76015 Labour Law

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2024 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): 70211 Contracts AND 70311 Torts
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 76053 Workplace Relations Law AND 78246 Employment Law AND 79031 Employment and Industrial Law

Description

Labour law is an important component of the legal regulation of business. In this subject students examine the key aspects of Australian labour law currently pertaining to workplace rights, entitlements, liabilities and obligations of employers and workers pursuant to the legislation and case law regulating work, especially the law determining the pay and conditions of workers. Given the extensive coverage of Commonwealth workplace relations legislation, there is a focus on analysis of that Commonwealth legislation as amended.

Labour law is a rapidly changing field. There have been frequent system-wide changes to the legislative framework over the last few decades. In addition to considering current law, this subject considers the development of legislation and case law regulating work. Students examine the reasons for and against reforms to labour law, the position and influence of key stakeholders involved in law reform processes and changes that are likely to be made to labour law in the future and on what basis those changes are made.

In this subject students learn the skills of applying current labour law to provide advice in a form appropriate for a client. Students also undertake critical analysis and evaluation of debates within labour law which underlie legal reforms. Students are given the opportunity to develop analytical and evaluative skills by making oral and written submissions about proposals to reform labour law that mirror the work undertaken by professionals involved in making submissions to governmental inquiries. Given that most students go on to be involved in a paid work relationship regulated by the law studied in this subject, labour law forms an important part of the knowledge required for professional life.

Subject learning objectives (SLOs)

1.	Identify and explain the key legal principles and policies underpinning Australian labour law.
2.	Analyse and apply relevant legislation and case law in resolving legal problems involving the rights, entitlements, obligations and liabilities of workers and employers to provide effective legal advice to a client.
3.	Critically evaluate the adequacy of, and the scope for reform in, Australia’s current framework of labour law from the perspective of key stakeholders.
4.	Construct and effectively articulate critical, justifiable, persuasive and well-reasoned legal and scholarly arguments.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

• Legal Knowledge
  A coherent understanding of fundamental areas of legal knowledge including:
  a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
  b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
  c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
  d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1)
• Critical Analysis and Evaluation
  A capacity to think critically, strategically and creatively, including the ability to:
  a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
  b. Apply reasoning and research to generate appropriate responses;
  c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
  d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1)
• Communication
  Effective and appropriate communication skills including:
  a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
  b. An ability to communicate to inform, analyse, report and persuade;
  c. An ability to strategically select an appropriate medium and message;
  d. An ability to assess how messages are received and alter communication strategies accordingly; and
  e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)
• Collaboration
  Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
  a. An ability to give and receive feedback;
  b. Appropriate professional and interpersonal skills in working collaboratively;
  c. A capacity to develop strategies to successfully negotiate group challenges; and
  d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1)

Teaching and learning strategies

Strategy 1 (Preparation for seminar activity): Your learning will be most effective when you are actively engaged in the learning process. Therefore all students undertaking this subject are strongly encouraged to prepare before class and actively participate in classes. The value of interactive learning and teaching lies in its encouragement of higher order thinking skills such as critical analysis and evaluation. These are part of the subject objectives identified above. Each week there are materials such as cases, legislation, commentary and audio visual material that students need to study and reflect on before each seminar. The materials students need to study each week are listed in the seminar guide and are available in the subject documents on Canvas. Students should also prepare their responses to the seminar questions from the seminar guide available on Canvas prior to participating in the seminars. These preparation activities enable students to participate in the seminar activities detailed below.

NOTE: Classes including the Week 1 class, will be conducted on the assumption that students have studied and reflected upon the materials and attempted to answer the questions from the seminar guide.

Strategy 2 (Interactive seminars): Interactive seminars in this subject aim to enhance the ability of students to develop high order skills such as analysis, evaluation and the application of law to facts which are required to become an effective legal practitioner. Students will practise these skills through class discussion and collaborative activities which enable students to identify and explain the key principles of labour law, analyse how those principles operate, and apply the principles in resolving legal problems. Class activities are scaffolded throughout the semester to build up the persuasive oral and written skills needed for professional practice. This process begins with basic skills in oral and written advocacy. Students will learn how to construct arguments persuasively by critically analyzing primary and secondary material and applying that material to answer conceptual and policy-focused questions. These advocacy skills become more practice-oriented as the semester progresses. Students will apply these skills to resolve legal problems, provide advice and make oral submissions regarding law reform proposals from the perspective of key stakeholders.

Students will undertake a number of collaborative exercises in the seminars including:

• Undertaking and discussing writing tasks to improve students’ skills in written argumentation prior to undertaking any formal written assessment.
• Examining, discussing and debating pre-assigned policy-focused questions designed to allow students to critically evaluate the labour law framework and proposals to reform labour law.
• Providing and receiving feedback on another students’ written response to a policy-focused question in a low stakes peer feedback exercise in week 3. Students will be provided with a simplified version which is modelled on the grading criteria for the first written assessment to guide their feedback to their peers. Feedback in the form of a model answer will also be circulated and discussed after the grading exercise.
• Making oral submissions about pre-assigned governmental proposals to reform labour law from the perspective of key stakeholders in the labour law framework.
• Examining and, discussing pre-assigned factual scenarios and providing legal advice on those factual scenarios.
• Leading the class discussion on allocated activities

Students will receive feedback from the teacher during the seminars. This will include immediate individual feedback on their communication and analytical skills conveyed when students lead the class discussion. It will also include group and individual feedback on how well student contributions to class have informed the class or group about the operation, application and reform of labour law.

Strategy 3 (Engaging in Mini Lectures and Guest Lectures): Mini-lectures will be used in this subject to explain points or topics that students have had difficulty with in the past, to assist students to analyse, evaluate and present an argument about labour law, introduce or give background to a class activity, and to summarise and/or to give a teacher’s view on a prior class discussion. Guest lectures by current practitioners will also be arranged and provide students with the opportunity to evaluate such things as the adequacy of labour law reform and to understand the perspectives of key stakeholders. Students are encouraged to actively engage by asking questions and challenging ideas during lectures.

Strategy 4: Online Discussion: On Canvas students can engage in further discussion of key topics. Students can share their questions, ideas and material they have researched on the open discussion forums on Canvas with guidance and feedback from the teacher.

Subject Delivery

This subject is taught in one 3 hour in-person seminar per week throughout the session. The main class activities are designed to engage students and for students to inter-act with each other and staff using high-order evaluative, collaborative and communication skills deployed by professionals in practice. Students must attend and actively participate in the in-person seminars.

Content (topics)

Part 1 Introduction to Labour Law

• Defining Labour Law
• Sources of labour law including awards, agreements, employment contracts, statute and case law
• Regulatory Bodies and Labour Law stakeholders including employer organisations and unions
• Purposes and Theories of Labour Law

Part 2 Employment Compared to Other Work Relationships

• The distinction between employee and independent contractor
• The legal regulation of precarious work or special types of work

Part 3 The History and Constitutional Basis of Australian Labour Law

• Major legislative reforms to labour law since federation in historical and political context
• The constitutional basis of Australian labour law

Part 4 Employment Rights and Responsibilities under the Common Law

• Rights and Responsibilities of Employees under the common law
• Rights and Responsibilities of Employers under the common law

Part 5 Minimum Standards

• Minimum Terms and Conditions of Employment under the Federal Legislative system

Part 6 Workplace Bargaining

• Negotiating and Making Workplace Agreements under Federal Legislation
• Industrial Action under the common law
• Taking industrial Action pursuant to Federal legislative provisions

Part 7 Termination of Employment

• Termination of Employment at common law
• Termination of employment under Statute (including Unfair dismissal)
• Transfer of Business

Assessment

Assessment task 1: Research Essay

Intent:	This task is intended to assess your research skills, your ability to analyse and evaluate issues in relation to the development of the law, and your ability to develop a clear and well-reasoned argument on the adequacy and scope for reform of labour law in writing in relation to these issues.
Objective(s):	This task addresses the following subject learning objectives: 1, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.5.1
Weight:	40%
Length:	1,700 words (maximum)
Criteria:	sustain a critical, justifiable, well-reasoned, persuasive written argument throughout the essay SLO 4, GA 3.0 provide a clear and logical argument structure and essay structure SLO 4, GA 5.0 anticipate and respond to objections to the student’s argument SLO 4. G A 3.0 provide a persuasive perspective on the adequacy of, and scope for reform in, labour law. SLO 3, GA 3.0 use relevant primary and secondary materials and other relevant class materials to critically evaluate the adequacy of, and scope for reform in, labour law SLO 3, GA 3.0 write clearly, succinctly, precisely and persuasively SLO 4 GA 5.0 Clear and accurate explanation of relevant law, policy and issues SLO 1, GA 1.0 Appropriate research of secondary and primary resources relevant to the essay question SLO 1, GA 1.0 An appropriate bibliography. SLO 1, GA 1.0.

Assessment task 2: Client Legal Advice and Submission to Governmental Inquiry

Intent:	The client legal advice is intended to assess students’ ability to apply labour law. The submission to governmental inquiry is intended to assess students’ ability to write persuasively about reform of labour law from the perspective of a key stakeholder.
Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.6.1
Weight:	50%
Length:	2,400 words (maximum)
Criteria:	Client Legal Advice Correct identification of important legal issues. SLO 2, G A 1.0 and 3.0 Correct application of relevant cases and statutory materials SLO 2, G A 1.0, and 3.0 Succinctness, precision, clarity and persuasiveness and of writing and arguments SLO 4, GA 3.0 and 5.0 Correct advice on the appropriate action to take (if any). SLO 2, GA 3.0 Submission to governmental inquiry provide a justifiable, well-reasoned persuasive and sustained written argument which has a clear and logical structure. SLO 4, GA 3.0 Critical evaluation of reform proposal(s) SLO 3; GA 3.0 Alignment of stakeholder viewpoint, written argument and evaluation of reform proposal(s). SLO 3; GA 3.0 anticipate and respond to objections to the student’s argument SLO 4, G A 3.0 write clearly, precisely and persuasively SLO 4, GA 5.0 Clear and accurate explanation of relevant law, policy and issues. SLO 1, G A 5.0

Assessment task 3: Seminar Participation

Intent:	This assessment task is intended to assess your active contributions to seminar discussions and activities.
Objective(s):	This task addresses the following subject learning objectives: 1 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.5.1 and LAW.6.1
Weight:	10%
Criteria:	Regular and active participation beyond your allocated question(s) in all seminar activities including large group and small group discussions and active collaboration with peers during seminars throughout the teaching session SLO 1, GA 5.0 Justifiable, well-reasoned and persuasive contribution to advanced class discussions throughout the semester SLO 1, and 4; GA 3.0 and 5.0 Speak in class in a manner that demonstrates preparation of class materials and questions prior to class SLO 1 and 4; G.A 1.0 Answer allocated questions supported with appropriate arguments, reasons or relevant primary and secondary material. SLO 1 and 4; G.A 3.0 and 5.0

Required texts

• Joellen Riley Munton, Labour Law: An Introduction to the Law of Work (Oxford University Press, 2021).
• Fair Work Act 2009 (Cth)

Both of these items are essential reading. Students must have the current edition of the textbook and must bring the text book to class.

Note that there are also cases to read most weeks which students need to access online. There are also some materials to read which are available through UTS library. (See seminar guide for details of each week's readings)

Recommended texts

• Breen Creighton and Andrew Stewart Labour Law 6th Edition (Federation Press, 2016).
• Marilyn Pittard and Richard Naughton Australian Labour and Employment Law (Lexis Nexis, 2015).
• Carolyn Sappideen, Paul OGrady and Joellen Riley Mackens Law of Employment 9th Edition (Law Book Co / Thomson, 2022).

References

Principal Legislation

Fair Work Act 2009 (Cth)

Australian Books

Christopher Arup et al (eds) Labour Law and Labour Market Regulation (Federation Press, 2006).

Marian Baird,, Keith Hancockand Joe Isaac, J (eds) Work and Employment Relations: An Era of Change (Federation Press, 2011).

Alex Bukarica, and Andrew Dallas, Good Faith Bargaining under the Fair Work Act- Lessons from the Collective Bargaining Experience inCanada and New Zealand (Federation Press, Sydney, 2012).

Breen Creighton & Anthony Forsyth (eds), Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective (Routledge, New York, 2012).

Anthony Forsyth and Andrew Stewart, (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy, (Federation Press, Sydney, 2009).

Anthony Forsyth, et al, Navigating the Fair Work Laws,(Thomson Reuters Lawbook Co., 2010).

Anthony Forsyth The Future of Unions and Worker Representation: The Digital Picket Line, 2022.

Joydeep Hor and Louise Keats, Managing Termination of Employment; A Fair Work Act Guide (CCH, 2nd Edition, 2009).

John Howe, Anna Chapman, and Ingrid Landau (Eds.) The Evolving Project of Labour Law: Foundations, Development and Future Research Directions. (The Federation Press, Sydney, 2017)

Richard Johnstone et al, Beyond Employment: the Legal Regulation of Work Relationships (Federation Press, 2012).

Ian Neil and David Chin, The Modern Contract of Employment (Thomson Reuters, 2nd Ed 2017).

Shae McCrystal, The Right to Strike in Australia, (Federation Press, 2010).

Ron McCallum Employer Controls Over Private Life (UNSW Press, 2000).

Joellen Riley, Employee Protection at Common Law (Federation Press, 2005).

Joellen Riley, Independent Work Contracts (Thomson, 2007).

Andrew Stewart, Understanding Independent Contractors (CCH, 2007).

Andrew Stewart, Jim Stanford and Tess Hardy The Wage Crisis in Australia University of Adelaide Press, 2018

International books

Gordon Anderson, Douglas Brodie and Joellen Riley The Common Law Employment Relationship: A Comparative Study (Edward Elgar, 2017)

Greg Bamber et al, International and Comparative Employment Relations (Sage, 7th edition, 2022).

Rodger Blanpain, (ed), Comparative Labour Law and Industrial Relations in Industrialized Market Economies, (Kluwerlaw International, 2014).

Douglas Brodie, The Employment Contract: Legal Principles, Drafting and Interpretation (Oxford University Press, 2005).

Mark Freedland, The Personal Employment Contract (Oxford University Press, 2003).

Hugh Collins, Employment Law (Oxford University Press, 2nd Ed, 2010).

Australian Journals

Australian Journal of Labour Law

Journal of Industrial Relations (non-legal)

Economic and Labour Relations Review (non-legal)

Australian Bulletin of Labour (non-legal)

Labour and Industry (non-legal)

International Journals

Industrial Law Journal (UK)

International Journal of Comparative Labour Law and Industrial Relations

Comparative Labor Law Journal / Comparative Labor Law & Policy Journal

International Labour Review

Online Resources

CCH Online (intelliConnect) is available through the library catalogue and has a number of useful resources under the heading ‘Industrial Relations’ including Australian Employment Law Case Round Up; Australian Labour law Reporter and Australian Industrial Law Reports

Reports

Industrial Reports (available online through UTS library)

Websites

Fair Work Commission http://www.fwc.gov.au/

Fair Work Ombudsman https://www.fairwork.gov.au/

Commonwealth Department of Employment, workplace Relations http://employment.gov.au

Centre for Employment and Labour Relations Law, University of Melbourne: http://celrl.law.unimelb.edu.au/