Research Topics: Employment Law Module

Assignment for Employment Law Module

Assignment for Employment Law Module     Students must submit a 2,500 word essay (plus or minus 10% – penalty 5% if these limits are exceeded).   You must include at the end of your work a full bibliography with references and all cases referred to must be fully cited. Please give a word count after your bibliography, if you fail to give a word count or to include a bibliography you will automatically lose 5%.   Plagiarism is a serious offence with regard to submitting coursework and projects.  Plagiarism is using the work and words of others as if they were your own.  You should ensure that if you are quoting more than six words directly from a textbook, article or report that you place the words in quotation marks and indicate where they come from.  Alternatively you can paraphrase i.e. – put the material into your own words.  Where plagiarism is found in coursework the student will receive zero mark and may also face proceedings under the University code of Student Discipline.  It is also an offence under the code of student discipline to collude with another/others to present a group effort as your own work, individual piece of work.  It is also an offence to copy from another student’s work or to allow another student to copy your work.   ADVICE – your answer should adopt a standard approach to tackling a case study and this:   1.         Read the case and identify the general area of law   2.         Next consider the specific points/principles of the law which are relevant to this particular case study   Write several paragraphs discussing these specific points/principles of law – identifying your source of law (case law and/or statute).  Go for depth rather than breadth – it should not be an ‘everything l know about……..’ approach.   3.         Analyse the facts of the case study and distinguish between important and unimportant factual information.  For example if the case study concerns the unfair dismissal of an employee…  what facts given in the case study lead you to believe that the employer is in breach of contract or has failed to establish a potentially fair reason for dismissal etc etc.  You must consider the rights and duties and possible defences of all parties – apply the relevant law and reach a conclusion and give advice to the parties.       Now consider the following case study.  With reference to the relevant legal and supporting your arguments by relevant statue and case law advise the parties.     The Case Study.               Sarah applied for a position as a secretary with ACME Ltd.  In response to a question on the application form, she indicated that she suffers from arthritis but stated that it does not affect her typing if she uses an adapted keyboard.  Her application was rejected by ACME Ltd because they assumed that Sarah would be unable to carry out the job because of her arthritis.  Sarah had also applied for secretarial position with Beta Ltd.  Sarah again stated on the application form that her arthritis does not affect her typing if she uses an adapted keyboard.  Beta Ltd invited Sarah to an interview where she was required to take a typing test.  Sarah told the employer at the interview that she would need to use an adapted keyboard in order to take the test, but this was not provided.  Sarah failed the typing test and because of this did not get the job.  Sarah was also interviewed by Gamma Ltd who required her to take typing test but did provide an adapted keyboard.  Sarah achieved 50 words per minute but another candidate, who achieved 35 words per minute at the same level of accuracy, was given the job.  The successful candidate does not suffer from any disability.  Sarah’s friend, Tom, is severely facially disfigured following a road traffic accident.  He was turned down for a job with Delta Ltd because they felt that customers and co-workers would be uncomfortable when dealing with Tom.  Tom had also suffered from severe clinical depression for a year following the accident four years ago.  Tom is now fully recovered from the depression but was refused employment by Epsilon Ltd when they hear about his past psychiatric illness.       Advise Sarah and Tom of their legal rights and what remedies or procedures might be available to them to protect these rights.             Credit:ivythesis.typepad.com

Assignment for Employment Law Module

Assignment for Employment Law Module Students must submit a 2,500 word essay (plus or minus 10% – penalty 5% if these limits are ex...

EMPLOYMENT LAW

INTRODUCTION   Employment for individuals is considered a source of livelihood, a means to cope in their daily lives. The wages that employment provides a breadwinner conveys the manner in which he will be able to survive the daily demands of living, particularly in financial terms. This goes to show that being employed is a necessity among individuals. Being employed denotes that an individual has a source of livelihood and is able to fulfil the demands of his life. This paper is going to analyze the case of Sarah and Tom with regards to their search for employment. It is in this context that both have disabilities that might have hindered in their acquisition of their respective jobs. DISCRIMINATION IN EMPLOYMENT   Discrimination with regards to employment indicate a dissimilarity in treatment anchored on the personal attributes of a person, like race or sex, regardless of whether that person’s profile corresponds to the prerequisite of a specific position in the company. This dissimilarity in treatment places him or her at a drawback or constrains his or her admission to gains and chances obtainable to other members of society. The Disability Discrimination Act of 1995 prohibits the kinds of discrimination for all employers like direct discrimination, failure to meet with the responsibility to make sensible alterations, handling a disabled person less satisfactorily, causing a disabled individual to encounter harassment, and persecution of a disabled individual. Discrimination can in fact be direct or indirect. It is direct when imperatives and ways openly prohibit or give partiality to specific people exclusively on the foundation of their membership of a certain group. To illustrate, job vacancy messages that openly puts off submissions from married employees or from individuals over a specific age or with a particular race shows direct discrimination. These types of discrimination are anchored in prejudices and unfair discernments of the capabilities or work ethics of people acquiring to specific groups, regardless of their actual abilities and work experience. Such typecasting is discriminatory for the reason that it unconditionally forces that people from an underprivileged group replicate the features frequently attributed to people from society’s prevailing group. In accordance with the Disability Act of 1995, an employer’s management of a disabled individual adds up to direct discrimination if the handling is on the basis of his/her disability and the conduct is less constructive than the manner in which an individual not having that certain disability is (or would be) handled. This is evident in the case of Sarah when she applied in     Ltd which opted to employ another applicant regardless of the fact that Sarah did better in terms of the examination despite her claim of arthritis. Similarly, the handling of      Ltd is also contentious on the part of Sarah because they assumed that with her arthritis, she would not be able to carry out her job. She wasn’t even given the opportunity to prove that the condition was not affecting the applicant’s work. This is an open presentation of direct discrimination. On the other hand employers have a responsibility to carry out sensible adjustments for disabled job candidates or staff when a rule or practice or a physical attribute of their site puts the disabled individual at a considerable drawback. Sarah could thus take legal action on the part of the company   Ltd since she was not provided for with the appropriate equipment that would make her completion of the job easier. The employers on this context may not claim that it is unreasonable for them to make an adjustment since the adjustment will considerably improve the performance of the applicant, as revealed by her performance with the non-adapted (regular) keyboard. Basically, all of the companies in which Tom and Sarah have applied on are liable of discrimination. This is presented by the fact that the applicants have affirmed their disability; they have been treated less favourably as compared to the other applicants. However, aside from the condition of the applicants, the liabilities of the employers should also be taken into account in order to avert any other legal issues on their position.       EMPLOYER’S DUTY This part will discuss the common law liabilities of the employer in order to look into the side of the employer’s case with regards to employing disabled individuals. The employer’s duty to his workers is usually addressed under four titles. These include the provisions of a competent staff, a safe place of work, proper plant and equipment, and a safe system of work. These are merely attributes of the more comprehensive duty to perceive that reasonable care for the wellbeing of employees is acquired. Moreover, under the principle of common employment at common law a master was not legally responsible for the negligent injury brought about by the exploit of one of his employees towards a fellow-servant partaking in a common employment at the instance of the mishap. Nevertheless, the principle was done away with by the (Personal Injuries) Act 1948, s1 (1). Similarly, the employer’s duty to his workers is personal and non-delegable. He can hand over the implementation of the duty to other people, whether his workers or autonomous contractors, but not liability for its negligent implementation ([1937] 3  628)   COMPETENT STAFF The employer has a responsibility to choose capable fellow employees, and a comparative responsibility to provide them appropriate training in the utilization of equipment. This might have been taken into consideration by the employers in    Ltd when they did not acquire the services of Tom because of his psychiatric illness. This is revealed at (1951) 95 655. On the other hand, if an employer is aware or can anticipate that the actions that are being carried out by his/her workers may bring about physical or psychiatric injury to an associate employee, it is open to question that the employer could be in violation of duty to that worker if he did nothing to put a stop to those actions when it was in his authority. This reflects the decision of      Ltd on the case of Tom since the presence of the applicant as an employee might have been detrimental to the operation of the whole company. An illustration of this case is presented in  (2000) 27 July. Moreover, the non-acceptance of the application of Tom might have been based on the contemplation of the employers in    Ltd and     Ltd that the applicant might be subject to harassment by the other employees. This may well be for the wellbeing of the applicant. This is also revealed in     (1965) , 25 May. The applicant here claimed damages in opposition to her previous employers, claiming that harassment and maltreatment by fellow-employees had brought her almost to a nervous breakdown. She argued that the defendants have to have offered realistic circumstances whereby she may well accomplish her duties, should have acquired practical measures to look after her from unwarranted intrusion by her co-workers, and had been unsuccessful to bring to bear due care and proficiency in upholding suitable discipline. It was understood by the judge that these accusations should not be stricken out; but that a further accusation that one of the defendants’ associates had been bad-mannered to her was, as grounds of action, misconceived, and have to be stricken out. SAFE PLACE OF WORK An employer has to acquire such measures as are reasonable to make out that the site is safe. This tenet is stated in  [1945] 1 235, 236. In this case, the applicant was employed by the defendants to work in one of their shops, in which there was a line of vats holding a fluid called suds and employed for lubricating the lathes. The liquid was often trickled while being taken to the lathes, therefore causing the floor to be greasy. So as to address this hazard, labourers were employed to scrub the floor occasionally, or to place sawdust on it. Over the queue of vats was a water tap and underneath was a movable board made of wood, coined as a duck-board, which was utilized for reaching the vats or the tap. While going to the tap with the intention of cleaning a teacup for her own utilization the applicant lost his balance on the duckboard and was ill with personal injuries. At the instance of the accident, suds had been speckled over the duck-board and no sawdust had been placed on it. It was decided by the Court of Appeal that the responsibility of the employer to offer safe appliances broadens to envelop all actions generally and realistically incidental to the every day work, and, consequently, extended to the applicant’s case. This instance is also applicable to employees with disabilities. It is in this context that the employer should provide them a safe place to work regardless on their condition.   ADEQUATE PLANT AND EQUIPMENT An employer has a responsibility of acquiring reasonable care to offer appropriate appliances and to sustain them in a suitable condition ( [1891]  325, 362). If the essential equipment is not available and this brings about a mishap he will be legally responsible, even though he is not essentially compelled to take on the most recent developments and equipment ( [1915] 734). This is reflected on the case of Sarah with regards to the companies she had applied with,     Ltd particularly. The company is legally responsible to provide her with the equipment she needed in order to triggering any other forms that could aggravate her condition.    Moreover, if the member of staff would not have employed the tools if it had been provided, the employer’s breach of duty is not the grounds of harm ( [1962] 1 623). Similarly, Section 1(1) of the Employers’ Liability (Defective Equipment) Act 1969 makes an employer legally responsible if a worker experiences personal injury throughout his employment because of an imperfection in equipment granted by the employer, and the fault is ascribable completely or to a degree to the mistake of a third party, whether identifiable or not. However, this has been upturned the judgment of the House of Lords in [1959]  604. In addition, an employer will not be legally responsible if an employee fall short in making the appropriate employment of the equipment provided for, nor where the worker acted unwisely and imprudently in acquiring the erroneous instrument for the job, presupposing that, where essential, the employee has been provided with sufficient coaching in the utilization of the equipment.   SAFE SYSTEM OF WORKING It is an issue of fact whether a specific process needs a system of work in the concern of safety, or whether it can sensibly be left to the worker commissioned with the job. It is typically applied to employment of a usual kind where the appropriate application of managerial control would identify the system of working, provide tutoring on safety and support the employment of safety tools. (   [1943] 1  539) Even though usually thought of in the context of physical security, it is apparent that the responsibility to offer a safe system of work similarly expands to an employee’s mental health. This might have been the consideration of the employers of Tom in     Ltd considering his history of psychiatric illness. This is shown in  [1995] 1  737. Here, it was decided in the QBD that where it was practically projected to an employer that a worker might be ill with a nervous breakdown for the reason of the stress and weight of his workload, the employer was under a duty of care, as an element of the duty to offer a safe system of work, not to provide the worker psychiatric harm on the basis of the quantity or disposition of the work which the worker was obligatory to execute. On the facts, before the illness, it was not convincingly anticipated to the local authority that the applicant’s workload would bring about to a substantial threat of mental illness. Nevertheless, as to the second illness, the local authority are supposed to have anticipated that if the applicant was once more caused to experience the similar workload there was a danger that he would undergo another nervous breakdown which would almost certainly finish his job as an area manager. The local authority have to consequently to have granted extra aid to lessen the plaintiff’s workload even to the detriment of some disturbance of other social work and, in choosing to carry on to employ the applicant devoid of granting valuable assistance, it had acted unfairly and in violation of its duty of care. It followed that the local authority was legally responsible in negligence for the plaintiff’s subsequent nervous breakdown and that as a result there would be decision for the applicant.   Conclusion   The case of friends Sarah and Tom at first glance presents a discrimination suit against the employers. This is because of Sarah and Tom’s cases of arthritis and disfigurement. The discussions above presented that they indeed have a claim for discrimination. Nevertheless, one must also take into account the liabilities present on the part of the employer when they are to employ such individuals. However, the two individuals must also know that their rights are protected by the Disability Discrimination Act (DDA) 1995. This Act makes discrimination on the grounds of disability unauthorized. Employers may not discriminate in opposition to a disabled individual when recruiting and employing. Where discrimination happen based on disability, this is deemed as direct discrimination and cannot be vindicated. Discrimination similarly takes place when an individual is, for a reason associated to their disability like unreasonably treated less satisfactorily than others; cause to expereience harassment. Furthermore, discrimination similarly takes place when an employer is unsuccessful in making a practical alteration corresponding to a disabled individual. Credit:ivythesis.typepad.com

EMPLOYMENT LAW

INTRODUCTION Employment for individuals is considered a source of livelihood, a means to cope in their daily lives. The wages that em...

ASIAN PACIFIC AMERICAN COMMUNIT LEGAL MEMO

Employer sanctions for hiring undocumented workers should be maintain/replace It was said that ‘employer sanctions’ is a misnomer, as signed by President Reagan, employer sanctions was supposedly enacted to protect jobs for U.S. citizens by punishing employers with a fine for knowingly hiring undocumented worker but, it is a fact that there were few employers are actually sanctioned under the law like for instance, the government issued to employers a total of only three notices of intent to fine, the limited number of enforcement actions against employers, there are strong political and economic interests that favor expanding the supply of cheap labor. Generally, it is not the employers that are punished by the law, but working people in a specific country. (, 2001) The government gives employers a ‘hoodwink and a nod’ to hire undocumented workers, authorizing them to wield unchecked power and to use immigration status to legally exploit workers. Moreover, by denying undocumented workers the right to make a living, our government creates an underclass of laborers who are criminalized and forces them to accept the most undesirable, inhumane working conditions and to compete with undocumented workers, native-born Americans and documented workers must then lower their standards or else be replaced by cheaper labor, fueling a cycle of resentment and hostility among working people. (, 2001)   The real purpose behind is argued to be that the purported intent of employer sanctions was to deter illegal immigration and to protect American jobs by targeting the demand for undocumented workers. Yet, government, community groups, labor unions and scholars recognize that employer sanctions have accomplished neither goal. However, the employer sanctions did not protect – it made the undocumented workforce even more attractive by stripping away their rights to demand fair conditions and forcing U.S. citizens and documented workers to compete with them in a race-to-the-bottom. Aside, it did not deter, only increased the demand for a vulnerable group of workers and invigorated employer demand for cheap labor. (, 2001)  Today, it is believed that there are almost eleven million undocumented immigrants in the U.S. involving a dramatic increase from the estimated four million present when IRCA was enacted. Furthermore, in its quest to remain competitive, the U.S. government along with business interests must maintain an economy wholly dependent on the exploitation of undocumented and documented workers and desire more undocumented workers as the government-created pull factor of employer sanctions proves to be a powerful force in channeling more undocumented workers to the country. (, 2001)     Employer sanctions, by criminalizing undocumented workers, possibly created an environment whereby undocumented workers are favored by unscrupulous employers and can easily gain employment as exploited labor. The situation, has led to the expansion of the underground economy, making the labor law unenforceable, law abiding employers who compete with dishonest employers must also lower their standards and conditions. (, 2001) On the other hand, undocumented immigrants are uprooted from their native countries, separating families and diminishing the chances for communities to come together to change conditions in their native country. There argues that repealing employer sanctions means: workers will no longer easily be pitted against one another to compete for jobs and will have greater opportunities to organize, which will lead to a greater enforcement of not only labor but other laws as people come out of the shadows and the destruction of the foundation that regressive anti-immigrant measures rest on and that these changes will seriously weaken the incentives created by the government when it enacted employer sanctions. (, 2001)           Thus, employers will no longer have the same insatiable desire to seek out undocumented workers because they will no longer be as vulnerable. Some argue that strengthening penalties against employers and setting up a better system for verifying a workers work authorization would solve the problem, the involved position is flawed at its core as the call to reinforce employer sanctions is really just a ruse for the past years since IRCA have shown and there will be used to push undocumented workers further underground and continue to downgrade the conditions of both immigrant and citizen workers. (, 2001) The government will need to continue its consent to the hiring of undocumented workers. Employers also will be able to find other ploys to evade sanctions such as increasing their use of subcontracting. The criminalization of immigrant workers has hurt all workers and communities. Employer sanctions put labor law in the hands of employers and not workers. As a consequence, employer sanctions become a versatile tool for employers to further exploit workers. Employers can readily invoke sanctions in order to pit workers against one another based on immigration status, retaliate against undocumented workers who stand up and crush any unified organizing efforts and defend against their own law-breaking actions by arguing that undocumented workers have no rights because they are illegal – that can be an unfair indication for principles in the workforce. (, 2001)   The employer sanction is also the cornerstone of a series of regressive, anti-immigrant laws people are seeing as of the present times. It is also being used to justify new state laws that deny undocumented injured workers their owed compensation and medical benefits. In other parts of the country, the employer sanctions constitute the basis of the national trend to attack the rights of undocumented workers. The repeal of employer sanctions will lead to greater labor protections for all working people and can actually raise our standards. It will diminish employer control over the workforce and counter the trend of regressive legislation, by decriminalizing undocumented immigrants and bringing this underclass from out of the shadows, the abolition of employer sanctions will also allow for greater security in communities and lead to a safer, more just society for  the citizens. (, 2001) Furthermore, by forcing an entire class of workers into the shadows of society, employer sanctions make not only labor law but all laws unenforceable. It discourages people from openly exercising their civil liberties or coming forward to report crimes and illegal activities, threatening the security as a workers’ movement built by immigrants, there believes that the nation should embrace immigrants for the diversity and values they bring, rather than fear them as threats to values or jobs. (, 2001)       Therefore, undocumented workers and their families should be provided permanent legal status through a new legalization program; employer sanctions and such type of system should be replaced with a system that targets and criminalizes business behavior that exploits workers for commercial gain; immigrant workers should have full workplace rights, including the right to organize and protections for whistleblowers; labor and business together should design mechanisms to meet legitimate needs for new workers without compromising the rights and opportunities of workers already a part and guest worker programs should be reformed but not expanded. (, 1999) The system does not work: not only does it not deter the hiring of undocumented workers; it actually protects employers who violate labor law as a matter of business practice. Instead of punishing workers, the enforcement system should be replaced with one that further criminalizes smuggling and production of fraudulent documents for commercial gain, creates stiff penalties for employers who exploit immigrant status to interfere with workers’ exercise of employment and labor rights and gives protected status to those immigrant workers who courageously come forward to protest violations of their workplace rights. (, 1999) The workplace is fairer and safer for all when the rights of every worker are equally protected and enforced by law.     Amicably, employers use the prohibition against hiring undocumented workers as a tool to excuse mistreatment of workers: the employers seek out and hire undocumented workers and the workers’ immigration status only becomes important to the employer when the worker files a claim for unpaid wages or suffers a work-related injury. Employers performing cost-benefit analysis may decide that it is cheaper to violate the law than to comply with it. The law is ineffective and easily evaded as employer sanctions was never effective as a deterrent to employers hiring of undocumented workers. (, 1999) The undocumented population totals millions more people than were present in the United States when the employer sanctions provisions were being adopted as the employers who would abuse undocumented workers have found ways to undercut the law and that an employer might gain from hiring undocumented workers should be eliminated by targeted enforcement of labor laws in favor of every workers like for example, those in low wage industries and if corrupt employers are permitted to seek out undocumented workers and then use their immigration status as a shield to escape full responsibility for on the job injuries, as the workers will have an unfair advantage over other employers. The states should not create financial incentive to ignore health and safety laws respectively. (, 1999)   REFERENCES     Credit:ivythesis.typepad.com

ASIAN PACIFIC AMERICAN COMMUNIT LEGAL MEMO

Employer sanctions for hiring undocumented workers should be maintain/replace It was said that ‘employer sanctions’ is a misnomer, as s ...

‘The Federal goverment’s Work Choices legislation is neither simple nor fair.’

‘The Federal Government’s Work Choices legislation is neither simple nor fair.’     Aftermath of the Work Choices Legislation Enactment          A few months after the Workplace Relations Regulations 2006 became effective; the governments of New South Wales, South Australia, Western Australia, Queensland and Victoria together with Unions NSW and Australian Workers Union challenged the constitutionality of the statute in the High Court. The arguments revolved around the applicability of section 51 of the Australian Constitution to industrial arbitration. Section 51 provides the Commonwealth Parliament with the power to legislate regarding “foreign corporations and trading or financial corporations formed within the limits of the Commonwealth”. This provision became popularly known as the ‘corporations powers’. In relation to this provision, on one hand, the state governments contend that section 51 does not contemplate its use for industrial arbitration. The issue of the extension of the provision covering corporations to employees as the work choices legislation does was raised. Moreover, the solicitor general of New South Wales propounds that the work choices legislation should have been deemed unconstitutional since the establishment of the federal government more than a century ago. State governments contend that states hold power for industrial relations so that the work choices legislation was enacted outside of the ambit of power of the commonwealth legislature. On the other hand, the federal government argues that the work choices legislation is consistent with the constitution and permitted by section 51. After the submission of arguments, Justice Haynes criticized the contentions of the state government as ill-prepared and that the difference in the context of labour relations more than a century ago compared to the present could change the interpretation of constitutional provisions. (2006) The enactment of the work choices legislation has opened constitutional issues affecting the relations between states. Tackling the simplicity and fairness of the work choices legislation does not only focus on the merits of the provisions but also extends to the bigger issue of its constitutionality and the consistency between the state and federal legislation powers.   Work Choices Legislation Principles & Provisions   Statutory Coverage Issues               Coverage of the work choices legislation extends to employers and employees falling under Australia’s new federal system. The work choices legislation system operates by combining constitutional powers in order to provide a uniform labour relations statute covering majority of employers and employees in Australia including financial, trading and foreign corporations together with their employees, employers and employees in the ACT, Northern Territory and the Islands, commonwealth authorities and its employees, employers and employees of waterside, maritime and air commerce operating intra or inter territory, interstate and overseas, and most employers and employees in Victoria. (2006;  2006)   In considering the initial issue of statutory coverage, the work choices legislation does not offer much simplicity because there are a number of qualifications to coverage. Employers and employees falling under the new federal system are covered by the work choices legislation. However, the coverage of the statute provides the employers and employees under the entities and firms included under the new federal system indicating that coverage under the new federal system is qualified by the categories of constitutional corporations and other categories mentioned above. To determine if an entity or firm is covered by the new federal system it must first be determined whether the entity is a constitutional corporation. If so, then the entity is covered by the new federal system making it fall under the operation of the work choices legislation. For other entities not qualifying as constitutional corporations, other categories apply such as the type of business including financial, trading and foreign corporations and territorial location such as ACT, Northern Territory and the Islands. This means that in determining coverage, employers and employees have to determine whether they are covered based on the general rules taken together with the various qualifications. Doing this task takes time especially when the guidelines are not clear enough to be applicable in different circumstances and there are differences in opinion over the operation of the qualifications.                   The operation of the work choices legislation involves various transition periods for the different circumstances. The statute provides that employers and employees covered by the federal system before the enactment of work choices will receive entitlements currently received prior and during the transition into the work choices legislation system. Constitutional corporations together with other employers not currently forming part of the federal system but are nevertheless covered by the statute will become covered by the new federal system. ( 2006;  2006)             The operation of the transition provision entails two things. One is the application of current entitlements until such time that the work choices legislation provisions are fully integrated into the human resource management system of the entities covered. This offers a semblance of simplicity since it recognizes and clarifies the process that entities covered by the work choices legislation have to go though before fully integrating under the coverage of the law. The other is the further clarification on coverage. Constitutional corporations do not necessarily fall under the new federal system but constitutional corporations covered by the work choices legislation also become covered by the new federal system. Employers and employees need to consider whether they are constitutional corporations. If so the next thing to consider is whether they form part of the new federal system or not, with the criteria for falling under the federal system dotted with qualifications. If not, the last consideration is whether they are covered by the work choices legislation, with the criteria for coverage further mottled with qualifications. If employers and employees interested in determining wether they are covered by the law successfully pass through the general guidelines and qualifications to learn that they are covered by law then current entitlements apply prior to full transition.       There is a separate transitional system for employers and employees of corporations that do not fall under the federal system before the commencement of the work choices statute. These corporations are provided with a five year transition period within which to decide whether they would like to be incorporated into the new federal system. After this period, the corporation opting not to join the new federal system would fall under the state system. Moreover, the employees not eligible for coverage under the work choices such as employees of unincorporated business firms, a number of state government employers, and sole traders or partnerships except those entities or firms falling under these categories in Victoria together with the territories will fall under the coverage of relevant state laws. (2006;  2006) This means that in the operation of the work choices legislation, entities are classified under the general division of mandatory coverage and coverage by choice. The entities mandated by the federal statute to be covered by law follows the guidelines for coverage and transition. Entities not covered by the mandatory application of the law are given the option by the statute to decide on their coverage. The period given to decide the option for coverage is five years. It is also within the five year period that entities choosing to be covered pass through the transition period prior to integration into the new federal system. Otherwise, if entities opt not to be covered by the work choices legislation, then these would be covered by state law. Coverage in the operation of the work choices legislation turned out to be a complex matter in terms of actual compliance by employers and employees. There are several considerations requiring attention even before the assessment of the operation of the law itself. Employers and employees need to determine whether the entities under which they belong are covered by mandatory or optional coverage. In mandatory coverage they have to determine whether they are covered under the general rule or if not whether they are covered based on the qualifications. This would determine the transition rules. In optional coverage, they have five years within which to decide coverage and integrate into the new federal system. These seem simple enough but with the interplay of state and federal laws, the consideration of these issues becomes more complicated in application. ( 2006)   Employer Issues               The primary concern of employers towards the work choices legislation is the added burdens to their business operations such as additional record-keeping tasks, greater coordination in compliance, and necessary balanced consistency between the federal and state labour laws. Initially, business firms answer in the affirmative when asked about their perception of the work choices legislation. Positive answers are usually based on knowledge of the purpose of the federal law of simplifying and clarifying labour legislations as well as providing uniform guidelines applicable to widest coverage possible for employers and employees. However, after experiencing the operation of the law, business firms develop concerns on the viability of the statute. There are two general concerns on the part of employers.             The first concern is the lack of complete information on the guidelines to achieve compliance (2006). Lack of information then prevents business firms from fully understanding the provisions of the law in order to determine whether they are covered by its provisions by legal mandate or as an option. They also find it difficult to determine the areas of labour relations that should be adjusted to comply with the law. There is also the apprehension towards the manner of determining the balance or compatibility between federal and state laws in order to comply with federal and state laws without incurring any actions for violations of any or these jurisdictional legislations. The lack of information is caused mainly by the concentration of business efforts towards the viability of its business operations since it already has an existing human resource management system previously deemed compliant with labour laws prior to the work choices legislations. Business firms lack the time and resources to seek comprehensive information in order to support full compliance with the work choices legislation. Having a complete knowledge of the operation of law involves consultations with the internal legal team or if there is none with an external legal firm. Expected changes due to the operation of the work choices legislations also involves resources in terms of changes in the human resource management system such as the establishment of new labour relations infrastructures and training of managers and selected personnel. These comprise additional financial burdens to business firms that affect their business operations. Confusion and the complexity of the work choices legislations also prevent compliance that adds to the apprehension of business in addressing legal compliance in their operations to prevent unnecessary delays and hang-ups in the future.                 The second concern involves the administrative burdens that come with the operation of the law such as additional paper work and compliance requirements (2006). The concern of business firms towards additional administrative burdens is based on the necessary transition period for business firms covered by the work choices legislations by mandate or by option. Transition means that there would be duplication in paper work as business firms still maintain the current entitlements but at the same time gradually establishing the new system. During this period, there is also need to conduct information drives throughout the entire organization in order apprise concerned individuals on the changes to be expected and their necessary contribution to the achievement of the change necessitated by law. The process of transition involves shifts in the organizational structure, changes in task delineations as well as the necessary paper work documenting these changes.   Employee Issues                 Employee issues regarding the work choices legislations mainly focus on the consequences of its legal provisions, particularly those that affect the rights of unions and collective representation related to the issue of fairness of the law. In Australia, 23 percent of the workforce has trade union memberships. Out of this number, only 17 percent are employed in the private sector. This means that majority of employees with union membership are employed by government entities (2006) Several unfair provisions have been pointed out by union leaders. One provision is the requirement of secret ballots prior to the extension of legal protection to industrial actions (2006). In practices this provision works against the ability of unions to hold concerted action. Holding secret ballots mean that the employer becomes apprised of the impending industrial action giving the employer time to determine options of preventing the action or even influencing the casting of ballots. These defeat the purpose of concerted action. Another provision is the prevention of union entry in business firms with all employees covered by the Australian Workplace Agreements (2006). This agreement comprises a contract between the employer and individual employees indicating the rules governing the employer and employee relations. The contract is binding between the parties provided only that it complies with certain mandatory requirements such as the inclusion of occupational health and safety as well as compensation and training arrangements. This means that the contract could even circumvent state laws as long as there is sufficient compliance with the necessary inclusions. The lack of unions in this type of working environment prevents employees from holding any action against the labour practices of the employer as long as these practices no matter how unfair are not deemed as violating labour laws. Thus, the provision opens a situation where employees individually negotiate with employers without the benefit of collective bargaining in the context of the recognition of the innate inequality in the status and bargaining power of employers and individual employees. Still another provision covers orders involving no strike together with a cooling-off period in case of the determination of significant harm accruing to third parties (2006). In theory these provisions provides a semblance of order to concerted action and ensures the safety of third persons. However, these provisions can be easily manipulated by employers in order to prevent or arrest any plans or actual concerted action by employees. Depending upon the strength of the union, a no strike order dissipates what could have been an available alternative channels for grievance venting of employees. The determination of significant harm and the identity of third persons are also subject to varying opinions requiring intervention in application. Lastly, another provision involves the power of the minister to terminate bargaining period in case doing so is deemed to prevent the effects on essential services or avert dangers to the economy (2006). On one hand, this is a sound public policy because it secures the welfare of the public by preventing any effects of the bargaining process to the continued provision of essential services and other economic factors. On the other hand, this weakens the right of unions to seek collective bargaining without providing any viable alternative or channel through which union members can collectively negotiate employment terms.           Answering the Issue of Simplicity & Fairness               The federal work choices legislation is not simple or fair with the brunt of the issue of simplicity greatly experienced by employers and the fairness issue felt by employees. The work choices legislation is not simple because it involves the issue of constitutionality raised by state governments in the High Court. Although the law remains valid, it involves informational difficulties and administrative burdens to employers negatively affecting compliance such as in the area of coverage. The work choices legislation is not fair to employees. In the case of union members, the restrictions provided by the work choices legislation mean lesser bargaining power for collective negotiations defeating the purpose of union membership. Lack of simplicity and fairness is also supported by the impending reforms despite the less than one year of its operation. It definitely has problems and the reforms should address the achievement of simplicity and fairness to establish a viable law.          Credit:ivythesis.typepad.com

‘The Federal goverment’s Work Choices legislation is neither simple nor fair.’

‘The Federal Government’s Work Choices legislation is neither simple nor fair.’ Aftermath of the Work Choices Legislation Enactment...

What challenges of China Wal-Mart will face after its first union formed in July 2006, and what challenge will China Wal-Mart will face if the proposed Labor Contract Law finally be enforced in 2007

The challenges of China Wal-Mart will face after its first union formed in July 2006 There are certain challenges that China Wal-Mart will face after its union formed in July 2006. Thus, Wal-Mart workers in Quanzhou in south-western China, have formed a local union. As foreseen by Chinese legislation, this is a local of the All China Federation of Trade Unions ACFTU. Workers do have the right to form local unions, but until now, Wal-Mart has effectively held ACFTU outside its markets. Wang Zhaoguo, president of the All-China Federation of Trade Unions, has expressed serious concern over low trade union organizing rates in the country’s fast growing foreign enterprise sector. Wal-Mart, may need special legislation in order to ensure that also foreign enterprises allow their workers to establish ACFTU locals. The challenge will imply Wal-Mart’s lack of sensitivity when expanding in China has got an abrupt end and it did not take long before the first local trade union emerged in a Wal-Mart store in South-western and that Wal-Mart made record losses in Japan as the consumers world-wide seem to shun its social dumping and doubt its quality. ( 2006) Also, Wal-Mart lost almost half a billion USD in Japan just this year and adds to what is emerging as an embarrassing failure in trying to export the company’s operating concept abroad. Furthermore, Wal-Mart, which started doing business in China in 1996, has previously said that its employees are free to set up unions if they wish and has insisted it conforms with Chinese law.  As Wang Zhaoguo, president of All-China Federation of Trade Unions (ACFTU) – which was established by the ruling Communist Party and claims some 150 million members – has been putting pressure on Wal-Mart. ( 2006)     Wal-Mart has attracted criticism in the US and Canada for its perceived anti-union stance and there have been union pickets outside its North American stores. Independent trade unions are illegal in China, with all workers belonging to ACFTU. However, labor analysts say the ACFTU has had a poor record in improving worker rights. China is a major source of cheap goods for Wal-Mart’s US operations, with bn of merchandise sourced there in 2004 but in terms of Chinese outlets it has lagged behind Carrefour of France although there are plans for Wal-Mart China to build 18 to 20 new stores during 2006. ( 2006)  The ACFTU responded by setting up an office targeting a Wal-Mart in the southeastern city of Quanzhou, where employees voted July 29 to form the company’s first Chinese union since then, employees at 16 other Wal-Marts in China also have formed unions, according to the ACFTU. Thus, unions in China usually represent the workforce of a single company or outlet, rather than a whole industry. The ACFTU has described the creation of the Wal-Mart unions as a boost to its campaign to reach a target of unionizing employees at 60 percent of China’s foreign companies in its worldwide operations and would cooperate with the ACFTU to organize its Chinese employees. ( 2006) Wal-Mart miscalculated in thinking it could use the same anti-union tactics in China that it does around the world. If, like its main competitor in China, the giant European retailer Carfour, Wal-Mart had welcomed in the ACFTU to establish union branches in Wal-Mart superstores, those union branches would not have challenged management. The process would have been similar to so many other workplace union branches set up by the ACFTU in foreign-funded enterprises from the top down. ( 2006)     The district-level union would have sought management approval and cooperation to set up a union branch. Once an agreement was struck, management and the local union would have decided together on a mid-level PRC Chinese manager to serve as the union chair, without a union election, the announcement would have been made to the employees about the formation of a new union branch, or in some cases, no announcement would have been made, the union does not even perform the traditional welfare functions it does in state-owned enterprises, where it holds occasional entertainment events, distributes gifts to the entire workforce during major festivals, pays visits to the sick and injured and functions sometimes appreciated by workers. ( 2006) The image that China has become a big sweatshop has also been disturbing to union leaders. From 1999 the ACFTU became determined to expand membership in the foreign-owned sector. About three years ago, it selected Wal-Mart as a special target. The ACFTU was taking a leaf out of the global anti-Wal-Mart movement, targeting the biggest and most high-profile company: if Wal-Mart falls into line, other foreign companies in China that refuse to accept unions will have to follow suit. When Wal-Mart refused to let the ACFTU into its stores, as was normal practice for Wal-Mart internationally, the ACFTU made a series of unprecedented moves. ( 2006) For the first time the ACFTU openly threatened to take a foreign company to court for violating China’s trade union law by barring the union. Wal-Mart cleverly retorted that the law says joining a trade union is voluntary and that it is up to the employees to apply. Since none had, Wal-Mart was not violating any law. The ACFTU had never engaged in grassroots organizing. Going among workers to agitate to form a union instead of asking management for permission was alien to ACFTU union officials, and the ACFTU was at a loss as to how to go about it. For a long period it persisted in seeking management’s cooperation so that a union branch could be introduced in a top-down fashion. ( 2006) Furthermore, the ACFTU realized that Wal-Mart employees would need to come forward to apply to set up a workplace union, and that to accomplish this, the ACFTU would have to resort to grassroots organizing techniques. Though widely used by “normal” trade unions elsewhere in the world, the ACFTU had no experience in this. The organizing efforts would have to be kept secret from Wal-Mart’s management, just as unions elsewhere often operate in the face of hostile management. ( 2006) According to recent Chinese newspaper reports, local union officials sought to raise Wal-Mart employees’ consciousness by approaching them after-hours away from Wal-Mart’s premises and giving them relevant literature to read, to convince them of the benefits of a trade union branch. (2006) According to the trade union law, a minimum of twenty-five signatures are needed for an application to establish a branch. Having secured the requisite number, a district union in Fujian Province sprang a surprise on Wal-Mart last July 29 and had declared that a union branch has been founded at a local Wal-Mart superstore as ACFTU and Wal-Mart executives signed a national memorandum recognizing union representation at Wal-Mart. ( 2006) The moment Wal-Mart was informed of the new trade union branches in its stores, anti-union activities went into high gear. Big meetings were called at which, according to Chinese newspaper reporters, warnings were duly announced that those who join the union would not have their contracts renewed. Wal-Mart also announced that it would not pay the union the two percent payroll union fees. It tried to discredit the ACFTU by accusing it of bribing employees to join the union. Wal-Mart also charged that the workers had not joined voluntarily, in violation of the Chinese trade union law. ( 2006)       Wal-Mart union branches will support management in exercising its management rights in compliance with the law, will mobilize and organize the employees to fulfill their responsibilities, and will cooperate on an equal basis with management in order to allow the enterprise to develop pleasantly and read as a concession by the ACFTU, but the emphasis on compliance with the law in management practices and sharing equal responsibilities and rights between the management and union may actually give the union an advantage. ( 2006) There are union officials and local unions who understand the principles of organizing and are willing to push the limits. But they are constrained by pro-capital forces within the Communist Party, the government and the ACFTU on the one hand, and domestic and international anti-union forces on the other. The ACFTU’s confrontation with Wal-Mart has opened up a means for reformers to operate in future, and has set a precedent for Chinese workers to take on their employers and to demand union branches, many workers in foreign-funded and private firms have lacked support from the union federation. ( 2006) Sometimes they have engaged in wildcat strikes or taken to the streets to demand their rights. Very seldom has it been envisioned that they could use legally-sanctioned means to set up their own union branches, or that they might be given an opportunity to work within the space provided by the ACFTU structure. The formation of trade union branches inside China’s Wal-Mart stores has created an international precedent. ( 2006) It can provide Wal-Mart workers and trade unions in other parts of the world with a leg up in their own efforts to organize Wal-Mart. To continue to dismiss the ACFTU’s efforts is not the wisest tactic, it is pertinent to comment on what specifically obliged Wal-Mart in China to concede. It was not the independent power of China’s trade union organizing efforts.     The enterprises provided workers with an iron rice bowl including lifetime employment and welfare benefits. There was no necessity for the union to organize. Thus, today the ACFTU has no ideological underpinnings nor any independent capacity or tools to counter capital. Its victory over Wal-Mart depended upon the clauses in the Chinese labor laws and the power of the Chinese state to enforce them. Thus far, despite the great efforts by American trade unions to organize Wal-Mart employees, not even one union branch has been set up. (2006)   The challenges of China Wal-Mart face if the proposed Labor Contract Law finally be enforced in 2007   The Chinese labor laws are the fulcrum around which the discourse on industrial relations is anchored. The laws are the tools used by all sides to argue their positions. Wal-Mart used the Chinese trade union law to refuse to let the ACFTU set up unions and the ACFTU in turn used the procedures stated in the law to set up union branches. In recent years, workers too have become accustomed to use the law to fight for rights, demand justice and compensation, as seen in a rapidly mounting number of court cases. According to the clauses of the Chinese labor law, setting up a trade union branch and getting recognition for it is, legally speaking, as easy as ABC, given the desire by China’s unions to expand membership, if groups of Chinese workers in the coming years use this method to set up trade unions branches and then affiliate them to the ACFTU, it might well provide the workforce with a voice. (2004)     Aside, under China’s labor law and the present political situation, they may find this politically feasible and more productive than fighting to set up autonomous trade unions as advocated by China Labor Bulletin and some Western trade unions that call on China to permit autonomous trade unions. Aside, Wal-Mart’s infamous wage cap seems to apply only to greeters, cashiers, cleaners, guards and ordinary people. The law would impose heavy fines on companies that do not comply. And the state-controlled union the only legal union in China would gain greater power through new collective-bargaining rights or pursuing worker grievances and establishing work rules. Over the past several years, the PRC government has tried to improve the protection of workers’ rights. (2004) In particular, the State Council and MLSS have issued directives to clear wage arrears for migrant workers whose previously ambiguous legal status and inadequate access to legal channels made them susceptible to abuse. The problem of unpaid wages for migrant workers may be particularly important because of their large numbers as estimated to be 120 million and because the problem appears to be widespread which has launched a campaign to promote the use of labor contracts in all enterprises, with the goal of ensuring that at least 90 percent of all employees in China have contracts by the end of 2007. Two responses have caught the attention of foreign investors: the draft Labor Contract Law and the renewed ACFTU campaign to unionize workers in FIEs. Observers have widely noted that many provisions in the draft Labor Contract Law appear to favor workers. For instance, the draft law would require employers to seek the permission of the trade union before terminating any labor contract and to negotiate the terms of mass layoffs that involve more than 50 employees. (2004)     The draft law also indicates that if an employer and an employee disagree over the interpretation of a labor contract, the ambiguity should be resolved in favor of the employee. Meanwhile, some labor experts have noted that as more Chinese are finding employment in private and foreign invested companies, ACFTU may have undertaken this campaign to boost its membership and revenue.  The ACFTU leadership presumably recognizes that it must make itself useful to the millions of workers in FIEs and private Chinese enterprises or perish as state-owned enterprises are reformed. In an apparent reflection of this new attitude, at the 2003 annual ACFTU congress, the federation made a direct appeal to a multinational retail corporation, Wal-Mart Stores, Inc. Union spokespeople urged Wal-Mart to establish trade unions and stated, ‘’For companies depriving the rights of employees to establish trade unions, we reserve the right of resorting to lawsuits.’’ The union federation leadership is surely aware that the actual employers they must deal with are not only Wal-Mart staff in retail outlets, but also a wide range of contractors and subcontractors as the union recognizes that the power to change conditions among the subcontractors is in the hands of the multinational retail giant (2004). There suggests that Wal-Mart should mirror Carrefour’s strategy of mixing up its store formats to quickly penetrate both large and small markets in China, rather than focusing on opening more big-box supercenters that are primarily skewed toward larger cities. Moreover, Wal-Mart can emulate Metro’s strategy by joining forces with local developers as a means to bypass local bureaucratic traps and procure prime locations. The Chinese market presents unique cultural, infrastructure and bureaucratic hurdles not just for Wal-Mart but for foreign retailers, multinational corporations has used to operating at national and multinational levels, face unfamiliar supply chain fragmentation and local protectionism within China. Wal-Mart confronts the consequences of centuries of provincial autonomy and self-sufficiency. But modernization, which brings with it the potential for the application of advanced communication and infrastructure, diminishes the rationale for regional self-reliance. (2004).  Indeed, such self-reliance hinders inter-provincial cooperation, particularly inter-provincial trade.  Local administrative bodies and physical infrastructure built to protect local interests pose difficulties for road transportation, private and commercial trucking, Furthermore, regional or local governments may not operate in concert with central-government mandates or laws. Local governments can pass rules and regulations at any time without notice. This situation creates a confusing and costly business environment for companies trying to operate on a national level. Today in China, regional fragmentation of the supply chain due to local protectionism decreases efficiency and increases costs resulting in fewer choices or higher prices for consumers. Wal-Mart does not require local suppliers that sell products exclusively to local stores to use its distribution center, but encourages suppliers that sell nationwide to use the distribution center because it is more efficient for a supplier to deliver to one location than to all the Wal-Mart stores across the country. (2004). The Labor Contract Law, scheduled for enactment by the end of 2006, contains much that would affect the operations of multinationals concern over the draft legislation is high given a variety of its provisions. For example, under a recent draft, if an employee was hired under a thirty-six month contract and terminated for cause after six months, the firm would still need to compensate him for another thirty months of pay. There acknowledges China’s need and desire to target unethical employers, for which provisions such as these may be targeted, but the impact of these and other equally onerous provisions on responsible FIEs serve to undermine the attractiveness of China’s labor market, one of the key factors that make China such an enticing place to do business. (2004).         The ACFTU has always asked Wal-Mart to permit the formation of unions in its China stores. As an alternative to Wal-Mart’s traditional policy of intense resistance to unions, the ACFTU has repeatedly stated its goal of creating a harmonious, win-win labor relationship at Wal-Mart that will both promote the development of the enterprise and defend the rights and interests of Wal-Mart workers. There involves doing the hard work necessary to obtain a breakthrough. (2006) Local trade union officials assembled at areas near the Wal-Mart stores in order to carry out an education campaign. When staff got off work, organizers provided them with union literature to read and mobilized them to join the union. They also pledged to provide powerful protection to those who joined the union at Wal-Mart. Such procedures yielded tangible results. The staff began to know the trade union, which strengthened their consciousness and their will to unite, and also reduced their fear of retaliation. (2006)   Moreover, it is an important achievement for the ACFTU to have set up trade unions at a foreign-funded enterprise. Over the past two decades, China’s policy of reform and opening up to the outside world, to speed up industrialization and urbanization, has fueled a boom in both the private and foreign-funded economy. Meanwhile the ranks of workers, mainly migrant workers and workers in non-public-funded enterprises and unregulated sectors, have kept on growing. (2006) Therefore, it has become more and more urgent for the ACFTU to set up grassroots unions and organize these workers. To meet the challenge, the ACFTU has greatly expanded its grassroots organizing efforts, with special emphasis on migrant workers and workers in unregulated sectors like the private and foreign-funded enterprises within the fact that these workers are always on the move and geographically dispersed, trade unions at all levels have made a series of innovations in their organizing methods, exploring ways to organize workers wherever they might be working, whether in an office, at a construction site, in the community or hiring site, in a bid to recruit the vast majority of them into trade unions on a regional or industrial basis. (2006)   The success in organizing Wal-Mart is a reflection of the new focus of the ACFTU aimed at safeguarding labor rights. Trade unions are the product of social-economic contradictions, chiefly of contradictions in labor relations. In the tide of globalization and market-oriented reform, trade unions in China have seen drastic and profound changes in economic and labor relations, along with a serious encroachment on workers’ rights and interests. This has added to pressure on trade unions to provide workers with better protections. In 1994, the ACFTU advanced the idea of giving further prominence to the safeguarding function of trade unions. (2006) The achievement at Wal-Mart is also due to the superior position enjoyed by Chinese trade unions. Since conditions for the labor movement vary country by country, trade unions in various parts of the world have developed their own characteristic features. In China, the working class is the leading class of the state. The Communist Party of China (CPC) is the party of the working class; and under the leadership of the CPC, trade unions are the voluntary mass organizations of the working class, serving as the bridge by which the CPC keeps in contact with the masses of workers. (2006) Thus, the ACFTU is an important pillar of state power as the representative and defender of workers’ interests. The ACFTU is established as a unified national organization under the provisions of Chinese law. The CPC and the government have always attached importance to trade union work and given full support to trade unions in carrying out their work independently and creatively in accordance with the Trade Union Law and the Constitution of the Chinese Trade Unions. Wal-Mart stores in China have continued in stable operation since the trade unions were formed. (2006)         Finally, the Wal-Mart union drive was a crucial part of an attempt by the Chinese unions to transform their mode of action. The determining factors in the birth of the Wal-Mart union were the employees’ aspirations and the necessity for legal compliance on the part of Wal-Mart. The guidance and assistance provided by the ACFTU leadership helped foster a positive outcome. Before the formation of the union, many Wal-Mart employees contacted the ACFTU and local trade unions for instructions and help in setting up grassroots trade unions.  (2006) The success of the Wal-Mart organizing experience is very important to consider in terms of the fundamental change that has occurred in the approach of the ACFTU. This is quite different from the previous method of asking management for permission. It not only will influence other foreign and private investors to allow unions to be established, but it also gives trade unionists a new way to organize workers in the circumstances of a market economy by focusing their efforts on advancing, educating and reinforcing the aspirations of employees and actively mobilizing them to join the union. (2006)   Credit:ivythesis.typepad.com

What challenges of China Wal-Mart will face after its first union formed in July 2006, and what challenge will China Wal-Mart will face if the proposed Labor Contract Law finally be enforced in 2007

The challenges of China Wal-Mart will face after its first union formed in July 2006 There are certain challenges that China Wal-Mart w...