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LLAW3253 Labour Law For the Religious Discrimination Assignment

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Questions:

1. Is Kate an employee or independent contractor?  Why does it matter? 


2. Assuming she is an employee, how much per hour should she be paid?  What is the difference between the ‘minimum wage’ and the ‘minimum wage in awards’?  What steps can she take to recover any underpayment?  


3. Having regard to the Fair Work Act 2009 (Cth) and its predecessor legislation, explain why making a registered individual workplace agreement is no longer an option and whether making a collective agreement is a good idea.  


4. Assuming she is an employee, is this a valid term of her contract?


5. Assuming she is an employee, what are her rights and obligations under the National Employment Standards in the Fair Work Act 2009 (Cth) and in your opinion, are these sufficient or should she try to negotiate more favourable terms with the Firm? 

Answers:

1. For purpose of determining whether person is an employee or independent contractor, three test are introduced by Court in different cases:

First test is control test, and this test was used by Courts in 19th Century for the determining whether master controls not only the acts of the worker but also control the manner in which worker perform the act. This test was identified in the case Yewens v Noake (1881) 6 QBD 530[1], and as per Bramwell LJ stated that if employer tells person what to do and how to do then there is contract of employment, but it must be noted that smaller degree of control indicates self employment[2].


In the present case, as per the terms of the contract Kate can do anything lawful and necessary to complete the job, and she is free to use her own methodology which state that Kate does not follow the directions of her employer. Therefore, as per this test employer does not exercise any control on Kate.

The second test identified by Court in case Somervell and Denning LJJ in Cassidy v Ministry of Health[3], named as integration test. In this test Court determines whether work conducted by person is considered as integral part of the business or not or whether work of the person is merely an accessory to the work.

When both tests are fails to determine the exact position of employment then Court introduce one more test that is multiple tests. This test is a threefold test which states that employment contract requires duty of person to give personal service, employer must exercise degree of control over person, and terms stated in the contract must be consistent with the service. This can be understood with the help of case law that is Ready Mixed Concrete (SE) ltd v Minster of Pensions and National Insurance[4]. In this case Court specified three conditions to determine the employment status that is:

Servant must be agreed that he or she will provide the services in exchange of consideration in the form of wage or remuneration. In the present case, Kate receives the payment as per hour she worked. Therefore, there is no fixed wage and remuneration which shows that there is no employment contract between the Kate and company.

Servant agrees either expressly or impliedly that while performing his functions servant follow the directions provided by other. In other words, there must be sufficient control exercised by other person. In the present case, Kate is completely free to use her own methodology and her actions are not controlled by others. Therefore, there is no contract of employment exist between the parties.

Other terms stated in contract must be must be consistent with its being a contract of service. Other terms of contract are not consistent with the employment contract such as she works only for three days in a week, she reports to her managing partner, and she can work in other companies while not working with the company[5].

Therefore, after considering all the facts it is clear that Kate is an independent contractor, and there is no employment contract between the parties.

2. Minimum wage of an employee is base rate of pay for ordinary hours worked by an employee, and base rate is clearly depend on the instrument related to industry applied on an employee such as modern award, enterprise agreement, transitional pay scale, or national minimum wage order. The minimum wages received by employees are reviewed by the Fair Work commission annually, and commission also taken into account any adjustments taking effect on 1 July each year. The review considers the following rates of pay in:

In case of modern awards, this review states the minimum wage rates which are covered by relevant modern award, and in case of national minimum wage this review applies on employees who are free from agreement or award from 1st July 2010.

It must be noted that employers and employees cannot agree on any rate which is less than the minimum wage rate[6].

Currently the national minimum wage rate is $17.70 per hour or $672.70 per 38 hour week and these rates are applied before tax. It must be noted that casual employees which are fall under the national minimum wage also get at least 25% Casual loading.

In case of junior employees who are free from agreement and award percentage stated in Miscellaneous Award 2010 applied to the national minimum wage.

Existing awards and transitional pay scales are replaced by modern awards from 1st January 2010. Modern awards include the terms and conditions applied on employees related to particular industries and occupations. It must be noted that modern awards stated the minimum wages but there are some modern awards which include transitional arrangements under which in every five years wage related components are phased. It is necessary for employers to keep check on related modern awards for the purpose of determining the transitional arrangements. In case transitional arrangements does not applied then from 1st January 2010 modern award pay rates will applied.

Minimum wages under modern awards are stated below:

  • Wages rates in case of adults but in some particular cases different rates applied as per qualification and experience.
  • In case of juniors, disabled employees, and employees on which training arrangements applied.
  • Casual loadings
  • Piece rates.

It must be noted that it is not possible to make payment to the employee less than the base rate pay specified under a modern award[7].

In the present case, Kate received $15 for per hour which is considered as underpayment, the minimum wage rate is 17.70 per hour. In this case there is underpayment of $2.70. Kate can file her application to the fair work ombudsman in case of contravention, and these contraventions are investigated by the Fair Work Ombudsman. Any such contravention result in penalties such as in case of individual it is up to $10,800 and in case of corporation $54,000. 

3. It must be noted that registered agreements and other enterprise agreement state the minimum employment conditions and these agreements applied in case of one business, any business group, and in case of individual employee. In case registered agreement is applied on workplace then award does not apply. However it must be noted that base pay rate in registered agreement cannot be less than the base pay rate in the award, national employment standards applied in case of registered agreement[8].

On the other hand, Enterprise agreements are also called collective agreements which were made between employers and employees at an enterprise level, and this agreement state the terms of the employment. Information for making this agreement is provided by the Fair work commission, and this commission also access and approve the agreements, and it also deals with the disputes that occur from the terms stated in the agreement.

It must be noted that enterprise agreement is created between one or more employers and two or more employees together with their chosen representatives, in case of Greenfield agreements when there is no employee then employer has choice to deal with one or more employee organizations.

It must be noted that modern awards issued by FWO cover almost complete industry or occupation, and it also provides the safety net of minimum pay rates and conditions related to employment. It is possible to change the enterprise agreement as per the requirements of particular enterprise. Following things are included by Enterprise agreement:

  • Basic rates of payment
  • Conditions related to employment such as working hours, meal breaks, overtime.
  • Consultative mechanisms.
  • Dispute resolution procedures.
  • It also deals with deductions from wages for any purpose authorized by an employee.

It must be noted that enterprise agreement does not state any content which is unlawful in nature such as terms which are discriminatory or objectionable[9][10].

Therefore, it is advisable to Kate to enter into collective agreement instead of registered agreement.

4. Religious discrimination can be done in different forms such as if employer denied the employee work or promotion, or employee has been harassed at work, and any accommodation is denied at work because of religious beliefs and practices of employee or any lack of religious belief person have. Title VII of the Civil Rights Act of 1964 (Title VII) and the Religious Freedom Restoration Act (RFRA) prohibit the employer to enter in any practice which is considered as religious discrimination. Religious discrimination is determined as different treatment with individual because of their religious beliefs[11].

Failure to accommodate- deny the religious accommodation is considered as most common form of religious discrimination occurred at workplace. This type of discrimination includes force an employee at the day of Sunday Sabbath even if other employees are ready to exchange their shifts with him, or put pressure on employee not to wear scarf at workplace for the purpose of complying with dress code of company even in those cases when other employees are allowed to wear baseball caps on their job, and lastly not allowed to employee to wear or display their religious icons especially when there is no restriction on other employees to display their personal items[12].

Therefore, in the present case Kate can treat it as religious discrimination, and this term is not valid term in the contract.

5. Following entitlements are available to Kate in case of pregnancy:

Pregnant employees has right to get sick leave entitlements because pregnancy is not considered as illness or injury, but it must be noted that if women suffer any illness or injury because of pregnancy then she can take sick leave.

Pregnant employee who is eligible to take unpaid parental leave is also eligible to take unpaid special maternity leave in case women is suffering from any illness or injury related to pregnancy or her pregnancy ends after the period of 12 weeks because miscarriage and other reason. In case women is entitled for special maternity leave for pregnancy related illness then her leaves end when illness or pregnancy end whichever is earlier.

All pregnant employees has right to get safe job which means that employer cannot end their job because of pregnancy[13][14]. 

References:

Yewens v Noake (1881) 6 QBD 530.

Law Teacher, Tests Identifying A Contract Of Employment’, < https://www.lawteacher.net/free-law-essays/employment-law/tests-identifying-a-contract-of-employment-employment-law-essay.php>.

Somervell and Denning LJJ in Cassidy v Ministry of Health.

Ready Mixed Concrete (SE) ltd v Minster of Pensions and National Insurance.

Law information,’ employment law distinction between ‘employees’ & ‘workers’ affect holiday & pay rights’ (6th September 2007), < https://legalcatch.wordpress.com/2007/09/06/employment-law-distinction-between-employees-workers-affect-holiday-pay-rights/>.

FWO, ‘Minimum wages’, < https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/minimum-wages>.

FWO,’ Awards’, < https://www.fairwork.gov.au/awards-and-agreements/awards>.

FWO, ‘Agreements’, < https://www.fairwork.gov.au/awards-and-agreements/agreements>.

FWO,’Make an Agreement’, < https://www.fwc.gov.au/awards-and-agreements/agreements/make-agreement>.

FWO,’ Enterprise bargaining’, < https://www.fairwork.gov.au/ArticleDocuments/723/Enterprise-Bargaining.pdf.aspx?Embed=Y>.

FWO, ‘Protection from discrimination at work’, < https://www.fairwork.gov.au/employee-entitlements/protections-at-work/protection-from-discrimination-at-work>.

Workplace fairness,’ Religious Discrimination’, < https://www.workplacefairness.org/religious-discrimination>.

FWO,’ Returning to work from parental leave’, < https://www.fairwork.gov.au/leave/maternity-and-parental-leave/returning-to-work-from-parental-leave>.

FWO,’ Pregnant employee entitlements’, < https://www.fairwork.gov.au/leave/maternity-and-parental-leave/pregnant-employee-entitlements>. 

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