The Harvester Case and the Minimum Wage

In relation to modern awards and the current minimum wage, Australian labour law has not changed that much since Justice Higgins determined in the Sunshine Harvester decision that an unskilled worker deserved a living wage of 42 shillings per week. Do you agree or disagree with this statement? Why or why not?

Need to response based on this post:

“In relation to modern awards and the current minimum wage, Australian Labour Law has evolved and changed since the 1907 Harvester decision.

In response to the Harvester Case, Justice Higgins calculated what he considered a ‘fair and reasonable’ wage. However, the determination of this wage was based on a man supporting his wife and three children. The wage was to allow for a life of ‘simple comfort’ (Hamilton 2014; Fair Work Australia & Hamilton 2011). Higgins made allowance for skilled employees with additional ‘margins’ being paid, as seen in modern awards today (Hamilton 2014). The Harvester Case established three minimum wages, an adult wage, apprenticeship rates and junior rates, similar to the variations seen today (Fair Work Australia & Hamilton 2011).

Since the Harvester Case, there has been other monumental cases that have evolved labour laws, political and societal changes that have seen progression in working conditions and standards for all Australian’s from then and present day. Examples include the Cattle Industry Case 1966, passing the decision of one award wage to be paid to all employees despite being Aboriginal; and the National Wage and Equal Pay Cases 1972 decision, both men and women to be paid the same award wage for equal value of work (Hamilton 2014). Further to this there has been a rich timeline throughout the decades with introduction and amendments to leave and other entitlements, including reduction in the standard working week, annual leave, sick leave, carers leave and parental leave within awards, further improving conditions of employment (Fair Work Australia & Hamilton 2011).

1991 saw the introduction of Enterprise Bargaining, and the shift in focus to the individual conditions of organisations (Fair Work Commission 2016). The Fair Work Act 2009 simplified and replaced State and Federal awards with 122 National Awards, introduced the minimum standards to be included within modern awards, as well as the National Employment Standards (Fair Work Commission 2016; RMIT n.d.). The minimum wage is the base rate that an employee can be paid and is determined annually by the Fair Work Commission (FWC), this is stipulated within awards or enterprise agreements. If an employee is not covered by these they will be paid the national minimum wage (RMIT n.d).

Awards and the minimum wage were adjusted then as they are today, with respect for the cost of living, but also with consideration for economic trend and ‘industry capacity to pay’, evidenced by the 1913 increase in wage in response to inflation; the Great Depression and 1931 decision to reduce the minimum wage; the Recession and 1982 wage pause; and the 1988 award system restructure (Hamilton 2014; Fair Work Australia & Hamilton 2011).

Overall, the Harvester Case ensured a standard of living for Australian’s, introducing a ‘living wage’. Today the minimum wage has evolved to that of a ‘safety net’ (Hamilton 2014; Fair Work Commission 2016). Whilst the role of the FWC is to maintain the ‘safety net’ and balance between economy and societal need (RMIT n.d.), the FWC conceded that their 2017 award increase would not bring all award reliant employees out of poverty (ACTU 2017). Australia’s current societal crisis is evidence that the Harvester Case‘living wage’ has eroded and Australia’s ‘safety net’ minimum wage now sees over three million Australian’s living in poverty (ACTU 2017).

Whilst it is agreed that the Harvester Case laid the foundation for Australia’s national minimum wage, modern awards and the current minimum wage for Australian workers have evolved significantly in the last century (Hamilton 2014). Word Count 581

Reference List:

ACTU 2017, ACTU calls for a Living Wage on 110th anniversary of the Harvester Decision, ASU National, viewed 18 May 2018 , <http://www.asu.asn.au/news/categories/minwage/171102-actu-living-wage-110-anniversary-harvester (Links to an external site.)>

Fair Work Australia & Hamilton R S 2011, Waltzing Matilda and The Sunshine Harvester Factory: The Early History of The Arbitration Court, The Australian Minimum Wage, Working Hours and Paid Leave, Fair Work Australia, Melbourne, viewed 16 May 2018, <https://www.fwc.gov.au/documents/documents/education/resources/waltzing_matilda.pdf (Links to an external site.)>

Fair Work Commission 2016, ‘The modern era: The development of a modern minimum wage’, Sir Richard Kirby Archives, viewed 16 May 2018, <https://www.fwc.gov.au/sir-richard-kirby-archives/exhibitions/history-min-wage/modern-era (Links to an external site.)>

Hamilton, R 2014, Methods of Wage Adjustment-The Australian Minimum Wage 1907-2011, Fair Work Commission, viewed 18 May 2018, <https://www.fwc.gov.au/documents/documents/education/resources/methods-wage-adjustment-1907.pdf (Links to an external site.)>

RMIT n.d., ‘Introduction to employment law and Australian labour laws’, Reading notes, Employment Law BUSM4591, RMIT University, Melbourne’

Below paragraph needs to be rewritten. We must say “Agree or Disagree with above article”

I agree with the above article. This is because Justice Higgins ruling in Sunshine Harvester decision informed the base standard for minimum wage for employees within Australia. The decision was primarily a common law pronouncement with no subsequent legislation to follow it up (Fair Work Commission, 2017). From 1907 when the Sunshine Harvester decision was made, not so much changed in Australian labour especially regarding minimum wage until 1969 and 1972 Equal Pay cases that advocated for breaking the disparity in payment of women and men (Waltzing Matilda, 2017). Prior to these cases, women were underpaid compared to men based on the ruling of the same Sunshine Harvester decision which only considered men in the reasonable and fair pay structure.

I also agree with the above article because the Workplace Protection Act Amendment of 2005 which established the Australian Fair Pay Commission equally shifted the labour laws relating to minimum wage and modern awards. Such is predicated commission’s mandate of setting minimum rates of pay for workers. The change in the structure of employment relations between employers and employees has also changed over the period since Sunshine Harvester decision. Between 1907 and 1996, the labour relations between employers and employees were dictated by unions (Carus, 2017). The employment contracts were bargained by unions on behalf of the employees and thus individual contracts between employers and employees were not available. However, the same changed between 1996 and 2009 following the change in labour law.

Currently, the Fair Work Commission sets the basic minimum wage and replaced the Fair Pay Commission. Both modern awards and minimum wage have experienced numerous changes since Justice Higgins decision in 1907. The labour law although initially not undergoing much change, experienced adjustment in the later part of the 20th century, between 1996 until now, the change in labour laws have been tremendous and such changes continue to be experienced. Hence, I disagree with the statement that the Australian labour law has not changed much since Justice Higgins decision.

Question 2:

Discuss a case which has been reported in the media which relates to termination, redundancy or unfair dismissal. What were the facts of the case and what was the outcome? In your discussion, attempt to apply the applicable law which applies.

1st Post from myself.

One of the recent cases of unfair dismissal is that of West v Holcim (Australia) Pty Ltd [2017] FWC 2346. The facts of the case entailed that Mr West, an employee of the defendant company was unfairly dismissed on the basis that he had permitted a casual labourer under his supervision to operate a crane without his direction or supervision (Dawson 2017). The casual labourer in question had no prior training in handling or operating a crane. In such operation of the crane, a near accident almost occurred when the steel carried by the crane almost hit another employee of the company. Neither Mr West nor the casual labourer reported the incidence according to standard practice and therefore the company applied this provision as the formal basis for his dismissal.

According to the Fair Work Act and Industrial Relations Act, an employee who has been unfairly dismissed has the right to recourse. Section 184 (1) of the Industrial Relations Act notes that unfair, unjust and unreasonable inform the standard base of defining unfair dismissal (FindLaw Australia 2018). According to the case of Mr West, the commission applied the principle that prior conduct that was not punished cannot be used to justify subsequent dismissal. In the case, it was noted that the West had at one time allowed a casual labourer to operate the same crane without supervision or authority from any manager from the company. During that earlier incident, the employer neither reprimanded Mr West nor invoked any form of punishment. The commission in delivering its verdict pointed out that where an employee had undertaken an action or acted in a manner that contravenes the set standards or procedures and the employer took no disciplinary action, then subsequent conduct without warning cannot be the basis for dismissing the same employee.

Therefore according to the commission, it was unfair for the defendant company to dismiss Mr West when it had earlier tolerated such conducts. As such Mr West was reinstated to his initial position at the company (Dawson 2017). From the case, it is clear that the importance of warnings and punishment of misconduct cannot be underestimated. It is imperative to provide a clear disciplinary measure for different misconduct and ensure that they are implemented and follow up is undertaken. Additionally, according to Fair Work Act, it is not prudent to dismiss an employee without giving a proper warning for misconducts. Dismissal without warning is not only unjust but also unfair. Hence, without warning, it is presumed that such conduct is acceptable to the management and employees are at will to repeat them. In conclusion, it is prudent to understand the scope of unfair dismissal for both employees and employers to ensure that they understand their duties and obligations under the law. As such, they would be able to avoid unnecessary and costly claims.

References

Dawson, M. (2017). Australia: Recent unfair dismissal cases: lesson and reminders. Mondaq (Connecting Knowledge and People)

FindLaw Australia (2018). Unfair Dismissal Laws in Australia. [Online] (Updated 2018) Available at: http://www.findlaw.com.au/articles/4249/unfairly-dismissed-from-work-what-you-should-know.aspx (Links to an external site.)

Argument from other student: Mezino was employed with Sydney restaurant Baia The Italian from November 2015 to April 2017. During his time of employment, Mezino was happy to work for more than 50 hours a week to prove his dedication to the restaurant as he was told by them that they were willing to offer visa sponsorship to dedicated employees. If his performance met the standards of restaurant management then he would be offered a management role along with sponsorship. From January 2016, he was put in charge of recruitment and by the end of April 2016, he was working in the restaurant as a manager. Mezino felt he was being underpaid in his management role as he did not receive a pay rise and was still being paid $20 an hour without overtime and penalty rates. In November he signed an offer letter for visa sponsorship but was told he would not receive a pay rise until the sponsorship was approved. It was only in March 2017 that Mezino checked the industry award and learnt that he was being underpaid. He reported this to management and was told that if he took this further he would be fired and his sponsorship would be revoked. Mezino took this matter to the Fair Work Ombudsman and they found that his “dismissal was harsh, and unjust, and unreasonable”, sincerely because he was exercising his right to entitlement of proper pay according to the industry award. The Ombudsman ordered the restaurant to pay Mezino $15,000 in compensation.

Mezino was unfairly dismissed in his employment according to s385 of the Fair Work Act - he was dismissed, the dismissal did not comply with the Small Business Fair Dismissal Code, the dismissal was not a genuine case of redundancy and as the Fair Work Commission held, his dismissal was harsh, unjust and unreasonable (Patty 2017). In s387 of the Fair Work Act, the factors that determine the harshness of a dismissal are set out and the factors that are relevant to this particular case are that of the circumstances that led to the dismissal and the effect of the dismissal on the employee. The circumstances in this case was that Mezino discovered that he was being underpaid according to the relevant award and he was not being paid accordingly to his job position. Management were unhappy that he had brought up this issue of underpayment and was taken off the roster thereafter, hence Mezino was dismissed. The effect of the dismissal on Mezino was that his visa sponsorship was revoked, with his opportunity to further work and stay in Australia put in jeopardy. The Fair Work Commission found that the restaurant grossly misused the visa sponsorship to their advantage and used it as an excuse to underpay Mezino (Patty 2017).

Fair Work Act 2009 (Cth)

Patty, A 2017, ‘Darling Harbour restaurant ordered to pay $15,000 for unfair dismissal’, The Sydney Morning Herald, 18 July 2017, viewed 10 June 2018, <https://www.smh.com.au/business/workplace/darling-harbour-restaurant-ordered-to-pay-15000-for-unfair-dismissal-20170718-gxdqab.html (Links to an external site.)>

Response

I agree with this article because Australia has long had a history of protecting employees in regard to dismissal. However, the protection was mainly confined in either of these two ways; an employee could not be dismissed for an otherwise prohibited reason such as membership of a particular union. However, an employee who has been dismissed could not challenge the dismissal (FindLaw Australia 2018). Rather, they had to rely on their union to challenge the fairness of the dismissal. This remedy was exclusive to state tribunals. Second, this definition was available at the Commonwealth level. However, it was limited by the fact that the Constitution required an inter-state dispute to be established. The capability of an individual to seek assistance and relied from a case of unfair work dismissal was first established during a statutory scheme held in South Australia in Victoria and Wales during the early 1990s.

Protection of employees from unfair work dismissal at the Commonwealth level was developed and enhanced in 1984, an initiative that was implemented by the Commonwealth Conciliation and Arbitration Commission during the ruling that it delivered for the Termination, Change, and Redundancy Case (Dawson 2017). The ruling delivered implied that awards should include a provision that employee dismissals should not be unjust, harsh, and unreasonable. The subsequent awards that followed this ruling were upheld by the High Court of Australia. Later, the Parliament of Australia later extended the reach of protection after the Industrial Relations Reform Act 1993 was passed. The Reform Act was ideally based on the external affairs power as well as the ILO Termination of Employment Convention that was passed in 1982. This shows the effort of the Australian government to protect employees from unfair workplace dismissal.

Currently, the Australian law considers unfair dismissal to have taken place when the Fair Work Commission, acting on the powers confined to it under Section 385 of the Fair Work Act 2009, determines that an employee has been dismissed, the dismissal was done in an unjust, unreasonable, or harsh manner, the dismissal was contrary to the Small Business Fair Dismissal Code, and the dismissal did not result from a genuine case of redundancy (Patty 2017). Therefore, I agree with this article that employees are still protected by the law in Australia. However, the circumstances and reasons for dismissal should be evaluated to determine whether or not it is due to a genuine case of redundancy.

Question 3:

Elizabeth Broderick, the current Sex Discrimination Commissioner with the Australian Human Rights Commission, has stated that “Domestic and family violence is a workplace issue. Having domestic/family violence as a new protected attribute in anti-discrimination legislation can provide another avenue of protection for victims and survivors who experience discrimination, as well as lead to improved measures for addressing domestic/family violence.” Do you agree that ‘domestic/family violence’ should be a new ‘protected attribute’ in anti-discrimination legislation? Why or why not?

1st post

Discrimination not only creates class and resentment, it affects its victims both physically and mentally. Such effects are usually predicated on the health of the person. Domestic violence is a form of abuse within the family setting that leaves its victim with both physical and psychological consequences (Australian Human Rights Commission 2012). At the workplace, an employee who has undergone domestic abuse harbours such visible evidence and in most instances becomes the centre stage of ridicule. That is a huge problem for such people due to the notion that they are belittled based on their weakness to withstand violent treatment within the family.

When an employee reports working bearing evidence of physical abuse or even constrained by emotional turmoil and psychological instability, it affects their productivity. Further, it exposes them to additional trauma as they are affected by what fellow employees perceive of their character and personality (Australian Human Rights Commission 2014). Additionally, victims of domestic violence are often isolated by fellow workers who view them as weak and undeserving of their company. As such, this is indirect discrimination although it might be undertaken unconsciously. Nevertheless, victims of domestic abuse also experience discomfort within their workstations not because of fear of discrimination but based on the misconceptions and stereotyping of domestic violence by the society. Thus, they tend to exclude themselves from a certain conversation within the work environment due to fear of being discriminated. Such actions not only affect their social ability but also cripples engagement in helpful discourse that can channel their careers forward.

As such, I believe it is only prudent to include domestic violence in the list of protected attributes. Such a move would enable victims to be part of the work environment without fear of being discriminated against in one form or another. Domestic violence is not a gender issue but a general problem that affects both men and women (Australian Human Rights Commission 2014). The move by the Australian Service Union to negotiate domestic violence leave is a clear indication that domestic violence must be protected by anti-discrimination laws. If domestic violence informs part of the protected attributes, employers will be forced to take policy and regulatory measures to ensure that employees are not discriminated against based on domestic abuse.

Employers will be able to grant employees shifts that cater to their conditions and situation. Such actions would comprise enhancing their working hours and grant of leave based on domestic violence that affects the physical or mental capacity of the employee (Australian Human Rights Commission 2012). With the protection of the law, victims of domestic violence will be offered relief from further discrimination. Conclusively, such a move would help in drastic reduction of domestic violence cases and improve the productivity of the employees undergoing physical abuse. Additionally, the work environment would in essence act as a home for these employees. Therefore, I agree with Elizabeth Broderick that domestic violence should be a new protected attribute in anti-discrimination law.

Australian Human Rights Commission (2012). Consolidation of Commonwealth Discrimination law - domestic and family violence. [Online] (Updated 2012) Available at: https://www.humanrights.gov.au/consolidation-commonwealth-discrimination-law-domestic-and-family-violence (Links to an external site.)

Australian Human Rights Commission (2014). Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue. [Online] (Updated 2014) Available at: https://www.humanrights.gov.au/our-work/family-and-domestic-violence/publications/fact-sheet-domestic-and-family-violence-workplace