Nutshell: Employment Law

Nutshell: Employment Law

By Louise Floyd


$37.00 RRP

Date: 15/10/2010

Code: 9780455228129

Thomson Reuters, AUSTRALIA


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The essence of the law…

Lawbook Co. Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law.

Written in clear, straight-forward language, the authors explain the principles, and highlight key cases and legislative provisions for each subject.

Editorial Reviews

From: (2011) 31 Qld Lawyer 43
Reviewed by: Rhian Ward Minter Ellison Lawyers

Employment law in Australia is undoubtedly a progressive area of law, with this year alone seeing the largest sexual harassment claim in Australian history1 and the High Court overturning 27 years of jurisprudence regarding an employer’s duty to ensure safety.2 All this adds fuel to the fire in an oft misunderstood area of law.

In view of this, Employment Law is a timely publication. This pint-sized book provides a broad brush overview of the Australian labour law employment system. Particular emphasis is placed on
understanding the Fair Work Act 2009 (Cth). It covers an array of topics including: the National
Employment Standards (NES) and awards, termination of employment, trade unions, superannuation
and occupational health and safety.

Chapter 1 skilfully deals with two key questions that are pervasive in the employment law
· Why does labour law change so much?
· How do I work out my terms and conditions of employment?
In answering the first of these two questions, Floyd canvasses the theories of labour law and their
application to the Australian legal system. The second question posed is one which is particularly
relevant to practitioners who are frequently broached about this topic. As Floyd acknowledges, the
answer to this question can be complex as it is influenced by contract law, enterprise bargaining
workplace policy and the legislative maze.

Chapter 2 provides a useful guide to determining whether a person is an employee or an
independent contractor. The chapter gives an overview of the seminal cases which assist in
determining the characterisation of a worker. This demarcation is pivotal as it influences the law which
applies to the working relationship.

Chapter 3 deals with duties implied by the common law into the employment relationship such as
the duty of employees to obey reasonable demands and the duty of good faith. It also touches on
restraint of trade, an area which frequently comes under the microscope in practice as a result of an increasingly transient workforce.

Chapter 4 goes on to discuss the minimum conditions of employment and enterprise bargaining.
In particular, it deconstructs the NES, which are the cornerstone of employee working conditions.
Importantly, Floyd cautions readers that the relevant legislative provisions will only be in their first
year of operation at the time the book is released, and recommends that readers refer to the Australian Government website for cases illustrating the application of the legislation. The basic functions of the governing bodies that administer the Fair Work Act 2009 (Cth) are discussed at the end of the chapter.

The commentary in Ch 5 draws on the important distinction between unfair and unlawful dismissal. It also touches on the issue of redundancy.

Chapter 6 dissects some of the main areas of trade union law and is in part based on one of
Floyd’s own journal articles discussing good faith bargaining, union right of entry and the legal notion
of responsible unionism. Useful references are made to relevant case law and legislative provisions in
an attempt to shed some light on this area of regulation.

The book wraps up with a discussion of Australian Constitutional issues and allied areas of the law (such as discrimination in the workplace and superannuation). Interestingly, there is a segment devoted to university employment law. Legal issues in the tertiary sector have recently come to the
fore, particularly in the areas of intellectual property and alternative dispute resolution. In this segment, the book focuses on recent cases which highlight the extent to which an employer can claim intellectual property in its employee’s inventions, as well as cases which demonstrate the capacity for university disputes to escalate.

While one may argue that the book would benefit from summaries at the beginning of each
chapter, the book does not purport to be an all-encompassing guide. The book provides a snapshot of
this area of the law, focussing on case law and legislation in an attempt to provide an understanding of policy. The book makes it clear that it is not a discourse on politics. For those interested in gaining a greater understanding, cross references to further material, including journal articles, are provided

The book is written by an author who is widely published in the area and who has commanded notable positions in both legal practice and academia.

It conceptualises complex aspects of the law in plain language and is a useful quick reference tool for practitioners and students alike.

1. See Fraser-Kirk v David Jones Ltd [2010] FCA 1060 (29 September 2010).
2. Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v Work Cover Authority of New South Wales (Inspector Childs) [2010] HCA 1.

Table of Contents

Chapter 1 The Basic Questions
Chapter 2 Employee or Independent Contractor?
Chapter 3 Common Law Issues
Chapter 4 National Employment Standards, Modern Awards and Enterprise Bargains
Chapter 5 Termination of Employment
Chapter 6 Trade Union Law
Chapter 7 Constitutional Issues
Chapter 8 Allied Areas of the Law

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