BSL202 Study Note
Handout Wk8
Constitution:
A written document that creates the country legally, and sets out the rights of the
individual
Parliament cannot pass law to the constitution.
A supreme law
Protect individual from the abuse power of the government
Australia Constitution:
1. Legislative: Make law
2. Executive Power: Run the law/the country
3. Judicial Power: Uphold the law
Constitutional Bias
Qn.: Where does the federal government get the power to pass laws relating to
employment/workplace?
Answer:
Section 51(20), the corporations power
If there is conflict between federal parliament and state court, Section109 of the
constitution, federal overwrites the state law.
Cite case New South Wales v Commonwealth (2006) (Slide 4).
Fair Work Commission
Explain the function/powers of the Fair Work Commission.
Answer:
Power to set a safety net of minimum wages (a National minimum wage order sets
minimum wages for adult national system employees and special minimum wages for
juniors, trainees and employees with a disability. It also sets a loading for casual
employees not covered by modern award or agreement) and employment conditions
(National employment standards)
Facilitation of enterprise bargaining and approving collective, or enterprise, agreements
Monitoring and sometimes stopping industrial action
Assisting in the resolution of particular disputes
Hearing disputes over termination of employment
Controlling the rights of entry of Union officials
Fair Work Ombudsman
Educating employers & employees
Takes complaints from employees and other workers about their work and attempts to
deal with them by providing information, making investigations and otherwise assisting.
Seeks Employer compliance with awards & NES
Operates a helpline service and provides a large amount of online information about
employee rights and employer obligations
Provides fact sheets and best practice guides for the benefit of both employees and
employers and, in particular, for smaller employees.
Can inspect workplaces with a view to investigating a complaint by interviewing people,
accessing records and documents, making copies and taking samples of goods and
substances. When inspecting, the inspector is authorised to enter workplaces to view
work, objects and processes, without the permission of the employer, and to require
production of documents if they are not voluntarily produced.
Provides dispute resolution service, infringement notices and requests for enforceable
undertakings.
Initiate proceedings
Represent employees
Federal Circuit Court (Slide 10)
Enforces minimum wage & National Employment Standards & other workplace
regulation
Interprets & enforces awards
Union rules & elections
General protections dismissals & unlawful terminations
Judicial power exercised by these Courts illustrates the separation of powers doctrine
recognised in the Australian Constitution, because the exercise enforcement functions
only.
FWC cannot enforce the legislation it implements, or the modern awards it maintains, or
the enterprise agreement it approves. It creates rights in many of its operations, which is
largely legislative activities. While it is empowered to resolves certain disputes, it has
little power to force compliance or penalise those who do not comply with the rights
created by dispute resolution. The courts perform this function.
Remedies awarded by the courts include orders, injunctions and declarations in addition
to the penalties provided by legislation
Federal Circuit Court has a small claims procedure for claims of compensation less than a
prescribed amount. It is not bound by any rules of evidence and can act in an informal
manner and without regard to legal form and technicalities.
Courts is independent, separate from government and parliament.
*Contract is common law
*Legislation overwrites common law
Handout Wk9
Use enterprise agreement: Working condition based on who your employer is [Apply on
different employees working for the employer]
Award: apply to people on a particular traits or profession [does not depend on who is the
employer but is based on the profession]
Conditions of enterprise overwrites the Award.
In Award, Look at the various clauses it contains
Minimum Clauses for Modern Award:
A2- Coverage Clause
A2-5 – Flexible Work Arrangements
A2-11 – Procedures for consultation, Representation and dispute settlement
What is the role of the award, Refer to Slide 2.
Dispute Resolution
Conciliation - Fair work commission take active action to mitigate the dispute
Key words:
*Tribunal – A body established to settle certain types of dispute. (Arbitration board)
*Arbitrate are external parties e.g. FWC to make decisions on behalf
Enterprise Agreement
Example of Questions: What is the requirement for negotiating enterprise agreements?
Either employer or employees wants the enterprise agreement.
Draft enterprise agreements given to all employees to know if is of their best interest,
employees vote then submitted to fair work commission to vet through -> approved then it
becomes effective
What are the mandatory terms to be included in the enterprise?
What are the considerations in the
How does the Fair Work Commission approve the agreement?
To test the agreement whether it fulfils the mandatory terms:
Individal Flexibility
Consultation
Dispute resolution
And does not have prohibited terms
Better off overall test
Employee must be better off overall if the agreement applies
Employee approached the employer for an enterprise agreement.
Can union make a complaint to the FWC (Fair Work Commission)?
Example of question where the employer does not actively take part in the negotiations.
Highlisht how susan can complaint to FWC:
B-14 Bargaining Processes.
Both employers and employees must take part in Good faith bargaining, simply just
cooperate (Slide 35-36)
Referring to the checklist; Question on negotiation of enterprise agreements:
Checklist (Refer to slide 36 -37) – Find the indicator of lack of good faith in bargaining.
Conclude: Employer is not engaging in good fair bargaining.
Cite Section 228(1)(e) [Slide 38] ; Employer cannot punish employees
Refer to slide 40 if employers does not follow the good faith of bargaining.
Handout Wk 10
If no permission to take action -> Industrial Action
Employees performs work from what is customary. [Slide 2]
Definition of industrial action under fair work act “any performance of work in a different
manner to how it is customarily performed.”
Application for protected industrial action (Slide 19)
