Employment Law In Australia – Records Of Employees, Awards And Industrial Action

Employee Records under Australian Employment Law

1. Section 536 of the Fair Work Act 2009 defines the obligations of employer related to the pay slips. Clause 1 of this section states employer must provide pay slip to each and every employee, and this slip must be provided within 1 working day of paying wages to the employee. Pay slip must be given to employee even though employee is on leave. Clause 2 of this section states that pay slip must be in a form which stated by the regulations, and pay slip must include necessary information stated by the regulations.

1. Pay slips must cover following details for each pay period:

• Name of the employee and employer.
• Employer’s Australian Business Number
• Period of pay
• Payment date
• Gross and net pay of employee
• In case, employer pay hourly rate then the hourly rate, number of hours worked at that rate, total amount paid to the employee.
• Any deductions made by the employer from the pay of employee.
• Slip must include the pay rate which is applied on the last day of the employment.
• Pay slip must include loadings, allowances, bonuses, incentive-based payments, penalty rates or other paid entitlements.

1. Employer is under obligation to provide necessary documents and other relevant information related to workplace to the employee who commence employment at workplace:

• Employer is under obligation to provide employment contract to the employee, contract must include start and end date of employment contract, and it must include other relevant terms and conditions related to the employment.
• Employer must inform the employee about the agreement which covers their employment such as award, workplace agreement, and contract.
• Start and finish times of working, and overtime hours for employees who wants to done overtime.
• Employer must provide information related to the leave accruals such as annual leave and personal leave.
• Information related to the superannuation fund and contribution details.
• Information related to the workplace laws such as disciplinary procedure, discrimination laws, other relevant laws and provisions related to workplace.
• Employer must provide guide related to employees rights and obligations at the commencement of employment.

1. Employee has right get employment records from the employer and such records must be provided to employees within 3 working days from the date of request, and in case of pay slip it must be provided within 1 working day of payment of wages.
2. Section 535 of the Fair Work Act 2009 states the obligations of employer related to the records of the employees. Clause 1 of this section states that employer is under obligation to make the employment records and keep them for seven years. This clause further states that records of the employees must be prescribed as per the regulations.

Clause 2 of this section states that records of the employees must be in a form which is prescribed by the regulations, and must include information which is stated by the regulations.

Clause 3 of this section provide right to the employees to inspect those records.

This section further states that employer must not keep or prepare the record in false or misleading manner.

Answer 2

1. There are number of industrial instruments which cover the employment terms such as Awards, enterprise agreement, employment contracts, etc. In the present case, employment of Max is covered under the Modern Awards.

Awards in context of national workplace relations system include two types of awards that are modern awards and award-based transitional instruments. It must be noted that awards are considered as those documents which are enforceable in nature and contain minimum terms and conditions related to employment. Additionally they include legislated minimum terms.

In other words, modern awards are those documents which are based on minimum employment standards and apply in addition to the National Employment Standards (NES). There are number of industries which opted for modern award and it covers all the employers and employees in the sector.

It must be noted that modern awards include complete industry or occupation, and provide a safety net of minimum pay rates and conditions related to employment. Awards are used as the benchmark for the purpose of assessing the employment contracts before approval.

Fair work commission is responsible for making and varying the awards in context of national workplace relations system. Some of the necessary clauses related to modern awards include award flexibility, consultation, dispute resolution, types of employment, etc.

1. Minimum wage is considered as employee’s base rate of pay for normal hours worked by the employee. Generally, this pay rate is depending on the normal hours worked by employee. Generally, minimum wage rates are depending on the industrial instruments. Employers cannot pay less than applicable minimum wages to their employees, even though employees agree on this.

Currently, minimum wage rate at national level is $18.29 per hour or $694.90 per 38 hour week before deducting tax. Those employees who are working on casual basis covered by the national minimum wage and also get at least a 25% casual loading.

• Wages rates for the purpose of adults, and in some specific cases, different rates are applied as per the qualification and experience.
• Wages rates for juniors, rates for disable employees, and those employees also on whom arrangements related to training are applied.
• It also includes casual loadings, and piece rates.

In the present case, Max gets $16 as wage on the basis of per hour rate, and as per national legislation minimum wage rate at national level is $18.29 per hour.

1. Yes, age of Max affects the rate of minimum wage for which Max is entitled. Clause III of special national minimum wage contains the provisions which applied to junior employees. The minimum wage for junior employees is a particular percentage of the national minimum wage and it is stated on the basis of age of employee:

Age	Minimum wage rate
More than 16 years: 36.8%	$ 6.73
16 years: 47.3%	$ 8.70
17 years:   57.8%	$10.57
18 years:   68.3%	$12.49
19 years:   82.5%	$15.09
20 years:   97.7%	$17.86

1. Overtime is the work which is performed by the employee outside ordinary hours listed in an award or agreement. Generally, overtime is paid to the employee at higher rate. Overtime is considered as an award which is based on entitlement. Following is the employee overtime award:

Day	Ordinary Hours of Work	Usual Working Hours	Hours Worked	Cumulative Total	Overtime
Monday	7AM to 7PM Not more than ten hours.	9AM to 5PM One hour lunch break.	Usual Working Hours	7	Nil
Tuesday	As above.	As above.	9AM to 6PM	15	One hour at time and a half.
Wednesday	As above.	As above.	Usual Working Hours	22	Nil
Thursday	As above.	As above.	Usual Working Hours	29	Nil
Friday	As above	As above	9AM to 7PM	38	Two hours at time and a half.
Saturday	7AM to 12.30PM	Nil	9AM to 10AM	39	Two hours at time and a half and one hour at double time.*
Sunday	Nil	Nil	Nil	39	Nil

This letter addresses three different issues and all these issues are sated below:

1. Unfair dismissal suit- employees have right to file suit against the employer if they believe that they are dismissed on unfair and wrong reason. In other words, unfair dismissal is considered as that dismissal in which employer dismissed the employee on the basis of harsh, unjust or unreasonable manner. It must be noted that dismissal is considered as unfair dismissal if:

• Employee was dismissed.
• Dismissal of the employee was hashed
• Dismissal was not fall under the case of genuine redundancy.

General Protection suit- employee has right to file suit under general protection if they has been dismissed form their employment when:

• Employee is terminated and this termination is initiated by the employer.
• Employee gives their resignation, but this resignation was forced by the conduct of the employer.

General protections are introduced for protecting the rights of employees at workplace, protect freedom of association of employees, and provide protection from discrimination at workplace.

1. Following is the process of defending unfair dismissal claim in the Fair work commission:

When employee lodges application under unfair dismissal, they are initiating a formal legal process. At the time of filing of application, copy of application is sent to the employer, and relevant authority of Fair Work Commission make contact from the employer for submitting the response related to the application. Following are the key steps of defending the unfair dismissal process:

• Application related to unfair dismissal was send by the former employee to the commission, and then commission pass the copy of the application to the employer.
• It is necessary for employer to file response related to the application, and also submit jurisdictional objections related to the claim if they have any. Employer is under obligation to send their response to both employee and the commission.
• Conciliator of commissioner also tries to help the employer and the former employee for resolving the matter. Written notice was send by the commission to the both employer and former employee, and this letter stated date and time of conciliation.
• In case, it is not possible to resolve the matter through conciliation then commission decided to conduct former hearing.

1. Employer can use different evidences, documents, and information in this case, and list related to evidences, documents, and information are stated below:

• Performance reports of the employee.
• Investigation reports and other documents related to the investigation which is conducted by the organization.
• Response given by employee in the investigations and other relevant documents related to investigation.
• Failure of employee to conduct daily basis meetings with their managers while employment.

Modern Awards and Award-Based Transitional Instruments

Various issues are stated by this letter, and all these issues are discussed in detail below:

1. For the purpose of providing protection to the employees, employment law introduce provisions related to the general protection which:

• Provide protection related to the rights available at workplace.
• Provide protection related to the freedom of association.
• Provide protection against the discrimination.

Employer cannot dismiss the employee on the basis of elements which are covered by the general protections such as age color, sexual orientation, nationality, political opinion, etc. In the present case, Mary was dismissed by her employer because of her political opinion. Therefore, in this case employer breaches provisions of general protections.

1. Mary can seek following remedies from the Court:

• Court has power to direct monetary penalty.
• Court has power to make order related to the reinstate.
• Court can provide order related to compensation for loss.
• Court can grant injunction.
• Mary s terminated on the ground of having particular political opinion, and this is not considered affair ground to dismiss an employee. Therefore, chances related to Mary success in this case are high.

Various issues are stated by this letter, and all these issues are discussed in detail below:

1. General protection laws are those provisions which are additionally introduced by the authorities for the purpose of providing protection to the employees against any discrimination and unfair treatment conducted in the organization. In this case, Mary face discrimination from her employer because of having particular political opinion against the country’s leader and on the basis of this employer dismisses the Mary from the employment. This is the cause of action in the present case, as adverse action is taken by the employer against the Mary for having specific views about the politics.
2. Mary can seek following options on the contravention of her general protection laws, and some of these options are stated below:

• Complaint can file by the person by post.
• Compliant can also be file in person.

It can be said that any person who believes that their gnarl protections are contravened by the employer has right to file complaint against the employer Fair Work Ombudsman (FWO). 

1. Process for taking action in context of general protection provisions are stated below:

• In case person file any complaint under general protection laws and that complaint involve dismissal of the employee, then private conference is conducted by the commission for resolving this issue.
• In case matter is not resolved by private conference, then parties to the dispute has right to resolve the matter through arbitration, but for conducting arbitration it is necessary to get consent of both the parties and if parties does not provide consent then arbitration is not conducted by the commission.
• If consent for arbitration is not provided by both the parties then matter is resolved by making different application in the Federal Circuit Court or the Federal Court.

Industrial action in the organization is taken by the employer or employees of the organization for the purpose of settling the dispute at workplace related to the working conditions. Industrial actions include following actions:

• Employees of the organization do not come at work.
• Employee fails or refuses to perform any work of the organization.
• Employees delay the work or put ban on the work.
• When employees are locked out of the workplace by the employer.

It is possible for the employees to take legal industrial action when bargaining related to registered agreement is unsuccessful. This type of legal action is known as protected industrial action.

Different type of requirements can be met through the industrial action to be protected. Some of these requirements are stated below:

• When current agreement has passed nominal expiry date.
• Parties of the agreement honestly make efforts to reach an agreement.
• Notice related to action is met.
• Action taken by employees is authorized by the protected action ballot.
• Requirement of notice related to action is met.

It must be noted that civil action can be taken in the situation when industrial action conducted by the employees involve:

• Injury to any person.
• Any destruction of property which is done willfully or recklessly.
• Unlawfully taking or using the property of the employer.

Fair work commission has right to end or suspend the protected industrial action that might cause any economic harm to the employers or employees covered under the registered agreement or if there is any danger on someone’s life, and personal safety. In case it causes any severe damage to the economy of Australia or important part of Australia. This can be understood through case law CFMEU v Woodside Burrup Pty Ltd [2010]. In this case, Court stated that FWA has power to suspend the protected industrial action, if they believe that protected action can cause significant harm to any person other than a bargaining representative.

FWC also protects the employee, who takes part in the protected industrial action. Employer has no right to threaten to dismiss the employee or conduct any discrimination against the employee for taken part in the industrial action. However, it is not possible to take civil action against the employers, employees and unions who mainly participate in the protected industrial action.

Employer has right to deduct the pay of employees who are engaged in the industrial action. In other words, if employees are engaged in the protected industrial action then employer can deduct the pay of the employees, but such pay must be deducted for the period of industrial action only.

Protected Industrial Action in Australian Workplace Relations System

When an employee of the organization engaged in any such industrial action which is unprotected, then the employer has right to deduct the amount of pay that is related to the duration of the unprotected industrial action conducted by the employees. It must be noted that minimum deduction of the pay is four hours from the wages of the employees. Deduction must be four hours even though employee did not engage in four hours of unprotected industrial action.

In case employer makes payment to the employee for a period of industrial action or if employee accepts such payment for the period in which they are engaged in any form of industrial action, then they are liable to pay penalties of up to $12,600 for individuals or $210,000 for bodies corporate. In case union stated that employee must be paid for the period of industrial action then they are also liable to pay penalty of up to $210,000 under the BCIIP Act.

After considering these facts it can be said that employees are protected by the laws if they engaged in any protected industrial action and employment law provide other protections also to the employees such as employer has no right to dismiss the employee or to deduct the pay of employee. Therefore, Australian employees can also enjoy workplace right related to the industrial action.

Fair Work Ombudsman, Pay slips, < https://www.fairwork.gov.au/pay/pay-slips-and-record-keeping/pay-slips>, accessed on 15^th March 2018.

Fair work ombudsman, Record-keeping & pay slips, < https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/record-keeping-pay-slips>, accessed on 15^th March 2018.

FSunion, types of industrial instruments, < https://www.fsunion.org.au/Upload/FWA%20FACTSHEET%202%20TYPES%20OF%20INSTRUMENTS(1).pdf>, accessed on 15^th March 2018.

Business, Modern Awards & Enterprise agreements, < https://www.business.gov.au/info/run/employ-people/pay-and-conditions/modern-awards–enterprise-agreements>, accessed on 15^th March 2018.

Fair work commission, awards, < https://www.fwc.gov.au/awards-and-agreements/awards>, accessed on 15^th March 2018.

Fair Work Ombudsman, Minimum wages, < https://www.fairwork.gov.au/pay/minimum-wages>, accessed on 15^th March 2018.

Fair Work Ombudsman, Minimum wages, https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/minimum-wages>, accessed on 15^th March 2018.

Mywage, Minimum Wages in Australia with effect from 01-07-2017 to 30-06-2018, https://mywage.org/australia/main/salary/minimum-wage, accessed on 15^th March 2018.

Katie Wright, (2011), Australia: A Guide for Employers: Ordinary Hours of Work and Payment for Overtime, < https://www.mondaq.com/australia/x/140752/Employee+Rights/A+Guide+for+Employers+Ordinary+Hours+of+Work+and+Payment>, accessed on 15^th March 2018.

FWC, General protections dismissal, < https://www.fwc.gov.au/termination-employment/general-protections-dismissal#field-content-0-heading>, accessed on 15^th March 2018.

FWO, Unfair dismissal, < https://www.fairwork.gov.au/ending-employment/unfair-dismissal>, accessed on 15^th March 2018.

Fair Work Commission, What is the process for unfair dismissal claims?, < https://www.fwc.gov.au/termination-employment/unfair-dismissal/what-the-process-unfair-dismissal-claims>, accessed on 15^th March 2018.

Fair work commission, General protections dismissal, < https://www.fwc.gov.au/termination-employment/general-protections-dismissal#field-content-3-heading>, accessed on 15^th March 2018.

Fair work Commission, Remedies, < https://www.fwc.gov.au/termination-employment/general-protections-unlawful-terminations/remedies>, accessed on 16^th march 2018.

Hickson Lawyers, (2011), Australia: Adverse Action: recent cases raise issues for employers regarding the General Protection provisions of the Fair Work Act, < https://www.mondaq.com/australia/x/146432/Employee+Rights/Adverse+Action+recent+cases+raise+issues+for+employers+regarding+the+General+Protection+provisions+of+the+Fair+Work+Act>, accessed on 16^th march 2018.

FWO, Protections at work, < https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/protections-at-work#How-can-I-seek-help-for-a-general-protections-contravention>, accessed on 16^th march 2018.

FWC, What is the process for general protections dismissal applications?, < https://www.fwc.gov.au/termination-employment/general-protections-unlawful-terminations/what-the-process-general>, accessed on 16^th March 2018.

ABCC, industrial action, < https://www.abcc.gov.au/resources/fact-sheets/rights-and-responsibilities/industrial-action>, accessed on 15^th March 2018.

FWO, Industrial action & union membership, < https://www.fairwork.gov.au/employee-entitlements/industrial-action-and-union-membership>, accessed on 15^th March 2018.

FWO, Industrial action, < https://www.fairwork.gov.au/employee-entitlements/industrial-action-and-union-membership/industrial-action>, accessed on 15^th March 2018.