Employment and Industrial Law 79034 Spring 2020
Weighting: 20%
Due: 11.45pm 8 October 2020
Word Length: 1,000 words (10% leeway). Students should aim to produce an answer of the recommended length and may be penalised for answers which exceed the word limit by 10% of the recommended length.
Task:
The client legal advice will require students to provide a written advice to a hypothetical client in relation to a specific factual scenario (or scenarios) that draw on common issues that arise in practice. Students will apply their knowledge of employment and industrial law in order to provide this advice and to answer the specific questions about that factual scenario.
QUESTION
Answer BOTH (a) and (b) of the Question.
(Hypothetical Factual Scenario)
You are a lawyer advising Concrete Employer Pty Ltd (“Concrete Employer”) which is an Australian company that produces and transports concrete. Concrete Employer employs 10 management and administrative employees. Concrete Employer employs 80 transport and production employees at Concrete Employer’s production site in Sydney. In addition, there are 2 employees engaged by Concrete Employer at the production site to maintain mechanical equipment. The employment of all of the transport, production and maintenance employees is subject to an enterprise agreement between Concrete Employer and the Concrete Workers’ Union (“CWU”). This agreement passes its nominal expiry date on 1 June 2020. Since then, the CWU has been attempting to negotiate a new federal, single enterprise agreement with Concrete Employer.
You have been asked to advise Huong, the Chief Executive of Concrete Employer, on two employment and industrial law matters.¬¬¬¬¬¬¬
Firstly, you are asked to provide advice regarding industrial action by Concrete employer’s workers. The Fair Work Commission (“FWC”) granted an application for a secret ballot order and, in the subsequent secret ballot, an absolute majority of employees eligible to vote approved the proposed action. The action approved by the successful ballot is that Concrete Employer employees will be unavailable for work on urgent orders for concrete outside of normal hours (even though Concrete Employer requires them to be available for such work). Employees at Concrete Employer immediately commence this work ban on 1 August 2020.
Prior to this work ban, Huong informs you that the CWU commenced concurrent negotiations for a new enterprise agreement with one of Concrete Employer’s competitors. The CWU has put to Concrete Employer a draft agreement and put a draft agreement to Concrete Employer’s competitor. Both of these agreements provide that employees are to receive a wage rise of 15% over 3 years and provide for similar or the same conditions regarding ordinary hours of work, penalty rates and redundancy pay. However, the two agreements have a different nominal expiry date. Huong refuses to meet the union’s demands.
Stella, one of Concrete Employer’s two maintenance employees, is a member of the CWU. (There is also another maintenance employee, Henry.) Stella is frustrated that union demands are not being met. On 10 August 2020 she persuades most of Concrete Employer’s employees to commence a strike. Stella also contacts her friend Jason to get his support for the strike. Jason is an official at the Raw Materials Union (“RMU”). 75% of employees at Concrete Supplies Pty Ltd (“CS Co.”), the main supplier to Concrete Employer, are members of the RMU. The RMU successfully persuades it members at CS Co. to not make deliveries of raw materials to Concrete Employer during the strike by the CWU. Also, Stella and some other CWU members, set up a picket line outside Concrete Employer’s production site. Although the picket starts off as peaceful, the picketers successfully prevent Concrete Employer’s employees and drivers delivering concrete from crossing the picket line by parking trucks in front of the entrances to the site. Production at Concrete Employer ceases.
(a) Advise Huong about all of the facts that might be relevant to any common law and/or statutory action which can be taken for loss of production during the industrial action, to get workers to return to work and to resume normal production.[14 marks]
Secondly, you are asked to provide advice regarding the dismissal of Stella, one of Concrete Employer’s maintenance employees.
Assume now that the strike and picket has ended. All of Concrete Employer’s employees return to work. However, a new enterprise agreement is not finalised yet. Stella continues to be an active union member, undertaking daily activities to recruit new union members at Concrete Employer and continuing the campaign for better pay and conditions. After the strike, Huong does not want a union presence at Concrete Employer. On a few occasions Stella has been meeting with union members instead of carrying out urgent maintenance work on equipment at the site. Following these incidents, Huong tells Stella that not immediately carrying out this urgent work is unsatisfactory. When Stella asks if she can meet with Huong to explain her reasons for these incidents, Huong refuses to meet and says to her “I don’t have time for this”. However, Stella has found she is also spending work time sending emails and discussing in person the enterprise agreement with individual members. In late August 2020 on at least two occasions Henry has to step in and undertake work that is usually Stella’s responsibility because Stella is late back from a union meeting. On 1 September 2020, Huong informs Stella she is dismissed from her employment at Concrete Employer. Huong provides Stella with notice. Stella says to Huong ‘you are dismissing me because I am the union delegate’. Huong replies to Stella ‘no I am not dismissing you because you are the union delegate; I am dismissing you due to your poor performance’. However, across the Concrete Employer’s workforce, dismissal for poor performance at the initiative of the employer is very rare. Stella’s employment with concrete Employer ends on 30 September 2020. Henry, the other maintenance employee, who is not a union member, keeps his maintenance job at Concrete Employer and non-union maintenance contractors are to be called in to attend to urgent equipment repairs.
(b) Advise Huong whether or not Stella is entitled to a remedy for the dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) )(by applying any relevant Part 3-1 provisions and any relevant case law interpreting those provisions).[6 marks]
A bibliography is not required and there is no requirement to set out answers in a letter format. I need help writing my essay – research paper use appropriate legal referencing [but note that full citations are not necessary: you can use an abbreviated statute name eg FW Act, s311 (when referring to the sections of the Fair Work Act 2009 (Cth))].
Before commencing preparation for this task, it is strongly advisable for students to read the UTS Law Faculty’s Guide to Written Communication http://www.uts.edu.au/sites/default/files/law-form-guide-written-communication.pdf . This guide has a section on writing a legal problem question (which is the same as writing a legal advice).
Turnitin:
Essays must be submitted online through the turnitin application on UTSCanvas by the due
date. All essays will be subject to an originality check through turnitin and the results may be
used in the assessment of the essay. I need help writing my essay – research paper use the “UTS: Law Assignment Cover Sheet For Online Submission”
No extension after assessment handed back: I need help writing my essay – research paper note that extensions will only be granted on the basis of illness, misadventure or disability. Extensions will not be granted for a date after the assessment task is handed back to students.
Avoiding Academic Misconduct:
It is the responsibility of each student to not commit academic misconduct (including attempts by students to procure ghost written material, cheat, plagiarise or otherwise act dishonestly in undertaking an assessment task or assisting other students to do so) in the completion and submission of assessment assignments. Students must submit original work (student’s own work and not previously submitted for assessment) for each assessment task.
I need help writing my essay – research paper see the employment and industrial law 79034 subject outline for more information on academic misconduct by students.
Assessment grading criteria
• Correct identification of important legal issues.
• Correct application of relevant cases and statutory materials
• Succinctness, precision, clarity and persuasiveness of writing and arguments
• Correct advice on the appropriate action to take
