I. Introduction
The relationship of the employer and the employee has been considerably addressed in the past and existing literature. However, there is constantly a recurrent representation of inequity in such areas. To this extent, this paper intends to discuss the importance of employment in society thought the discussion of the economic theories of employment as presented by early thinkers. Moreover, the existing relationship between employers and employees reveals a fiduciary duty on the former. Thus, role of employers will also be given to this end. In addition, the case of Australia presents the addition of a piece of legislation that provides a boost in the said imbalance of power in the said relationship. To this purpose, the study will also take into account the possible implications of the Workplace Relations Amendment (Work Choices Act) 2005 in the relationship of employees and employers in the Australian setting.
II. Employment Theories
In order to establish the condition of the duties of the employer and the basic elements of employee welfare, it is important to take into account the existing theories on employment in society. The following discussions will present the significance and effect of employment in a state particularly in the economic and social context. To this end, the discussion of such theories and models established in the past will provide an idea on the importance of creating a strong connection and relationship within the working environment of a state. This will consequently help in supporting the arguments that will be indicated in the later part of the paper with regards to the legislations created with reference to employer duties and employee welfare.
Furthermore, the discussions in this section of the study will serve as an introductory portion of the paper, presenting the basic premises held in earlier and the much recent parts of history, regarding their views on employment and its implications to society. To a certain extent, these discussions will eventually explain several aspects of social phenomenon such as unemployment and explain the emergence of employment in the context of savings, investments, and policy.
A. Saving-Investment Theory
This type of employment theory is anchored on the principle that the level of “employment is controlled by the level of income and production.” (Lee, Means, and Samuels, 1994) This assumption rests on several underlying principles as stated by the work of Lee et al. (1994). One assumption is that saving and investment are supposed to be equal in every real situation. This assumption is a major prerequisite for this theory. Another assumption that the theory presents is that the amount of real income of a community is directly related the amount to which that community would be able to save. According to the work of Lee et al (1994), a good representation of such assumption would be that of a schedule. In this plane, the quantity that the community has saved would reveal every practicable level of income that it has acquired. In addition, another assumption that this theory presents is that the aspiration to “invest in goods” would constantly be less that the savings. In this context, the said assumptions show that the real propensity to save will persistently be at steeper rise than that of the level of real income acquired by the community.
Modern literature and academics have created variants of such theory. The most notable variants of this theory are that of Keynes and Hansen. These academics have presented their views on the existence of “chronic unemployment” and how economic concepts like price sensitivity, wage rates and monetary policy contribute to this phenomenon. Although there is a common denominator in such themes seeking to deal with the reduction of unemployment or even the pursuit of full employment, a more definitive claim of these thinkers is based on the use of monetary expansion on the elimination of unemployment. (Lee et al, 1994) To some degree, monetary expansion as it appears on the discussions of these academics presents a very inadequate tool to address the issue of expanding employment in society.
B. Classical Theory
Similarly, the works of Lee et al (1994) revealed that the classical theory of employment is based on a couple of assumptions. One assumption is that the marginal product of labour is constantly directly related to the wage of the workforce. To this extent, this assumption presents a particular focus on the effect of a loss, even as slight as one unit, on the wage of an employee. This means that the wage of the said component of the workforce constantly, is equal to the amount on which could be lost if the level of employment in a certain community would decrease by a single unit. However, the effects of this assumption may similarly not work if the competition in the market is characterized as imperfect.
Another assumption of the said theory states that the marginal disutility of a certain amount of unemployment is directly related to the utility of wage the moment a specific quantity of labour is employed. (Lee et al., 1994) The term disutility in this context denotes every type of cause which may well trigger a person or a group of persons to refuse to give their labour that to receive wage. The said assumption provides that the real wage the individual who was employed is merely sufficient to acquire the amount of labour which is actually required.
C. Marxian Theory
The Marxian theory of employment provides that unemployment points out to the build up of capital and control of the private sector as compared to the tools of production and the blatant refusal of the laissez-faire system. The said theory claims that unemployment in a certain community is brought about and triggered specifically by the presence of capitalism. (Lee et al, 1994)
III. Common law Duties of the Employer
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. 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 (Wilsons & Clyde Coal v English [1937] 3 All ER 628).
A. 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 is revealed at Smith v Crossley Bros (1951) 95 SJ 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. An illustration of this case is presented in Waters v MPC (2000) 27 July.
Moreover, the applicant might be subject to harassment by the other employees. This is also revealed in Veness v Dyson Bell (1965) Times LR, 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.
B. 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 Davidson v Handley [1945] 1 All ER 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.
C. 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 (Smith v Baker [1891] AC 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 (Toronto Power Co v Paskwan [1915] AC 734). The company is legally responsible to provide the employee with the equipment they needed in order not to trigger any other forms that could aggravate their 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 (McWilliams v Sir William Arrol & Co [1962] 1 All ER 623). 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.
D. 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. (Speed v Thomas Swift & Co [1943] 1 All ER 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 is shown in Walker v Northumberland County Council [1995] 1 All ER 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.
IV. Notable Contents of the Work Choices Act of 2005
This part of the paper is going to present the more outstanding contents of the said legislation. The said parts of the legislation that will be discussed below are among the areas deemed by the writer that would have considerable implications on the relationship involving the employer and employee.
A. Fair Pay and Condition Prerequisite
According to the stipulations of the said legislation, the minimum wages and conditions of employment are applicable to employees that are under the Work Choices Act. Among the minimum condition presented in this category includes basic rates pay and casual loadings. The application of such rules is presented under the Australian Pay and Classification Scales. Another condition entails employees to exercise a maximum number of working hours amounting to thirty eight for every workweek. Annual leaves are also in order profiling four weeks for the employees including the additional leaves accessible to those who work in shifting schedules. Sick leave and carer’s leave are similarly indicated in this category.
Moreover, this section has similarly indicated award provision is also permitted by the said legislation. Such provisions include parental leave, long service leave, notice of termination, jury service, and superannuation. The nature of such provisions are, according to the said Act, could not be adjusted. Though the said awards are not allowed anymore by the said provision, they are still permitted to be given to employees if the employers seem to be keen on giving more to their workforce.
B. Award Standards
The awards bestowed on the employees in Australia as provided by the Workplace Relations Amendment (Work Choices Act) 2005 covers fourteen areas. However, the said Act have also prohibited several other awards such as the change of the type of employment of employees. Specifically, the change from casual to another kind of employment is no longer permitted. Another is the employment of contractors or labour hire workers. This means the employment on companies should be directly hired and not from any employment agency whatsoever. Other minor changes and prohibitions include the enterprise flexibility provisions and trade union training leave.
Additional stipulations indicate that notional agreements be operational up to a period of three years as indicated in the Act. Their implementability could only cease when a new federal workplace agreement is made or a new federal award that directly affects the employer is created. When the provided three years are over, the company will implement the fitting federal industry awards. On the case of unincorporated businesses, their awards are to be labelled as transitional awards.
C. Role of the Australian Industrial Relations Commission
The Australian Industrial Relations Commission (AIRC) is the primary organization that works as a third party for employees and employers who are in dispute. The Workplace Relations Amendment (Work Choices Act) 2005 has reduced their powers immensely. Their compulsory powers of implementing alternative dispute resolution are removed. They could only enforce this in specific cases. These cases include the simplification and rationalization of awards and unfair dismissals to name a few.
V. Conclusion
The paper has presented the importance and the actual existence of duties that the employer has in the context of the employer-employee relationship. It is not only the employee that si required to how good faith, loyalty, and hard work in the said relationship. In the case of the implementation of the Workplace Relations Amendment (Work Choices Act) 2005, some conditions may well be compromised to a certain extent.
In such a scenario, the said legislation may have installed an apparent unequal bargaining power between the employer and employee. The imposition of the said act has compromised the flexibility of such occasions that have brought about bullying from the part of the employer, though it has been inexistence even before the act. Harassment and discrimination has similarly been a result of this absence of equal footing in this relationship.
The piece of legislation allows the development of agreements among the employers and employees. This permits the employers the leeway to remove certain conditions like holidays and other perks on the part of the employee. This provision of more authority on the employer may subject the employee to acquire the minimum possible conditions that an employer could provide, as opposed to providing what is fair and just for the employee.
On the other hand, the dispute resolution in this context is also given by the legislation an option of being a last resort when it arises. The problem in this scenario is that not all employees are able to defend themselves from the manipulative nature, and the presence of unequal power to boot, of the employers. In some instances, the intercession of a third party would be able to protect the rights of the workers.
Another issue on this aspect is that the termination process has been similarly altered by the said legislation. To this extent, unfair dismissal principles are compromised. This furthers the exiting inequity present in the system. Not only does the employers given specific rights to terminate employees for conditions such as having a particular number of staff or on account of operational concerns undermines the doctrines of due process in the employment sector. This leaves the employees constantly exposed to the possibility of abuse, and persistently at the losing end of the bargain.
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