Q2: What constitutes ‘accessorial liability’? Use an FWO case to illustrate your answer.
The act of an individual with authority failing to prevent the organization or another person from contravening the provision of fair work Act 2009 constitutes accessorial liability. Under the fair work act 2009, employers are responsible for ensuring that their employees are provided with minimum pay and conditions prescribed by the Act. Section 550 of the Act places personal responsibilities on individuals who fail to ensure compliance with Act (Webster, 2017). Recent FWO cases seem to suggest that if one has some authority in an organization that is somehow related to compliance of the fair work act 2009 requirement but failed to used that authority to do so, they will be held personally responsible for the contravention of the law as long as they are aware of such contravention. In this case, those with the relevant authority include the company directors, the company HR managers, the company CEO or day-to-day manager, and even the accountant. for instance, in a recent FWO case, Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown, the HR manager who processed underpayment of almost $600,000 to 85 Chinese restaurant staff and helped falsify record was held liable for the companies breach of fair work Act 2009 and was therefore fined $21,760. The court found that she has failed her authority as the restaurant HR manager to ensure that employees were paid the correct hourly rate, weekend penalty rate, casual loading, and overtime. In another FWO case, Fair Work Ombudsman v Blue Impression Pty Ltd & Ors an external accountant who had advised a business on its employees' arrangement was held under the accessorial liability provision of the Fair work act 2009. These recent case shows suggest accessorial liability provision (section 550 of the fair work act 2009 will apply where individuals have authority either due to their formal position in the organization or due to their level of expertise fails to stop an organization in which they are involved in contravening the provision of the Fair work act 2009 will be personally held liable.
So in conclusion, two elements seem to be the primary guide in recent accessorial liability cases. I.e. 1) relevant authority and 2) failure to intervene to stop contravention. If these two are present then the act or the conduct of an individual’s constitute an accessorial liability
References
Fair Work Ombudsman v Blue Impression Pty Ltd & Ors [2017] FCCA 810 (28 April 2017)
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 (19 November 2017)
Webster, J. (2017). More than underpayments and civil penalty-taking a strategic approach to regulatory workplace relations litigation. Journal of Industrial Relations 59 (3), 354-373
Q7: Is mandatory drug testing in workplaces a violation of employees’ right to privacy? Use Holland’s work to illustrate your answer.
Mandatory drug test in the workplace is not a violation of employees’ right to privacy. As noted by Holland, et al (2005) employers have an obligation of maintaining a workplace that is safe for all. Drug use is known to impair people's judgment and decision and as such increasing chances of risks to themselves and others. in fact, as noted by Taylor (2016), it is generally agreed by workers, their union and employers that in an industry where heavy machinery is used it is important for a drug test to be done to identify the workers who create risks for themselves and others. It has been argued by employees unions and others that, drug use does not always affect one performance which is at the center of employment obligation. Therefore, when employers conduct mandatory drug tests on employees who perform competent on their job, then Drug testing amounts to a violation of employee’s right to privacy as it gives employers access to general medical information which is not relevant to the contractual obligation (Holland, et al 2005). Such argument is erroneous as it does not take employers' responsibility under OH&S into consideration. The fact that drug use might or might not affect performance including safe handling of equipment etc makes it necessary for employers to conduct a mandatory drug test on their employees to be on the safe side. Also, Holland (2016) argues that when it comes to safety in the workplace, a more holistic approach should be adopted since it has been demonstrated previously in Toms v Harbour City Ferries Pty Ltd that drug use is not always the main cause of accidents in the workplace but others contextual factors do. while this argument is true that contextual factor such as fatigue, burnout, stress are some of the factors that lead to accidents in the workplace yet drug use get blamed for it, this does not necessary mean that drug does not cause or contribute to accidents. As mentioned earlier, drug use sometimes impairs judgment which can lead to serious accidents in the workplace. If an accident occurs regardless of whether it was caused by contextual factors or drug use, the employers will be held responsible as they have a duty to provide safe environment. Therefore the debate should not be whether contextual factors or drug use are responsible for accidents in the workplace. Both can contribute to accidents in the workplace and they are not mutually exclusive. In fact, both contextual factors such as stress together with drug use can have serious effect on individual's ability to make sound judgement as well as their overall fitness for duty. Therefore, as long as employers are held liable for the safety of their employees and visitors to their working environment, employers should be free to implement a no drug policy and most important conduct mandatory drug test to ensure their workplace remain safe for all. This would not amount to breach of employees’ privacy since it is necessary to allow employers to meet their obligation under OH&S.
References
Holland, P. (2016). Drug testing in the Australian workplace: still a contested terrain. The journal of industrial relations 58 (5), 688-696.
Holland, P., Pyman, A., and Teicher, J. (2005). Negotiating the Contested Terrain of Drug Testing in the Australian workplace. The journal of industrial relations 47 (3), 326—338.
Taylor, I. (2016). Drug Testing in the Workplace – A Storm in a Pee-Cup. The Law Society of SA
Q8. What are the key elements of a ‘constructive dismissal’? Use a Fair Work Commission case to illustrate your answer.
Over recent years, the phrases constructive dismissal has become common among unfair dismissal cases in Australia. Constructive dismissal, in this case, is used to refer to the conduct of employers which caused the employees to resign (Howe, Berg & Farbenblum, 2018). As noted by Thai (2014), constructive dismissal occurs when the employers expressly require the employees to resigns or conduct themselves in a matter that leaves no choice to the employees but to resign. When the court is satisfied that constructive dismissal took place, it rules the case in the favor of the employees. However, for constructive dismissal to be satisfied, several elements must be present. The first element that must be satisfied is that employees must show that it is the conduct of the employers that were the primary contributing factor that lead to the termination of the employment (ELC, 2015). So in this case, the employee must show that the employers did something or failed to do something that left him/her no choice but to resign. An example of contributing factors is when an employee is accused of theft and is asked to resign or get himself/herself reported to the police. The second element that must be satisfied that the employer's conduct must involve a significant breach of the employment contract (ELC, 2015). In other words, for an employee to successfully argue that constructive dismissal took place, they must demonstrate or prove that the employer's conduct which leads them to resign involves a major breach of employment contract by employers. This is an element that is easy to satisfy since the termination of employment is enough evidence to show a breach of employment contract by the employer. The third element that must be satisfied is that must have left or resigned after the relevant conduct (ELC, 2015). So here, the period between the employer's conduct and the termination of the employment matters. For employees to successfully argue constructive dismissal occurred, the period between the conduct and termination of employment must be really short. Otherwise, if employees do not leave or resign after the employer’s conduct, they are deemed to have affirmed the employment contract and cannot therefore later argue constructive dismissal took pace when they are eventually dismissed from their employment. The fourth element is that the employees arguing constructive dismissal occur must have clean hands. He or she should not have been in any breach of the employment contract. Otherwise, as it was held in Ramsay v Hoover Container Solutions Pty Ltd if the employees himself were in breach of the employment contract e.g. failing to follow employers' rules and laid down procedures then a constructive dismissal argument is not likely to succeed.
In conclusion, four elements must be present for a constructive dismissal argument to be successful. first, the employee must demonstrate that the employers conduct lead to the termination of the employment, 2) the employer's conduct involves a significant breach of the contract and 3) the employee should have left or resigned after the employers conduct, 4) the employee must have clean hands
References
ELC (2015). Fact Sheet Constructive dismissal: when you are forced to resign. Employment law center.
Ramsay v Hoover Container Solutions Pty Ltd [2015] FWC 6704.
Thai, P. (2014). Constructive dismissal: A re-examination. Australian Journal of Labor Law 27 (2014), 132-154.
Howe, J., Berg, L., & Farbenblum, B. (2018). Unfair dismissal law and temporary migrant labor in Australia. Federal law review 46 (1), 19-48.