Evaluating_the_Effectiveness_of_Workplace_Law_Reform

Evaluate the effectiveness of law reform in achieving justice for the employer and employee in reflecting community standards and expectations from 2009 to present. The law aims to achieve justice for employers and employees as well as reflect the standards and expectations of the community. In order to judge the effectiveness of workplace law, as well as workplace law reforms, numerous factors must be taken into account. The law must be accessible, transparent and efficient, reflect moral and ethical standards and be enforceable. Also, the effectiveness of the law must be evaluated with respect to the re-occurring workplace issues in society and what remedies have been established to combat these issues, issues that have existed for many decades, like discrimination. The labour Governments legislation, the Fair Work Act 2009 (Cwth) aimed to correct the ineffectiveness of Workchoices. One of the flaws of Workchoices was the “Australian Workplace Agreements””, which meant more employees negotiated for their own benefits only on an individual basis. The creation of the AWAs caused mass demonstrations and protests in Australia, which clearly shows that the legislation was ineffective and did not reflect community standards and expectation. The Fair Work Act 2009 demonstrates its effectiveness as it returns the collective bargaining powers to employees. By returning these powers to the employees, this improved productivity and for example with regards to low-income earners, it allowed them to bargain at an enterprise level, therefore giving them position in the workplace. Also with the increase involvement of trade unions with regards to the bargaining process, the advice and the representation they provide has evidently allowed employees to continue to bargain with their employers and thus, this creating equality and justice which shows the law being effective. The Fair Work Ombudsman (OFWO), which was created under the Fair Work Act 2009 (Cwth), ensured that there was a compliance with the act in the workplace. The OFWO wanted to ensure that the right practices were being used in the workplace and would provide guidelines with regards to this. If there are any practices in the workplace that do not follow the act and/or guidelines, OFWO will investigate and if necessary will enforce the act by taking it to court of the FWA. This demonstrating that the purpose of the OFWO is effective in achieving justice and fairness as it provides an enforceability of the Fair Work Act and the law. Before the commencement of the Fair Work Act 2009, under the Howard Government’s Work Choices Act 2005, because of many restrictions and implications of awards, many low-skilled workers were exploited. In addition to this flaw by the Work Choices Act 2005, the award agreements made between an individual employee and employer did not require passing a “no disadvantage test”. The commencement of the Rudd Government’s Fair Work Act 2009, allowed many employers to be more flexible. This is because, under the Fair Work Act 2009, enterprise level agreements would allow the employee to be better overall compared to the relevant awards, as it would have to pass the “better off overall test” (BOOT). These enterprise agreements provide more flexibility for employees, as they can be adjusted to suit the required needs of an employee, like for an example, a female employee with parental duties. This is obviously effective in recognising the growing role of women in the workplace and thus achieving fairness and justice. Due to the constant changing needs of employees and employers and society in the workplace, Fair Work Act 2009 has introduced a new set of national employment standards (NES) to provide greater flexibility for employees. Along with this, modern awards now provide specific key words and procedures with regards to conditions and minimum wage. Modern awards will also be reviewed every four years by the FWA. This procedure setting the example of how the law is effective in reflecting the changing needs and expectations of employees, employers and society. The New South Wales Industrial Relations Commission (NSWIRC) under the Industrial Relations Act 1996 (NSW) provides a system and procedure that finds a resolution with regards to industrial disputes. One method the NSWIRC uses is that the enterprise agreement must pass the “no net detriment test”. By passing this test, it means that the agreement in the end doesn’t leave the employee in a worse position than the award. This demonstrating the effectiveness of the law in achieving equality and justice for employees. An underlying issue that has existed in the workplace for many years is discrimination. Unlawful discrimination occurs when someone, or a group of people, is treated less favourably that another person or group because of their race, colour age or etc. The law is effective in achieving equality and justice in the workplace as there are many existing legislations that protect employers from sorts of specific discrimination, legislation like Age Discrimination Act 2004, Sex Discrimination Act 1984 and the Racial Discrimination Act 1975. With regards to disputes between employee and employers, regarding the issue of discrimination, under the Anti Discrimination Act 1977 (NSW), if a resolution cannot be found for the dispute, the Anti Discrimination Board will conciliate the discrimination dispute. This demonstrating the effectiveness of the law in achieving justice and fairness for employees and employers in reflecting community standards and expectations. Cases such as Hill v. Water Resources Commission (1985), as well as Wardley v Ansett Transport Industries (Operations) Pty Ltd (1984) demonstrate the effectiveness of this legislation. In both cases, the accusation of the individuals were upheld, the former regarding sexual harassment in the workplace and the duties of the employer to protect individuals against such harassment and the latter showing that sexual discrimination will not be tolerated by the law, resulting in Ansett being forced to employ Ms Wardley as a trainee pilot. These provisions against all forms of discrimination are effective in achieving justice for both the employer and employee as demonstrated by numerous cases, two of them used as examples here. There have been recent signs of discrimination being combated by the governments in Australia. This is definitely shown in the workplace reforms in the Fair Work Act 2009. One clear example under the Fair Work Act 2009 that shows the signs of the law in trying to rid of workplace discrimination would be prohibiting the employer to take “adverse action” against an employee. The new act now has place the onus of proof on the employer, and there are existing remedies for the breach of this section. This shows the law in being effective and achieving fairness as for example, it allows more chances for fair promotions, as employers have to provide evidential proof for their decisions in regards to promotions. Another clear case of discrimination in the workplace that the law has been ineffective in addressing is gender discrimination. In an article last December by the Australia Financial Review “Gender Pay Gap should be it closed” it states that, although there have been clear signs of the changing role of women in the workplace, women on average are still being paid 11% less for the same work as men. This demonstrates the incapacity of the law in addressing the issue of “same pay for same work”, hence being ineffective in addressing the issue of gender discrimination. Occupation Health and Safety (OH&S0 laws are becoming increasingly important as society places greater importance upon the safety of individuals in the workplace. The Occupational Health and Safety Act, 2000 (NSW) governs the implementations of healthy and safety practices in the workplace. The Act is not designed to benefit individual workers but is designed to create a safe work environment for all workers. Penalties for breaches of the act reach a maximum of $825,000 for companies, $82,500 for individuals and up to 5 years imprisonment for causing death or serious injury. The Act was amended in 2004 in response to changes in society’s attitudes towards health and safety in the workplace. Employers are now responsible for providing a safe working environment. The Workplace Injury Management and Workers Compensation Act 1988 (NSW) provides security for individual injured in the workplace. The Workcover Authority us responsible for ensuring compliance with worker’s compensation and OH&S legislation. Compensation is paid for loss of wages related to having to take time off work, loss of use of a body part, damage to clothing and personal effects, related expenses and pain and suffering caused as a result of the injury. These entitlements have been enacted into law as a result of the changing attitude towards the rights of workers regarding health, safety and compensation held by society. A recent in the SMH appearing April 10th detailed the death of a worker working on the desalination pipeline in Tempe. WorkCover arrived on the scene quickly to ensure proper OH&S practices had been implemented and everything to prevent possible injury and death was done on the site. This showing the effectiveness and enforceability of OH&S in regards to safety of employees at work places. The expectations and interests of society are an important factor to consider in analysing the effectiveness of workplace law reform. In order for reform to be effective for society, it must be resource efficient, reflect community standards, be enforceable, and be able to balance the individual and community rights and values. With regards to resource efficiency, employers and employees would argue different ways, but the fact is a good balance between effective regulations of the industry and keeping industry productive and efficient has been found. WorkCover’s operation means that the law is enforceable; it has been shown that the law is adaptive to community standards, and remains effective in balancing the individual and community rights and values. Therefore it can be said law reform is effective in looking after the interests of society. In conclusion, elements of workplace law reform with regards to individual situations have been effective. With respect to the direct employers and employee relationship, including dispute resolution and the nature of the employment contract, FWA legislation has been effective in achieving fairness and justice for both sides, and at the same time reflecting community standards and expectations. In relation to OH&S, discrimination, and compensation, the law can be considered effective because it conforms to most, if not all, of the criteria established to judge the effectiveness of law reform. To conclude, the majority of the law reform is effective in achieving justice for the employer and employee and in reflecting community standards and expectations. Bibliography www.smh.com.au www.workcover.nsw.gov.au/pages/default.aspx www.industrialrelations.nsw.gov.au/home.html en.wikipedia.org/wiki/WorkChoices http://www.industrialrelations.nsw.gov.au/NSW_State_Awards.html http://www.fwa.gov.au/ http://www.fwa.gov.au/index.cfm'pagename=awardsfind http://www.fairwork.gov.au/Pages/default.aspx D. Hamper, B Derwent, A Draper, J Besenberg, C Kenny (2007) Legal Studies HSC. Second Edition, Pearson Education Australia