s.382 was breached as the employee was unfairly dismissed in the individual contract. Employment of younger employees in comparison to the employment of senior employee has led to discrimination in the workplace and breaches to the anti discrimination act 2004 (Richardson, Webb, Webber, & Smith, 2013).
2.1.3 Collective agreement-making processes
In the collective bargaining process the non union individual contract, was legally enforceable and negotiated as an individual contract by the agents, employee and employer (Kelty, 2012). As a common law contract, the scope is to provide the safety net under the fair work commission and National Employment Standards.
In this organisation union density has declined due to the role of management (Appendix 8) (See Figure 1.1), as innovative work practices are in place for example IBM’s flexible workplace arrangements however there is limited employee voice (Hyman, 2008) and increase misuse of managerial prerogative (Rose, 2002). The employer could have address the conflict of the individual contract by notifying the employee of their right to negotiate terms with a written notice and notification before dismissal of employment (Cooper & Ellem, 2008).An agreement offering the employee with flexible workplace arrangement could have been agreed upon however the employee was not provided with an opportunity to recommence employment and the fair work ombudsman had participated in the employer negotiations for compensation to the employee in breach of unfair dismissal.
The industrial conflict is related to the age Discrimination breach of the individual contractual agreement of the workplace. IBM’s refusal to provide negotiations with the employee due to organisational restructure.As a result the employee was discriminated against.The organisation could have provided training and flexible arrangement to ensure there was equal opportunity in the hiring decision process.
2.2 Article 2 Fair Work Ombudsman sues firm over maternity leave ‘bias’
The Fair Work Ombudsman had assisted a pregnant employee that was unfairly dismissed of claims to seek maternity leave and parental leave.
2.2.1 The Parties to employment relations
In this case the parties are the sales executive Diana Lindsay in the gourmet food distribution and the employer is Denzil Godfrey of Austrend in Australia (Ewin Hannan, March 20,2017). This employee has a non union Enterprise agreement (Appendix 2).
The state and delegated regulations of the Fair Work Act 2009 (Fairwork Act 2009) was breached under Section 70 in the National Employment Standards provision of parental leave and maternity leave. The managerial prerogative was misused to unfairly treat this employee due to gender and status resulted in penalties for breaches to the Fairwork Act 2009(Rose, 2002).
In the Fair Work Act the employee was unfairly dismissed as a constructive dismissal due performance issues without consultation in constructive dismissal (MauriceBlackburn, 2017). Furthermore there is a limited union presence in workplace due to increase protection by the enterprise bargaining agreement (Benson & Brown, 2010)
In the Equal Opportunity act 1984 (Equal Opportunity Act 1984) s.28 it is unlawful to discriminate against a pregnant woman, furthermore under the Sex Discrimination Act (Sex Discrimination Act 1984) s.31 it is unlawful for a person to be discriminated against on the grounds of sex related to pregnancy and childbirth or breastfeeding.
2.2.3 Collective agreement-making processes
In the non union collective agreement that is legally binded by the courts and the fair work ombudsman. In this agreement the agents are the employee and the employer in negotiating terms of employment. The scope in the safety net is covered by the Fair Work Commission in this case the entitlements were withheld by the employer as a result the employee is taking legal action (See Figure 1.2)(Appendix 9).In the coverage there are legal compliance concerns of the national employment standards due to the decrease in union density in this industry and absence of union delegates due to employee self representation and protection by the enterprise bargaining agreement. The employer notified the employee with a written notice about performance issues however the notification time was not specified.
2.2.4 Industrial conflict.
In the industrial conflict constructive dismissal of the female employee, led to penalties. According to Burdett Williamson (Baird & Williamson, 2010) females are discriminated with low wages(Baird, Cooper, & Ellem, 2009). Employers are reluctant to involve employees in the consultation process causing dissatisfaction in job roles. (Holland, Pyman, Cooper, & Teicher, 2011).The employer’s refusal to use good faith bargaining to assist in negotiations of provision for maternity resulted in penalties of $10,800 to the manger and the company received penalties of $54000 per contravention by the fairwork ombudsman.
2.3 Article 3 Fair Work inspectors to audit 1600 hair and beauty salons
The Fair Work inspector has audited the hair and beauty industry across Australia because of breaches to the Fair Work Act 2009 due to non compliance practices and the definition of an employee across this industry.
2.3.1 The parties to employment relations
In this case the beauty salons located in New South Wales Victoria and Queensland employed workers from migrant backgrounds in the hand beauty industry (Patty Anna, April 4 2017). These workers have consulted with employers under the award for higher wage rate and the removal of penalty rates however they are not currently covered by the union hairstylist Australia and the Australian Workers Union (appendix 3).
The statutory and delegated regulation is the breach under the Fair Work Act 2009 (Fairwork Act 2009) s.357 employees interpreted as independent contractors and for the underpayment and increase of penalty rates.
In the Fairwork Act 2009, the national Employment Standards and modern award are breached in s.134 to provide remuneration on the weekend and penalty rates. According to Jefferson and Preston (2010) the award can be reinforced in the workplace by the union delegate including the employer and the employee to establish working conditions in the award.
2.3.3 Collective agreement-making processes
The non union collective agreement is legally binding by the employer and employee under the National Employment Standards (Fairwork Australia, 2017b). The agents are the employees the employer however unions and the Fair Work inspectors have intervened due to non compliance. In the hairdressing industry the organisation level agreement is a single contractual agreement between the employee and employer however contractual provisions are withheld by the employer.The scope is in the breach of below the minimum wages in the national employment standards (Kelty, 2012). As a result union’s density coverage has increased due to non compliance in management (Appendix 9).
The employer had the right to inform the employee of representation or self representation in the good faith bargaining negotiations and consultation in the agreement for repayment. However the fair work ombudsman has intervened to resolve underpayment(appendix 9) and employer breaches under the enterprise bargaining agreement, including withholding provisions and entitlements due to the employees (Goodwin & Maconachie, 2011).
In the industrial conflict the dispute of hairdressing staff misrepresented as contractors, caused employees to participate in illegal activities such as stealing wages and increased absenteeism. Employers will experience higher casualisation, levels of labour turnover and absenteeism for breaches to minimum wage rates received in the hairdressing industry (Barnes, MacMillan, & Markey, 2013). However the hairdressers in a non union collective agreement if decided by the fair work ombudsman are eligible for the transfer to a union collective agreement can initiate protective industrial action.
2.4 Article 4 Australian Education Union pushes through industrial agreement at delegates’ meetings
In the education department of Victoria teachers have consulted with the education Union in industrial agreements and delegate meetings to improved funding and working conditions. The unions were found to be ineffective.
2.4.1 The parties to employment relations
The parties are the Australian education Union and the employees are the teachers department of education and the community(our reporters, May 16, 2017). The employer is the Department of Education Victoria. Union based collective agreements are covered by the state government and the educational award Victoria. The teachers have decided to support an independent review (appendix 4), in negotiation with consultation of community groups that include parents in support of school practices(Ellem, 2015).
The statutory and delegated regulations is the Fair Work Act 2009 (Fairwork Act 2009) is in breach to be represented by the union, under section however teachers are not satisfied. The education services teachers award 2010 (Fairwork Australia, 2017a) and the modern award is part of the education award Victoria in the teachers industrial agreement that is consolidated with the Fair Work Act 2009.
2.4.3 Collective agreement-making processes
As the union based enterprise bargaining agreement is part of the education award (Fairwork Australia, 2017a) it is legally binding between the agents such as teacher’s employers and the unions. This is a single user agreement based on an organisational level across the educational industry. The scope is to the breach of the pay rate and working conditions of teachers ,however they are seeking an independent enquiry with community groups (Ellem, 2015). In the coverage a recent increase in union presence in the state education government due to the workplace culture has increase non-compliance however Butler (2009) argues that employees are not guaranteed with protection in non union collective agreements The department of education has encouraged teachers to represent themselves, for access to increased teaching resources in schools. In the union based enterprise negotiations the teachers can use goodwill negotiation to improve wage entitlements. As this is a union based enterprise bargaining agreement, unions can consult with the fairwork ombudsman to remedy the situation with an independent enquiry by the community groups (Ellem, 2015).
In the industrial conflict the shortage of teachers in the education system and support of working entitlements (Appendix 9). Employees are not provided with resources as a result these increase absenteeism. Employer will be required terminate teacher employment due to high labour turnover rates. Furthermore, teachers will be affected by loss of wages and internal conflict may arise due to increased union delegates and employees may feel insecure about jobs and seek employment in other industries.
2.5 Article 5 Inner west Sydney bus drivers strike in response to privatisation
In Western Sydney bus drivers took strike action against the decision to privatise public services offered to the community that could result in job losses.
2.5.1 The parties to employment relations
The parties are the bus drivers and unions that have taken strike action with a state government(Australian Broadcasting Corporation, May 19, 2017), due unsatisfactory working conditions provided by the department of Transport(Appendix 5).
In the state regulation, the Fair Work Act 2009 (Fairwork Act 2009) is in breach under s.117 termination of the contract under a new operator in the Australian Industrial Relations Commission.
Furthermore there is a breach to taking on strike under section however Hodson (2001, p. 14) believes that employees should be encouraged to attend work despite industrial dispute. In the Industrial relations Reform Act 1993 limited strike action based on the enterprise bargaining agreement with the successful negotiations and consultation resulted in compensation (Cooper & Ellem, 2008).
This breach can lead to unfair dismissal or termination according to the union collective agreement; however employees taking protected industrial action can lead to the loss of working hours (O’Neill & O’Neill, 2010).
2.5.3 Collective agreement-making processes
The legal status industry Enterprise agreement is that is covered by the Fair Work Act 2009, agents that are the State transport government, bus drivers and unions. There is a single level organisational agreement between the employer and union representation. The scope is related to the dispute between the employee performance and decision to privatise the organisation that could lead to unfair dismissal (Fairbrother, Svensen, & Teicher, 1997). The coverage of the organisation is that it has an increased amount of union delegates with union base collective bargaining agreements are reviewed due to the decision privatise employees feel insecure due to the high level of jobs instability (Australian Bureau of Statistics, 2008). To resolve this management conflict in the enterprise bargaining agreement process, the employer informs union delegates in consultation with the employer to negotiate legal terms in the fair assessment of the performance of the bus drivers. Furthermore goodwill negotiations with a union delegate to improve workplace performance and t work conditions will contribute to a positive work environment and have greater access to service to public.
In the industrial conflict the bus driver’s dispute to privatise the Department Transport Services due to increasing complaints received from the public. Employees have taken strike action and increased absenteeism from a large amount of work in participating is protective union action. Employers experienced a high level of turnover placing employees at risk of being terminated for refusal to perform work duties.
2.6 Article 6 Coles worker could bring down enterprise bargaining system if wage challenge is successful
A Coles workers award was change from the enterprise bargaining agreement and resulted in the loss of wages furthermore there is a review into the boot system(Worplace Information, 2017).
2.6.1 The parties to employment relations
The parties are the Coles worker and the business council of Australia and the ACTU shop distributive and allied employees association seeking a change from the award to enterprise agreement (Probyn Andrew April 17, 2017). As this is a union based collective agreement, unions represent employees at Coles (Appendix 6) due to a breach in the employee related procedural rules (Appendix 9). The Coles worker claims changes to the award from the union enterprise bargaining agreement resulted in the decrease of her wages and the boot test was misinterpreted.
There boot test did not accurately present the benefits to employees under the award and the Enterprise agreement. Coles had failed to inform employees of the risks of using a boot test and underpayment of wages, as part of its bureaucratic controls to manage employees (Callaghan & Thompson, 2001).
In the state regulation the Fair Work Act (Fairwork Act 2009) under s.193, was breach by the boot test in the retail award and Enterprise agreement 2011.There is a breach of substantiate rules in penalty rates and a decrease in wages, furthermore the employee has appealed to the productivity commission for the reinstatement under the retail award and review of the boot test to meet regulatory requirements (Stewart, 2009).
2.6.3 Collective agreement-making processes
In the legal status of the union collective bargaining agreement parties can take legal action. The Agents are employees, employer and the workers union that have participated on in a single organisation agreement.
In the scope the dispute relates to all parties affected by the boot test inaccuracies, under the union enterprise bargaining award. Furthermore employees in the modern award were underpaid and disadvantaged with penalty rates.
The union density coverage has increased due to job insecurity in the enterprise bargaining agreement (Appendix 7) (Reynolds Emma, April 16,2017). This employee has represent herself in court however there has been an increase in union delegates due to increased enterprise bargaining agreement . This employee request for a review of eligibility in enterprise agreement to gain access to provisions and entitlements due to disadvantage(Willman, Bryson, & Gomez, 2006).
2.6.4 Industrial conflict.
In this industrial conflict coles and the employee have disputed the award and the union based enterprise bargaining agreement 2011, in the interpretation of penalty rates in the retail award. As a result of earning $33, 00 less the employee is challenging the productivity commission to overturn penalty rates and to increase wages despite working in award hours. The employee had refused additional work hours based on the award however the minimum wage compliance should be applied after good faith negotiation by the fair work ombudsman. The employer has incurred a higher labour turnover due to increased absenteeism and casualisation, with lower wage rates.
The Fair Work Act 2009 plays a large role in determining the compliance of minimum wage conditions in the National Employment Standards Across all Industries. In light of the changes from the work choices act to the federal Fair Work Act 2009 the employees national minimum standard was breached by the employers regarding contractual agreements in wage conditions in it enterprise bargaining agreement.
The six cases related to the current day industrial relations system and employment contract agreement in Australia presented the in four elements of an employee relation approach are discussed in this report. Each element had effectively analysed the Australian industrial relations standards in examining compliance with Safety Net Employment Standards and has proven effective in examining a resolution towards a positive outcome.
As the parties have the industry and organisational knowledge in consultation and negotiation with industry wage disputes, it has proven effective in meeting legal compliance. In particular, consultation and negotiation was effect in resolving conflict of wage conditions.
As the state regulation of individual industrial matters vary across industries and territories and are harmonised in Australian industrial relations legislation. Industrial dispute regarding wages have increased due to the lack of compliance to meet minimum standards, the fair work ombudsman has effectively implemented legal compliance guideline have been adhere to the organisation.
The organisation’s management prerogative should be proactive in a consultative approach to understand the needs of employees and the regulation that govern working conditions. However the collective bargaining process recommend consultation between the respective parties in the four elements of compliance standard sand to manage conflict leading to less legal liability and union involvement.
Successful organisations are known to integrate the Fair Work Act 2009 National Employment Standards in work practices and encourage employee voice and consultation with unions, employee associations and community groups.
Finally employers and unions should keep up with changes to regulation to meet legal guideline in management practices of employees. Furthermore this awareness of employee rights in the workplace will effectively recognise the number of wage disputes and promote better work conditions.
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