Industrial/Employee Relations Flashcards
What are the key institutions in the industrial/employee relations?
- Fair Works Commission (Formerly Fair Work)
- Fair Work Ombudsman
- Fair Work divisions of the federal court and federal circuit court
- Other courts e.g. Australian Human Rights Commission
What are the minimum legislative conditions of employment terms known as?
- National Employment Standards
What are the National Employment Standards?
- 38 Hour week
- Unpaid parental leave
- flexible work for paretns
- annual leave
- personal, carer and compassionate leave
- Community service leave
- public holidays
- fair work info statement
- notice of termination and redundancy
- long service leave
What are the conditions of employment terms?
- Minimum Legislative Conditions
- Award System
- Agreements
What constitutes employment agreements?
- Enterprise agreements
- Contract of employment
What are the necessary conditions of unfair dismissal?
- minimum employment period (12 months small business/6 months others)
- employee either
- covered by award or enterprise agreement
- ‘award free’ but no high income earner
- Not a genuine redundancy - but exemption does apply where
- employee could reasonably have been redeployed
- breach of consultation requirements in an industrial instrument
- Other exemptions (expiry of fixed term, demotion etc)
What constitutes a small business?
- { 15 employees
What are the possible remedy’s for unfair dismissal?
- reinstatement with backpay
- if inappropriate, up to six months compensation
What is the procedure for unfair dismissal?
- Application must be lodge with 21 days
- hearing process
- conference
- hearing
- lawyers only with FWC’s permission
- limited appeal right s
What is unlawful discrimination?
- Less favourable treatment, on a prohibited ground, in a prescribed area activity (in every stage of the employment relationship and in the provision of goods and services), to which no exemptions or exception applies
- Variety of prohibited grounds
- Sex,martial status, pregnancy
- Gender identity, sexual preference
- Race, colour, religion
- Disability
- Age
What constitutes harassment in regard to the industrial relations framework?
- A form of unlawful discrimination
- Any form of conduct towards a person that is
- unwelcome or uninvited
- based on one of the unlawful reasons and
- a reasonable person would have anticipated that the behaviour might humiliate, offend or intimidate that person
- Motive is irrelevent
In regards to the industrial relations framework, what is workplace bullying and what does it not include?
- Repeated and unreasonable behaviour directed towards a person, or group of persons that creates a risk to health and safety
- i.e. persistent
- intentional or not
- Does not include
- proper performance management
- Legitimate disciplinary action
- reasonable supervisory practices
- allocation of work in accordance with terms
- interpersonal conflict - differences of opinion
- single incident
In regards to the industrial relations framework, how can early mistakes be avoided in the recruitment?
- Misrepresenting the role
- Properly drafted job ads
- Avoid promises or representations about:
- conditions
- promotions
- job security (Expected longevity of role)
- Bonuses
- Conditional employment contracts
- Ensure offer letter makes it clear if conditions must be satisfied
- i.e. work visa, health checks, references
- Termination issues if condition not met
- Ensure offer letter makes it clear if conditions must be satisfied
- Assement on merit
- Marriage, family, age all potential discriminatory and should be avoided in questioning
In regards to the industrial relations framework, what are the stages of performance management?
- Stage One
- Prior to performance management
- Stage Two
- During performance management
- Stage three
- Prior to termination
In regards to the industrial relations framework, what are the key elements of the firs stage of performance management?
- Prior to performance management
- employee understands what is expected
- reasonable performance expectation
- employee has training and support to perform role
In regards to the industrial relations framework, what are the key elements of the second stage of performance management?
- During performance management
- Who/where/what is the convo? - document- follow any policy
- objective and clear about issues
- opportunity to respond
- implement agreed plan
- employee told of consequences of poor performance
In regards to the industrial relations framework, what are the key elements of the third stage of performance management?
- Prior to termination
- Made clear termination could occur?
- Consideration given to employee’s issues?
- Reasonable opportunity to improve given?
- Does it warrant dismissal?
What is the In regards to the industrial relations framework, what is the checklist for termination?
- Compliance with contract
- Compliance with policies
- Adverse action/ discrimination issues?
- Unfair dismissal risk?
- Misrepresentation?
What do the fireworks commission, ombudsman and human rights court actually do?
- Fair Works Commission (Formerly Fair Work)
- Tribunal
- Fair Work Ombudsman
- Regulator/prosecutor
- Other courts e.g. Australian Human Rights Commission
- Disability disputes of importance
How are awards categorised?
Industry or occupational awards
What is an example of an agreement, what is there relation to awards and what must be true of them?
- Enterprise agreements between single employer and their workplace
- typically negotiated on employer by employer basi- Awards do not cover employees with enterprise agreements
- Must pass ‘better off overall test’
- vs Awards
What are agreements and awards as opposed to contracts?
- Agreements & awards are statutory instruments that apply to particular employees
What is award covered?
Specific occupations that are specified as being ‘award covered’: i.e. Transport Industry Award - all employees in private sector transport industry
Who are generally award free?
tend to be professionals: HRManagers, Accountants, Lawyers etc
What is true of the minimum legislative conditions?
Some exceptions to minimum legislative conditions: casual employees e.g. don’t get leave
What is true of legitimate redundencys?
- Needs to adhere to rules: downsizing, restructuring
What is adverse action/general protection?
- Similar to discrimination - but also incorporate protections for people like union member
Why in general is social media an issue?
The general rule (principle in employment law) is that an employer can be vicariously liable for the acts or omissions of its employees
What are the issues with social media?
- Pushing the boundaries of this principle: private time vs work hours (i.e. online bullying)
- breach of confidentiality: sharing information online
- Excessive use during work: productivity
- Misconduct: employers can track conduct on social media (as it conflicts with work)
- Reputational issues
What is true of the use of social media in pre-employment checks?
- Privacy invasion? No: broadcasted to public
- Don’t need to ask the personal/discriminatory questions: can be found online: still not alowed
What are the factors to consider with social media issues?
- ‘Work related’
- How ‘public’ is the post?
- What is the nature of the comment
- damage to business?
- Damage to relationships?
- Incomparable with duty as employee?: confidentiality
- Express terms of contract/policy?
How to protect the business in regard to social media?
- Social media policy needs to:
- Clearly state that it applies both in and out of work
- Provide for the policy to apply to work/personal devices
- Expressly provide for monitoring of the employer’s systems
- Clearly describe acceptable use during work hours
- Make clear what the expectation are on employees in their own time, and suing their own facilities
- Deal with representation about the employer
- Deal with representations about clients, customers and contractors
- Prohibit bullying, harassment and discrimination
- Set out the consequences of a breach
What other policies should be checked in regards to social media?
- Recruitment policy
- Discrimination/harrassment policy
- IT policy
- Grievance policy
- Contracts Policy
What is important to the recurimtnet policy in regards to social media?
Cyber-vetting guidelines
What is important to the Discrimination/harrassment policy in regards to social media?
- Update to refer to use of technology including social networking
- Check that it provides for out of hours conduct connected to the workplace
What is important to the IT policy in regards to social media?
- Check that it expressly sets out an ability to monitor
- Check that it does not prohibit disciplinary action with respect to out of hours conduct
What is important to the grievance policy in regards to social media?
Should cover the right to complain about out of hours social media activities
What is important about contracts in regards to social media?
Contracts should Include reference to not bringing self or employer into disrepute
Social media training should….
- Be carried out at induction
- Be carried out regularly, including for managers
