E M P L O Y M E N T L A W
TOPIC ONE
THE SCOPE OF EMPLOYMENT LAW Regulating Work
The significance of work
§ Relationships between workers and those who engage their labour are among the most important in contemporary society à work contributes to personal and collective economic and social wealth; it provides a means for self-expression, and mutual advancement; work is a vital aspect of our personal identity and our realisation of purpose in our lives
§ The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises a ‘right to work, which includes the right of everyone to the opportunity to gain [their] living by [their] work which [they]
freely [choose to accept]
o According to the ICESCR, the right to work ‘is essential for realising other human rights and forms an inseparable and inherent part of human dignity’
§ The laws a society adopts in regulating these relationships are consequently enormously influential in constituting society itself, and reveal its most essential values
Work relationships: why regulate them differently from commercial bargains?
§ Why separate a body of law? Why should the law regulating the relationships between workers and those who engage them be any different from the general laws governing other commercial relationships?
§ There is a school of thought which holds that the laws of contract and property are enough to regulate transactions by which employers engage workers
§ However, contract law notoriously favours those with economic power, leaving the welfare of working people to what H B Higgins called the ‘unequal contest, the higgling of the market for labour, with the pressure for bread on one side and the pressure for profits on the other
o Creates terrible risks to the well-being and dignity of the most vulnerable in our community
§ Over time, statute law has intervened to respond to society’s evolving expectations as to the ‘basic’ or minimum wages/conditions that ought to apply to ensure decent living standards for working people How do we protect employment rights?
What kinds of ‘law’?
§ This course considers the common (or judge-made) law that has emerged over the centuries from the resolution of disputes between employers, workers and unions
§ Includes employment contract law and the law of tort, two essential sources of labour laws
§ On the other hand, fissuring can partially but not completely insulate lead firms from the workers who perform outsourced tasks and from the blowback that may hit even faraway lead firms when those workers suffer abuse
§ Recall Apple’s brand-bruising scandals when a dozen Foxconn workers committed suicide in 2010; by contrast, robots and algorithms have no human rights to be violated and no bodies to be battered
§ Unlike human labour, machines tend inexorably to get more capable and cheaper over time; the first burger-flipping robots might be expensive relative to low-wage fast food workers, but as innovation races forward, and the machines get cheaper and more efficient while labour usually does not
§ Eventually, the up-front investment will be worthwhile, if not obligatory for firms in a competitive market Solutions?
§ If firms have to pay a functional price to avoid employer responsibilities, more workers will remain within the fortress of employment—the whole array of rights and duties associated with employment
§ Must expand lead firms’ responsibility for the wages and working conditions of the workers whose labour they use (e.g. preventing the misclassification of employees and independent contractors where the worker does not have genuine entrepreneurial autonomy, or even altogether dismantling the distinction)
§ However, the exit option of automation confounds this otherwise sensible strategy of expanding the scope of employer responsibility
o If McDonalds Inc. is held to be the employer of its franchisees’ employees, and Uber is deemed to be the employer of its drivers, those firms are marginally more likely to turn to burger-flipping robots and self-driving cars
TOPIC TWO DEFINING ‘EMPLOYMENT’
Employment vs. Independent Contracting
§ Where should the boundary be drawn between categories of workers who are protected by labour laws and those who are entrepreneurial workers
§ In the case of most, but not all, protective labour laws—WHS legislation being a notable exception—the boundary is defined by the common law concept of ‘employment’
§ An employment contract, or a ‘contract of service’, includes many terms implied by law, such as implied duties of obedience and loyalty, that will not be implied into independent work contracts (‘contracts for services’)
§ Thus an employer will be vicariously liable for civil wrongs committed by employees in the course of their employment, but will not necessarily bear any liability for the torts of an independent contractor
o The ancient justification for this is said to be that the ‘master’, being in control of servants takes the risk of their actions and bears corresponding liability for any harm they inflict on third parties while doing their bidding
§ Employed workers also enjoy a range of statutory protections not generally available to independent contractors working under a contract for services
§ Entitlements to minimum wage rates and awards conditions, the right to engage in collective bargaining, and access to statutory unfair dismissal protection are all benefits afforded by the Fair Work Act to employees but not workers who are not classified as employees
§ It need not be this way; statutory entitlements and obligations can be (and in other jurisdictions often are) ascribed to a wider range of workers than those who come under the common law definition of employment
workers’ compensation claim for the psychiatric harm she suffered as a consequence of participation in the program
o The Commissioner found there was a contract between the parties under which she agreed to provide service for remuneration, she was subject to comprehensive control by the employer, over when she must attend, what she must wear, which tools she must use, she was an integral part of the show, her work was for the benefit of the employer’s enterprise, and any goodwill arising from her work benefited the employer
o The relevant indicia ‘overwhelmingly’ favoured a finding of employment Remuneration
§ By no means necessary for a worker to be paid according to time served in order to be deemed an employee; workers who are paid piece work rates (for the completion of tasks), or on commission, can still be employees depending on other factors
§ Also by no means the case that a person who works voluntarily, for no pay at all, is never an employee
§ Evidence suggests that unpaid work experience internships are much abused in a wide range of industries in Australia
Ownership of Assets and Equipment
§ Who owns the assets (plant, vehicles and equipment) used in the work has been an important factor in cases in the transport industry
§ Legal ownership of assets used in the business, however, does not necessarily equate to economic independence and can in fact increase the risk of exploitation of the worker
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Significance: § Concerns the nature of the relationship of employment and the scope of the doctrine of vicarious liability
Material facts:
§ Vabu Pty Ltd conducted a Sydney delivery business named ‘Crisis Couriers’
§ In 1994, Hollis was leaving a building in Ultimo in the course of his work; he took two steps onto the footpath and was struck by a cyclist and knocked to the ground
§ The cyclist left the scene ignoring Hollis’ calls
§ The cyclist was never identified, but was wearing a green jacket which in gold lettering bore the name of Vabu’s business
§ As a result of the crash, Hollis needed knee surgery, was unable to work for a period, and suffered permanent injury
Reasoning:
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ:
§ An employment relationship exists between Vabu and its bicycle couriers
§ The absence of annual leave, superannuation, and sick leave from any contracts between Vabu and the couriers are not alone determinative of a non-employment relationship; the system which is operated thereunder and the work practices imposed by Vabu establish the totality of the relationship between the parties
§ Some factors include:
o Low cost of equipment borne by cyclists
o Lack of skilled labour or labour requiring special qualifications
o Inability to generate goodwill or make an independent career freelancing o Little control over the manner in which cyclists performed work
o Presented to the public as emanations of Vabu
Variations
§ Flexibilities that an employer might want include (i) duties; (ii) hours of work; (iii) location; (iv) reporting structure; (v) promotion/demotion
§ Ways of changing obligations can go in one of two directions:
§ So now let’s revisit the “Go to Toronto twice a year” direction
o These provisions do not support an aspiration to protect workers’ entitlement to engage without risk in robust industrial negotiations, rather, they protect workers against deliberate and conscious acts of victimisation on the grounds of union activity (so long as the perpetrator confesses, or can make no other excuse for the behavior)
o They do not support the aspiration that FOA provisions should support rights enshrined in international labour conventions to enable workers to bargain collectively to improve workplace entitlements
§ At most, the FWA provisions protect nothing more than an interest that’s susceptible to erosion by the competing interests of employers managing their enterprises according to their own values and objectives
§ Those who surreptitiously infringe employees’ freedom to act collectively in the course of preferring their own managerial prerogative will not fall foul of the provisions
Suggestions for how to reframe the provisions to support collective bargaining rights
§ A clue as to how the provisions might be reframed comes from the statements of members of the HCA in Barclay and BHP Coal — people need protection from adverse action ‘in connection with’ the exercise of their workplace rights
§ They need an entitlement to corrective remedies, to undo that harm, whether or not any other person is found to have deliberately intended harm for a prohibited reason
§ If we were to extract the punitive elements of the provisions, or reserve them only for proven deliberate victimisation, and focus not on the reasons of the decision-maker but on the causation of the harm, we might secure more effective protection of workplace rights
§ Some may fear this kind of approach would compromise the ‘fair balance’ in the FWA which also supports employers’ entitlements to manage their own businesses
§ But if these provisions really do seek to achieve a balancing of interests, these so-called ‘rights’ would be better framed as ‘interests’ and disputes would be better left to resolution by conciliation and arbitration in the FWC, rather than the Federal Court
§ Workplace rights are more likely to be protected if a breach can be corrected quickly, relatively
informally, and according to the same ‘fair go all around’ principle as is applied in unfair dismissal cases
Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622
Significance: § FWC case about inappropriate social media posts and unfair dismissal
Material facts:
§ In March 2019, CM lodged an application seeking a remedy for an alleged unfair dismissal by her employer Alarmnet
§ Alarmnet responded saying CM was dismissed as a result of a serious breach of the social media policy
o The company’s social media policy requires employees to refrain from posting inappropriate material which could cause insult, offence, intimidation, or humiliation to the company, or is defamatory, etc.
§ From 5 December 2018, CM was absent from work as a result of a psychological injury (her close workmate was killed on his way home from work) which was determined to be compensable under workers comp
§ On 26 February 2019 she made a Facebook post concerning Alarmnet, for which Alarmnet confronted her telling her it was a breach; she admitted to making the post because she was angry at the time
