.",.,- .". 1.

Introduction:
::-- Identifying workplace
conditions

4(b). Termination of
o;eni, \ffiP10Y"", >-""-
= "::;;: .. n
2. Recruitment
·E~=!=:~ E~~ ~ ===.
~'==:::::"::'~-' ,

of
, -
oI(b). T"""""...
."0'.1,·"
___-
__0 =:-=-=-
and selection
< '.

gij~ .~:~\
.- 4(a) Employee
r
benefits -·:-·~-·":'·
E: ~ !E;,

0.--;.. .............
I ....,.......
3. Fitness

.---.* for duty

, lhe con
ll,eCOll
ll,eCOll

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1. Identifying conditions
-
contract
of employment contract supplemenls
bUI CillillOI undermine
the enterprist' agr~ment
or award

• locate relevant conditions in

legislation, awards, enterprise highest pay enterprise agreement
rate applies
agreements and contracts enterprist' agreement
overrides Ihe award,
except for pay raIl'S
• understand how these different which cannot fall below
fhe award rafe
instruments interact
award
Case studies
• We located the Assistant Lecturer
wage rate in the relevam award using
pay checker and award finder and
con finned that the enterprise
conditions in the minimum conditions of
agreement rate was higher, and
contract, enterprise NES employment,
therefore applied to Jim.
o Similarly, we identified the correct

classifications and rates of pay for

Cathy (in a call cemre) and Jan (in a
agreement and award
must be no less
favourable than the
kI ~ supplemented by the
award or enterprise
agreement and the
hardware store) and we ideillified that
Cathy was also entitled (0 anllualleave
NES contract
loading under the re levant award.

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 2. Recruitment and Selection
• excoptiu"< provide ,
defence f,,,. empl' I)"'" eg discrimination in duties of
n:~ui t<m."1S f<l.ti"~ to privacy
ITligium belief>
• <-<emption. must be advertisements, referees
"""lOW"" the lW'i,ul..
empl"y~ i ~ rov..". " f
.oj'di",rimin.tul}' interviews, • 00 oMig>t;"" to National Privacy
",,,duct
,m...".
appointment provid"
• 'mpl"Y'" h... . duty
to uk. eon: ",""en
Principles apply to
personal information
p,<\,>,ing "f...."",
{common '",'of ubtained d uring th e
toni recruitment process
direct discrimination - indirect discrimination
less fa\'ourahle - imposing
treatment based on an unreasonable Case studies
attribute, eg, failure to requi rements which
appoint a person disadvantage • ",emption/exITption 10 allow • cuntpliance with National
because of applicants with an Langdon Un;'"e rsity to "'tract Prh'acy Principle, wfoen
(eon.lo e ngineeri.'8 "ude"ts a nd dealit\g ,,;th Anhur'.
ass umptio ns about attribute suIT reference
thei r capacity to do the • applic~tion of rel igious belief. • .ppointment of Lucy Lou on a
e"epl io" to Ihe .ppoi"tmo nl of a
job based on an non-Catholit 10 Ih< position of
you th wagem-cr the 6;-ye. r
old David Buchat\an who ""a>
attribttte, eg, family Princip.>l of ~ Catholic Re.idential
~qu.lly prrp"ed to wmk fOT •
College
responsibilities, race. • "8< dis<rim ination again" Ol iwr
low wage,
Ro)..:e i>=J on =wnpt ion. about • app licah"n "fNational
hi' cap;w:i,y '0 be i"h(J\'a,i,"< Pri"acy Principle, to
• appointm<nt of . prq;nanl informatiot\obtain<d from a
interview questions or advertisements which app lic~nt '0. p<rm.n<n, or " criminal record chec k of
ono",h adm ini"ra'i'"e 1'O'i'iO" Cind)' fur appoint ment to a
indicate an intention to discriminate are call centT<.
unlawful

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 3. Fitness for Duty
safety and disability safety and the
discrimination f;,.ilun: to m,""lI< i"uo<s
>MO<ia1<d with ~ contract of
<motK>nal bbom ...y
~ ,.,... id< <.;d"n« <>f.h employment
""",f. """kinK
<",;,on.It.!
If '\
health and safe ty duty to
obligations apply under: accommodate "'" d ...y of tnul .... lru ... Dd
'" impl..J '<n. io , ''''
legislation disability under .mP'u\"nt., "'",..,' "",f><lt",,< '"'l' .. .., l>< t.-, .. ~«J
wilt" an etnpi<>y<f'. u",... on>bi<
imp"."" duty "" th<
• contract ~'o~ ... r, «>0><1"" """";b,,,,, to..,
DOA and EO Act '»,..,0(_ .... , ~., ~~ 'ojuri<>
• duty of care in tort in,bt""" I I"><'
=--
§;-=--- --=::",=::-=:--:-..•
::...-,.--~-

Case studies • unnccc ss;,ry

restrictions on a police
inherent • Ricky's target for • Qantas'. policy, officer with sickle cell
requirements ofth. travel agents (0 sell 15 based on medical mit following hi'
job defence address,,. packages per month; advice, not to allow br'-'thcr'sdc~th from""
the overlap implemented in insulin -dependent assault ,d,ere the same
response to Miriam Jiam,cics to bc night trait contributed to hi.
being diagnosed with attendants. death.
JiakkS.

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 4(a). Employee benefits
"," " '"
bonuses flexible work
•
prac:;tlces
,
,,,
• breach of express term (clear • EO Act indirect discrimination (are the employer's
conditions for the bonus must be work arrangements reasonable?)
fulfilled) • EO Act: has the employer unreasonably refused to
• breach of implied term of mutual accommodate family responsibilities?
trust and confidence • has the employe r provided written reasons in response
(discretionary bonus) to a request for flexible wo rk arrangements under the
NES?
• breach of an ente rprise
agreement
• breach of the Trade Practices Act

Case study about Richold, a

prison officer, who wanted
the policy of allocating
casual shirts to be changed to
accommodate her family
responsibilities.

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A breach of the TPA may be claimed where: An employee may also claim that
• a representation was made the manner of termination, or the
• in trade or commerce (eg pre- pre-termination investigation, or
employment) the failure to consult was a breach
of the employee's contract,
• the representation was misleading or
enterprise agreement, AWA
deceptive (individual registered agreement)
• the employee relied on the representation or the award.
• as a result, the employee suffered a loss
• Case study about Larry from

"
Linden Legal who surrered
psychological injuries following
bullying by Annie in bn-ach of the
4(b). Termination firm's safety policy and the
implied dUly of trust and
confidence.
of executives • St't' also the case slUdies in the
2009 exam

¥' ~
Executives commonly rely on: Executives may also rely on:
• express terms about notice; • breaches of the duty of mutual trust
or and confidence (but not to claim
• implied terms about damages for the manner of
reasonable notice dismissal), but in relation to
to bring claims for wrongful unreasonable conduct during
dismissal (breach of contract) employment and to establish a
constructive dismissal as a threshold
question

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.
IOn:
Equal Opportunity rules
workplace National Employment Standards (NES)
and awards and agreements made under Opportunity Act 1995 ar
the Fair Work Act 2009 (Cth) Disability DiscriminatiOi
and other eth legislation
• tuating crnplO)'
h . . f • update conditions to re flect • awards and agreements may also • advertisement equ ally in condi
• sell edmmmdl.u~ ra tes, 0 increa:>cs in minimum rates contain provisions which • interview questions and promotions and
pay an con II Ions 0 f regulate the sleps which must he arrangements training
employment 0 pa.y .
• conSider req uests for flexible taken befoTe dismissing an • setting conditions on • ac~ommodating
work arrangements employee appoil1lnlcnt disability and fa
• pre-employment medicals responsibilitieli

2. Recruitment
and selection

;s

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It Standards (NES) Equal Opportunity rules in Equal
'ements made under Opportunity Act 1995 and 2010 (Vic) and Trade Practice
)09 (Clh) Disability Discrimination Act 1992 (Cth)
and other Cth legislation
• treating employees • ensuring disniminatory treatment does not • rcpresentations made in • repn
ns to reflect • awards ~nd agreements may also • advertisement equally in conditions, lead to resignation (constnlctive dismissal) advertisements and pre- duril
imum rate~ contain provisions which • interview questions and promotions and • ensuring decision to dismiss is not based on an employment negotiations should arc l
regul~te the steps which must be arrang~m~nts attribute (direct) or based on an unreasonable not be misleading or deceptive co"e
training
:s for flexible taken before dismissing an • setting conditions on • accommodating requirement that disadvantages those with an (not
~ n ts e mp loyee appointme nt d isability and fam ily attribute (indir«t) char
• pre-em ployment medicals responsibil ities • reliance on inherent requirements ofth ... job
defence requires spe<:ific medical evidence

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in Equal
d 2010 (Vic) and Trade Practices Act 1974 (Cth)
Act 1992 (Cth)

, • ensuring discriminatory treatment does not • representations made in • representations made an employee will oft en add
ons, lead to resignation (constructive dismi~~al) advertisements and pre - during employment
a TPA claim to a breach of
• ensuring dcrision to dismiss is not based on an employment negotiations should arc unlikely to be
att ribute (direct) or based on an unreasonable covered by the TPA contract claim if there were
n(}t be misleading or deceptive
requirement that disadvantages those with an (not of a commerdal representations made
lily att ribute (indire<:t) ch~racter) during tpre-employment
• reliance on inherent requirements of the job nego tiations which have
defence requires specific medical evidence not been fulfilled

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tness
uty
Common law duties Privacy Act I!
• the common I.w impli.. 'emu intQ • the duty to maintain a safe working environment applies . ,I" 'mpl inl '<ltn '" ~''''iJ<
,he con,ract or employment from to lh. employer under ,he law of rom",.! and tort c..«:>n>bi< "OIi« of disfn i .... N~l i onal Privacy Principles apply \1
,he oomme""ement of employment • the duty to maintain a rd ationship of tru,t and f"",·iJe. •• igoif",," , I<""'d)'
rOf ««ut;,'" ,",'110 Jo"OI h>.,'< infommion obtained about job
• a dmy [0 take ca .... when "'nlid~n<:c ,,[>pli~. during th employment td.tionship
. n <lIpr... ternnboo, "OI;c. i n
I""""ring ",[ere,lCes aWl;"" (eg. bonuses) and to e'tabl ish. 3 construct;"c dismissal. but
applicants
their oontrxt of <m"",.,.",.",
under tt.. COmmon low of ,011 damages "ill not be a ...... ,ded for ,he rrumncrof dismiss:ll

appointment during employment

appointment

dismissal

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. duties Privacy Act 1988 (Cth) He
.king ~",·;r",u ... nt app1i~. • t~. impl;..,!t<nn '~pt""'"
of contract and tort ..U01U1>< ""'"'" of J .. m ..... National Privacy Principles apply [0 National Privacy Principles do not apply Ac
P'~ a 'igoifo"•• , f<nocdy
shipof\rtlstand information obtained about job to information about curren! and fonner
fo< ..... u,...,. who d<) "'" ""'"
=piO)lnCn! rd ation.hip an «prno .......boot ""'"'" in applicants employees provided the employer's use • simi]~r principles \ 0 the
conolrucll,'(: dismiss.itl. bul ,t.o;l_''''of~ of the infonnation relates to Ihe Na.tion~1 Prn'llC)' J>rincip
J< tht ,n;mne' of dism~ employmml reLationship appl)' 10 the collKuon 0'
healtk informat ion
appointment • the employer must obtai
ing employment during employment the emplo)'cc's consent,
maintain confid~ntialil)'
alLow emplO)"f'Cs access 1
dismissal dismissal the information

app
during
di

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11
:th) Health Records
iOrkll Privacy Principles do not apply
Act 2001 (Vic)
lformalion about CUm'ni and former
.1oyl'eS providl'd the employ~r's lise • simil ar principles to the • these prindplcs apply to
1t' information relates to the National Privacy Principles the col1«tion of health
,loyml'll! relationship appl}' to the colkClion of information [Of bot h job
heal th infunnation applicants and cmplo)"ffS
• t he employer must obtain
19 employment the employee 's consen t,
maintain confidentiality and
allow employtts access to
ismissal the lnfonnation

appointment
during employment
dismissal

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 • analyse the • write logically and
merits of acknowledge
particular laws sources

• apply legal • read legislation

principles to case and extract rules
studies Skills 10. - -- - -- .

._ .....__"_
•..... __
- - .-,- -- .__.
...

• read and summarise cases to interpret • read and summarise cases to

legislation (eg, what is an unreasonable extract common law principles (eg,
requirement under the indirect what is the scope of the implied
discrimination test?) ;;:'::Tw
'ro" duty of trust and confidence?)

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Assignment
Task details:
Select one of the following articles from the Australian Journal of Lahour Law
(available in Monash Library Databases from LexisNexis):

-8 Smith, 'From Wardley to Purvis - How Far has Australian Anti -discrimination law
come in 30 Years?' (2008) Australian Journal of Labour Law LEXIS 12.

-Sara Charlesworth and lain Campbell, 'Right to Request Regulation: Two New
Australian Models' (2008) 2T Australian Journal of Labour Law LEXlSz

-) Riley, 'Recellt cases: TIle Boundaries of Mutual Trust and Good Faith' (2009)
Australian Journal of Labour Law LEXIS 18

. K Godfrey, 'The Trade Practices Act Alternative', (zooS) Australian Journal of

Labour Law LEXlS 9

Your assignment should answer the following or similar questions in relation to your
chosen article. These or similar questions should be used as headings in your
discussion to assist you in structuring your work:

T.What area or areas of the law are being considered? Briefly outline the relevant law.
2.What problems associated with this law are identified?
3.What recommendations or suggestions are put fonvard to change the law
(induding changes of interpretation by the courts)?
4.Why are these issues of importance?
5.00 you agree with the recommendations put fonvard or are there possible problems
which could arise from the implementation of these recommendations?

Due date: Monday 2 August 2010 by spm.

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 location
position description
duties

contract of
employment
salary
notice of termination

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