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COML2007 Employment Law

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COML2007 Employment Law

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Course Code: COML2007
University: University Of South Australia

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Country: Australia

Question:
Chapter 10: Remuneration
Problem 2
Croc Farms Ltd runs a tourist operation as well as farming, harvesting and tanning its crocodile skins for use in the manufacture of high end leather goods. It also has a crocodile and exotic meats restaurant on its property. 
Croc Farms is having a variety of problems at the moment and wants to know which of its employees (if any) it can send home without pay while it gets its operational problems sorted out. 
1. The three crocodile wranglers are not covered by any award but are employed under individual contracts. They have been stood down because their star attraction, “King Wally” has been feeling out of sorts and is being treated by the vet and so is not available for viewing on the tours resulting in a drastic reduction in visitors to the tourist park. 
2. The staff in the manufacturing plant are covered by an enterprise agreement. The plant has been breaking down intermittently but continues to operate to 75% capacity. Management would like to close the plant for a week for routine maintenance. 
3. Restaurant workers are covered by the hospitality award. There was a case of food poisoning at the restaurant last week which happened because staff failed to keep the food preparation area clean. Management would like to punish the workers for this public relations disaster by sending them home for a week for what they see as misconduct.
Advise management where they stand. Let them know if you need more information about any of the employment arrangements and instruments. 
Problem 3
Wally is a Professor at a prestigious law school in Brisbane. He is a recognised expert in energy law. His current area of research is contracting around reliability of supply. He is often called on for comment in the media when energy policy is in the news. This means he has little trouble attracting research grants from industry and from government. 
Wally was recently accused of research misconduct by a former research assistant. Because he has such a high profile, the University has quietly suspended him on full pay with a strict instructions against making media appearances of any kind.
He has now been on paid leave for three months and the University has still not completed its investigations. Media contacts have started to ask, where is Wally? The University does not want to lose him to a competitor but cannot have him at the Campus until the investigation is completed. 
For his part, Professor Wally is concerned that being out of the media may damage his reputation. Can Wally insist on being returned to work?
Problem 4 
Kris has been working in the family motel and restaurant for three years. Her parents have been very good to her but somewhat erratic in their book keeping.
Kris has come to see you because she wants the employer and employee relationship with her parents to be on a more business  like footing. Kris is saving to get married and her parents want to sell the business in the next year so everyone wants to know the rules and have the wage books in order. They ask you for your advice about the following practices and issues. 
1. Kris is usually paid in cash, is this still acceptable? 
2. What written record should there be regarding the payment of wages? 
3. Over winter the motel can close for a month. Kris and her parents go on holidays and although Kris is paid she may not receive her pay for up to six weeks.  
4. Kris often eats at the restaurant. She gave her parents a blanket written authority to deduct the bills from her pay. She has now asked them to take her health insurance premiums out as well.
5. Last week she was accidently overpaid when both parents paid her wages. This happens a few times each year and each time they deduct the overpayment from her next pay using the blanket authority.
Chapter 11: Working hours and leave 
Problem 2 

Jane has an aged mother at home. She has been considering asking her employer to make some reasonable adjustments to her hours to enable her to get her mother to and from respite at more reasonable times. 
1. She is not sure what her rights are to ask for such flexible working arrangements. Advise her referring to the relevant sections of the FWA.
2.Is there any appeal against the decision if the employer refuses the request?
3. Assuming that her employer does not provide her with a response in a timely manner or at all what can she do?

Problem 3 

1. What does the case Koehler v Cerebos tell employers about some of the common law reasons (outside of the FWA) for giving due consideration to the effects of excessive work hours? 
2. Name another case which provides a similar perspective on long work hours and provide some details regarding its facts and outcome.
3. What are some of the relevant provisions of the FWA which regulate maximum hours and how do they deal with requests for unreasonable additional hours of work?

Problem 4

Advise the following workers from Big Ben Department Store Ltd: 
1. David has been asked to work on Christmas day this year. He has been given plenty of notice but wants to know if he can refuse to work as he has a family holiday booked. If he must work what concession should he expect? What can he do if the employer threatens him for not working?
2. Sharon has worked as a shift worker routinely rostered to work on Sundays and public holidays at Big Ben. She is not covered by any agreement or award. What is her entitlement to annual leave? 
3. James has accrued eight weeks leave at the moment. He is asking to take all of his leave in one go in September to take an overseas trip. Can he insist on this or should he be cautious in making his booking before he receives his approval? 

Answer:
Chapter 10: Remuneration
Problem 2

When it is related to the Crocs Farms Ltd. the Management has the authority to take decisions based on the Fair Work Act, 2009. In this case, the issue is whether any of the employees can be sent home without pay while the operational issues and problems get solved. As per Division 8 Section 108-111 of the Fair Work Act, 2009 can be exercised and applied by the employee. It states that notice and evidence requirements must be served. Hence, if the employees are sent home without paying then the employer should provide sufficient notice to the employee. Further Section 164 of the Fair Work Act, 2009 can also be applied based on the circumstances faced by the employees. Therefore, the Management can should serve notice to the employees if they are asked to terminate. Such a situation can also be treated as an unfair dismissal of employees.
In the given scenario, it has been observed the staff associated in the manufacturing plant is covered by an enterprise agreement. The plant therefore broke down but continued to work and operate. The Management decided to close the plant for a period of seven days for maintenance (Harpur and Burdon 2016). In these circumstances, it is the duty of the management to provide a notice stating the facts and points for shutting down the plant. It is the duty of the management to inform the staff and employees before the work.
Workers of a restaurant were charged with food poisoning. The occurrence of this situation is because the workers failed to keep the food preparation area clean. In these circumstances, the Management can exercise its power and authority based on the relevant sections of the Fair Work Act, 2001. The employees cannot ask for compensation because due to their negligence the customers had suffered and restaurant went through loss (Blanpain and Bisom-Rapp 2014).

Problem 3

From the facts of the scenario, it can be stated that Wally was on leave because a former research assistant accused him of research misconduct. He was the professor of an university in Brisbane. However, he was on a leave for three months. Those leaves were treated to be paid leaves. The image of Wally will not get damaged if he can return back to work on time. As per Section 111 of the Fair Work Act, 2009, payment is provided to employees on jury service as well. However, it can be said that Wally can return back to work after a period of three months leave. The Fair Work Act, 2009 further establishes the facts that if any employee is accused of such allegations then Wally can refer to the above mentioned act. After receiving the paid leaves, joining the University will not be a problem for Wally.

Problem 4

As per the case scenario, Kris was working with his family and running a motel and restaurant for a period of three years. The payment is made to Kris in cash. Receiving payments in cash is not acceptable as there will be no evidence on the payment. If the payments are made to the employees in cheques then it will be treated as a proof that the payment is made. Hence, Kris should not further take any payment in cash.
There must be a written record of regarding the payment of wages. Wages provided must be given in a written format because it serves as a proof of the fact that the wages are cleared to the employees (Painter and Holmes 2015). Kris being an employee of their motel and restaurant should be able to keep a track of the payment that is made to them.
In a situation when the motel is closed for a month because she will be go on holidays with her parents then she will therefore be entitled in receiving her pay for the next two weeks. This must be accepted by Kris since the motel itself will be closed and there will be no business during that time. Hence, Kris will not be able to ask for remuneration up to six weeks.
The issue of this scenario states that Kris had asked her parents to take out her insurance premium since she eats oftenly at the restaurant (Correa?Velez, Barnett and Gifford 2015). This will be not be accepted since she had already made a blanket of written authority stating that the bills should be deduct the bills from her pay. Since this was already mentioned, Kris cannot ask for this.
If Kris gets over paid by her parents then it is her duty to return it back to the parents or inform them about it and not get it deducted from her next pay by using the blanket authority as per the remuneration act.

Chapter 11: Working hours and leave
Problem 2

June was an aged mother at home. She had requested her employer for making reasonable adjustments to her working hours. As per Division 4, Section 65 of the Fair Work Act, 2009, it can be stated that in the national workplace relations systems has a legal right for requesting flexible working arrangements. An employee is eligible to ask for it if she has worked for that employer for a period of 12 months. Therefore, June will have the right to request for flexible arrangements by making a formal written request. However, the request might also be refused or rejected by the employer in writing within a period of 21 days.
If the appeal request of June is refused by the employer then she can go to the Fair Work Commission for assistance if the employer has agreed to. A conference can thereafter be held by the Fair Work Commission for finding a solution for resolving the issues between the employer and the employee. Therefore, if the employer takes any kind of adverse action against June, it will be treated to be as illegal on part of the employer because the request was made to Fair Work Commission.
If the employer does not provide with a response to June in a timely manner then she has to apply and request her employer again by producing reasonable grounds based on which the employer will look into the matter.

Problem 3

In the case of Koehler v Cerebos, the employers were informed about some of the reasons for giving due consideration to the effects of excessive work hours. The workers or employees of the company were stressed due to over time working hours as it has been mentioned in the case (Austen, Jefferson and Preston 2013). The employees working for the organization had developed a psychiatric illness that was caused to them during the course of their employment. The employee suffered from the illness due to the negligence and duty of care on part of the employer. The common law of duty for providing a safe system of work was breached. The employees anyway had to do over time and suffered the illness due to the carelessness of he employer.
Another case that provides a similar perspective on long working hours is Steven Patrick Dennis v Norwegian Refugee Council. This case discussed the facts that the employee was made to work for long hours. Long working hours result in stress among the employees. The employer is usually held liable for making them work for long stressful hours.
3. According to the Division 3, Section 62-64 of the Fair Work Act, 2009 discusses the regulation of maximum working hours of the employees. Every employee working in an organization can exercise their rights by applying the above mentioned relevant sections of the Fair Work Act. In case of additional working hours, employees can request for flexible working arrangements to the employer.

Problem 4

As per the Fair Work Act, 2009, David being an employee can request for concession if David is asked to work on Christmas even if he has provided notices to Big Ben Department Store Ltd (Cortis and Meagher 2012). After his request, if David’s employer threatens him for not working then David can sent a written complaint to the Fair Work Commission regarding the threaten. David can exercise the rights as he is entitled to them.
Sharon will be entitled to the annual leaves if she has worked routinely even on Sundays and public holidays at Big Ben. In such a situation, Section 87 of the Fair Work Act, 2009 can be applied. It states that an employee is entitled to annual leaves. This relevant section discusses that every shift worker is entitled to receive five weeks of annual leave per annum (Layton, Smith and Stewart 2014).
James wanted to take all his annual leaves at one go for an overseas trip, therefore, in this scenario Section 113 of Division 9 of the Fair Work Act, 2009 must be applicable by James. Therefore, as per the legislation, an employee is entitled to all the long service leaves in accordance with their applicable and pre-modernized award.

References:
Austen, S., Jefferson, T. and Preston, A., 2013. Contrasting economic analyses of equal remuneration: The social and community services (SACS) case. Journal of Industrial Relations, 55(1), pp.60-79.
Blanpain, R. and Bisom-Rapp, S., 2014. Global Workplace: International and Comparative Employment Law Cases and Materials. Wolters Kluwer Law & Business.
Colvin, A.J., 2014. Book Review: Rediscovering Collective Bargaining: Australia’s Fair Work Act in International Perspective.
Correa?Velez, I., Barnett, A.G. and Gifford, S., 2015. Working for a better life: Longitudinal evidence on the predictors of employment among recently arrived refugee migrant men living in Australia. International Migration, 53(2), pp.321-337.
Cortis, N. and Meagher, G., 2012. Recognition at last: Care work and the equal remuneration case. Journal of Industrial Relations, 54(3), pp.377-385.
Harpur, P. and Burdon, M., 2016. Workplace Laws and Workplace Rights Under the Fair Work Act 2017 (Cth): What About Information Privacy?.
Layton, R., Smith, M. and Stewart, A., 2014. Equal remuneration under the Fair Work Act 2014.
Painter, R. and Holmes, A., 2015. Cases and materials on Employment Law. Oxford University Press, USA.
Pekarek, A., Landau, I., Gahan, P., Forsyth, A. and Howe, J., 2017. Old game, new rules? The dynamics of enterprise bargaining under the Fair Work Act. Journal of Industrial Relations, 59(1), pp.44-64.
Stewart, A. and Stanford, J., 2017. Regulating work in the gig economy: What are the options?. The Economic and Labour Relations Review, 28(3), pp.420-437. 

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