Deck 9: State Regulation: Eeo, Unfair Dismissal and Safety at Work

Question 1

One of the main criticisms of health and safety laws in Australia has been the lack of consistency. How has this question of consistency been addressed since 2004?

Answer 1

Johnstone (2008, p. 3) has argued that although the states and the Commonwealth broadly followed a Robens regulatory model, there were differences in statutory provisions between jurisdictions, which meant that employees were 'afforded different levels of legal protection' and employers with operations spanning more than one jurisdiction were faced with 'inconsistent standards and enforcement approaches'. The Productivity Commission's 2004 report, National workers' compensation and occupational health and safety frameworks, noted these jurisdictional differences and recommended that the states and the Commonwealth work towards developing a national occupational health and safety (OHS) regime. The Council of Australian Governments (COAG) accepted this recommendation and developed an intergovernmental agreement to develop a harmonised approach to WHS legislation within five years. The rationale for harmonised laws was to reduce the regulatory burden on business, create efficiencies for governments in regulating WHS, and achieve further and continual reductions in work-related injuries, death and disease. The COAG agreement established Safe Work Australia, an Australian Government statutory agency jointly funded by the Commonwealth and state and territory governments and charged with developing model OHS laws to be enacted by state and territory jurisdictions. Such an approach is necessary due to the lack of an appropriate constitutional head of power that would otherwise allow the Commonwealth to enact national laws with sufficient coverage.

Question 2

Why have remedies for 'unfair dismissal' been so contentious in Australia?

Answer 2

Because of the contrast in arguments from the left and right of politics. The right argues that such a remedy interferes with managerial prerogative to hire and fire at will, and the left argues that unfair dismissal remedies are necessary protection from arbitrary employer action.

Question 3

How has road transport been included in health and safety laws in Australia?

Answer 3

An important and novel development in safety has focused on the road transport industry. In 2008, the National Transport Commission found that commercial arrangements between contracting parties in the heavy vehicle industry (freight forwarders, receivers, consignors, owners and drivers) had a significant and sometimes adverse impact on safety. This is because drivers were incentivised for reducing travel time by speeding, reducing rest periods and contravening other fatigue management practices. To address the problematic relationship between payment and safety, the federal Labor government passed the Road Safety Remuneration Act 2012 (Cth) (the 'RSR Act'). The RSR Act established a separate tribunal known as the Road Safety Remuneration Tribunal, which is empowered to set minimum rates of pay for drivers, conciliating and arbitrating disputes (by consent), approving of collective bargaining agreements for independent contracts and carrying out research for remuneration-related matters affecting safety in the road transport industry. The orders of the tribunal are likely to have a far-reaching impact throughout supply chains that make use of the road transport sector and, it is hoped, have a positive impact in removing unsafe driving practices from the industry.

Question 4

The Robens model refers to:

A) health and safety laws based on state regulations.
B) health and safety laws based on 'self-regulation'.
C) no health and safety regulation.
D) None of the options given here is correct

Question 5

What are the general aims of anti-discrimination laws and how widely have such laws been adopted in Australia?

Question 6

List the levels and agencies involved in equal employment opportunity (EEO) action and give some examples of each.

Question 7

Which agencies are involved in EEO regulation?

A) The ILO, the state and management
B) Unions, employer associations and tribunals
C) Individuals, workgroups and managers
D) None of the options given here is correct

Question 8

In determining unfair dismissal, which forms of fairness would a commission or court apply? Discuss.

Question 9

How does the Robens model of workplace health and safety differ from the traditional model?

Question 10

List the early federal anti-discrimination legislation and discuss how this was expanded during the 1980s.

Question 11

While equal employment opportunity (EEO) is an important part of Australian anti-discrimination regulation, what other important model has also been used in this area? Discuss.

Question 12

At what levels does EEO regulatory action occur?

A) The work team, workplace and individual levels
B) The workplace, state and national levels
C) The international, national and organisational levels
D) None of the options given here is correct

Question 13

One of the key priorities of the 2009 Fair Work Act was to restore unfair dismissal rights. Identify and discuss what these restored rights were.

Question 14

What federal affirmative action legislation currently exists in Australia?

A) The Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth)
B) The Equal Employment Opportunity for Women in the Workplace Act 1999 (Cth)
C) The Workplace Gender Equality Act 2012 (Cth)
D) All of the options given here are correct

Question 15

How did the 1996 Workplace Relations Act change federal unfair dismissal provisions?

Question 16

How did the federal government address safety in the road transport industry?

A) Left it to the states, which make road traffic laws
B) Banned all heavy vehicles from the federal road network
C) Created the Road Safety Remuneration Act 2012 (Cth)
D) All of the options given here are correct

Question 17

Identify the first federal unfair dismissal law in Australia, discuss the model it was based on and explain how it differed from 'unlawful termination'.

Question 18

Briefly explain the Robens model of occupational health and safety (OHS) regulation.

Question 19

What is the most common model of regulating equal employment opportunity (EEO) in English-speaking countries?

Question 20

Which federal Act first introduced unfair dismissal laws into Australia?

A) The Fair Work Act 2009
B) The Industrial Relations Act 1988
C) The Workplace Relations Act 1996
D) The Industrial Relations Reform Act 1993

Question 21

Define Equal Employment Opportunity, ensuring you identify at least three important issues to be included.

Question 22

The affirmative action model imposes obligations on employers to positively discriminate in favour of some categories of employees who have historically suffered discrimination. Why is this positive discrimination considered to be 'special measures' rather than discrimination, and how are they important?