Question

Employment Law

Instructions

· You must clearly identify the question you are answering in each of your answers.

· You will be able to answer the questions based on the course materials (the text book, the Fair Work Act 2009 and the readings provided on Moodle).

Referencing

Please write your answers with reference to the relevant case law and legislation.

· When you refer to a provision in the legislation, you must cite the provision and the legislation (eg s 418 of the Fair Work Act).

· When you refer to a decision of a court or a tribunal you must reference the case name for the decision (eg Boilermaker’s Case).

· You may use ‘in text’ or footnote referencing.

Question 11000 word limit

‘Just Loafin’ Around’ is a chain of three bakeries in Melbourne. It is a private company 100% owned by Robert Croissant, who is also the manager of one of the stores. The business employs 4 apprentices, 6 bakers and 3 part-time administrative staff doing clerical work and payroll. It also has a pool of 5 casual employees who help out reasonably regularly when others are sick or during busy periods.

One of the people who works in the Melbourne payroll department is Robert Croissant's teenage daughter.

The store that Robert Croissant manages has two apprentices and two bakers. One of the apprentices, Bob ‘Choc’ Scone, is in his third year. The other, Crusty Bun, is in his first year and has eight months of service. Throughout the year there has been tension between the two, although nothing which has warranted any formal action or even a verbal caution.

During the weekend, Robert discovered both boys had been seeing his teenage daughter. He found out that this was the reason for the tension. This made Robert very angry.

Yesterday, Robert came into the store and in a fit of rage instantly sacked both apprentices without notice. He paid out their entitlements and dismissed them immediately.

Robert is a proud and traditional man. He could not stand the thought of working with two boys who had 'been with' his daughter. He felt he had no option but to dismiss them - besides, he thinks that there shouldn't be any of ‘that stuff’ in the workplace. While he doesn't have a formal sexual harassment policy, it is his opinion that fraternizing between staff is always a bad thing.

Robert has heard that Crusty may challenge his dismissal. The last thing he could afford is a big payout for unfair dismissal, especially since he will need two more apprentices to replace the ones he has lost. Despite this, having any of the employees back in the workplace would be equally as bad, in Robert’s opinion.

Mr Croissant wants to know:

1. Do the unfair dismissal rules apply to his firm? He heard something about small businesses being exempt, but does this apply?

2. Is he liable for the unfair dismissal and what would be his liability if Crusty’s application were successful?

3. What approach should he take if he wants to settle with Crusty?

Question 2 – Maximum 800 words

Thecommon law in determining who is an employee still places considerableemphasis on the concept of control.” Analyse and discuss.

Question 3 – Maximum 1000 words

Elizabeth and her fellow employees are employed by Ginninderra Apples Pty Ltd.Ginninderra Apples Pty Ltd is a constitutional corporation. The employees (including Elizabeth) are currently covered by a modern award.

In March 2012, Ginninderra Apples Pty Ltd approaches the employees including Elizabeth and it is proposed by them that the employees and Ginninderra Apples Pty Ltd enter into an enterprise agreement.

Ginninderra Apples Pty Ltd does not provide all employees with a notice of the employee’s representation rights prior to commencing negotiating a proposed enterprise agreement.

Ginninderra Apples Pty Ltd proposes to the employees that the agreement will reflect their current terms of employment with the exception of:

.(a) The agreement will provide for a 12% salary increase made up of four increases of 3% from 1 July in each year of the agreements operation;

.(b) The agreement will increase the weekly number of hours from 38 hours to 41 hours per week (the modern award provides for a 38 hour week);

.(c) Reduces the casual loading from 25% to 20%;

.(d) The agreement will provide the employees with 3 weeks’ annual leave;

.(e) The agreement will provide for 8 days sick leave per year which may accumulate for 3 years;

.(f) The agreement will provide for 2 days’ paid compassionate leave;

.(g) The agreement will provide for a 30 minute unpaid meal break each day;

.(h) The agreement will provide that employees will be paid monthly in arrears; and

.(i) The agreement will have a term, which will expire on 30 September 2016.

Elizabeth is concerned about the contents (terms) of the proposed agreement and seeks your advice.

Elizabeth is concerned that if she does not support the agreement, Ginninderra Apples Pty Ltd may terminate her employment.

Elizabeth is also concerned because she has sought the assistance of her union in the negotiations, but has been told by Ginninderra Apples Pty Ltd that she cannot involve them in the negotiating of the proposed agreement.

Elizabeth is also concerned about whether she will continue to enjoy the conditions in her modern award if the enterprise agreement was made and approved by Fair Work Australia.

Advise Elizabeth.

Answer 1

Question1

1.The unfair dismissal rule does not apply to his firm since the number of employees exceed the maximum of 15 employee all together.

Section 23 of fair work act 2009 states that employers having employees fewer than 15 employee is considered as small business. Also section 23(2) of fair act 2009 states that for calculation of number of employees all employees at that time will be considered as employee. Casual employees can be considered as employees if they are working on regular basis.

2. Yes, he can be held liable for unfair dismissal as he did not give notice and terminated the employment of crusty. Besides, there is no sexual harassment policy in that workplace makes it more difficult to defend Roberts’ action.The liability would include paying of compensation and other benefits that court may award.

3.If he wants to settle with crusty he should go for mediation process or give him the compensation.

Question 2:

The control test under common law is to determine the employee and employer relationship.

However it is very subjective. The test is to find whether the employer has the control while the employee does any act in due course of his employment.

Generally, employee follow employer as to what, how and when a thing has to be done. Certain situation where some kind of employee would work without even receiving instructions are when they are smart, qualified and trusted, however it does not mean that the employer cannot have the right to control and instruct.