78246 Employment 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 2025 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): (70211 Contracts AND 70311 Torts) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law) OR (70211 Contracts AND 70311 Torts)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 76015 Labour Law AND 76053 Workplace Relations Law AND 79013 Industrial and Labour Law AND 79031 Employment and Industrial Law
Description
Employment law is an important component of the legal regulation of business. In this subject students examine the key aspects of Australian employment law currently pertaining to workplace rights, entitlements, liabilities and obligations of work providers 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.
Employment 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 employment law, the position and influence of key stakeholders involved in law reform processes and changes that are likely to be made to employment law in the future and on what basis those changes will be made.
In the seminar activities in this subject students have the opportunity to learn the skills of applying current employment law to provide advice. Students also undertake critical analysis and evaluation of debates within employment law which underlie legal reforms. Students develop a proposed outline of research and receive feedback on it. One option for this research proposal is for students to develop research skills by setting their own research topic. All students write either a major research essay or a written government submission about proposals to reform employment law that mirror the work undertaken by professionals involved in making submissions to governmental bodies. Given that most students go on to be involved in paid work regulated by the law studied in this subject, employment law forms an important part of the knowledge required for professional life.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Identify and explain the key legal principles and policies underpinning Australian employment law. |
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| 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 employment law from the perspective of key stakeholders. |
| 4. | Construct and effectively articulate critical, justifiable, persuasive and well-reasoned legal and scholarly arguments. |
| 5. | Identify, analyse and synthesise research materials and justify their relevance to employment law and proposed reforms to that law. |
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 and commentary 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’ folder 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 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 practise these skills through class discussion and collaborative activities which enable students to identify and explain the key principles of employment 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 learn how to construct arguments persuasively by critically analysing primary and secondary material and applying that material to answer conceptual and policy-focused questions. These advocacy skills become more practice-oriented as the session progresses. Students apply these skills to resolve legal problems, provide advice and make oral submissions regarding law reform proposals from the perspective of key stakeholders.
Students undertake a number of collaborative exercises in the seminars including:
- Undertaking critical reading of research skills exercise in week 1.
- Undertaking and discussing writing tasks to improve students’ skills in written argumentation.
- Examining, discussing and debating pre-assigned policy-focused questions designed to allow students to critically evaluate the employment law framework and proposals to reform employment law.
- Providing and receiving peer feedback on another student’s written response to a policy-focused question. Students will be provided with a simplified version which is modelled on the grading criteria for their 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 employment law from the perspective of key stakeholders in the employment 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 receive feedback from the teacher during the seminars. This includes immediate individual feedback on their communication and analytical skills conveyed when students lead the class discussion. It also includes group and individual feedback on how well student contributions to class have informed the class or group about the operation, application and reform of employment law.
Strategy 3 - Engaging in Mini Lectures and Guest Lectures: Mini-lectures are 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 employment 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 provide students with the opportunity to evaluate such things as the adequacy of employment 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: Applying Research Skills: Students undertake independent research relevant to assessment tasks. Critical reading and analysis of scholarly materials for legal research and writing are important skills in law. These skills also translate into any professional context where critical, strategic and creative thinking is applied and communicated. Students practise skills in researching employment law topics by undertaking an exercise in evaluating employment law research materials in Week 1 or 2. All students then develop a proposal for research or an outline of research and receive feedback on this from teaching staff. This individual feedback will be provided to the student by the teaching staff
when the research proposal or outline has been formally assessed by the teaching staff. Students use this research proposal or research outline along with the feedback to develop and write a major piece of research for the final assessment.
Strategy 5: Optional 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
Subject to government health warnings, all classes will be taught on-site this session. Self-distancing is to be practised in all classrooms.
Content (topics)
Part 1: Introduction to Employment law
- Sources of employment law including awards, agreements, employment contracts, statute and case law
- Regulatory bodies and employment law stakeholders including employer organisations and unions
- Purposes and theories of employment law
- Conducting research on employment 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 Employment Law
- Major legislative reforms to employment law since federation in historical and political context
- The constitutional basis of Australian employment 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 under the common law
- Termination of employment under statute (including unfair dismissal)
Part 8: General Protections and Enforcement of Labour Standards
- Powers of the Fair Work Ombudsman
- Common law and statutory remedies for breaches of labour law
Part 9: Transfer of Business and Revision
Assessment
Assessment task 1: Research Proposal or Research Outline
| Intent: | The primary purposes of this Assessment Task are to: i) assist students to research and prepare for the writing of a focused, structured and well-argued Major Research Assessment which answers a well-defined research question; and ii) to receive feedback on their plans for a major research essay or government submission from the teaching staff before the student writes the essay or submission. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 4 and 5 This task contributes specifically to the development of the following graduate attributes: .1, .1 and .1 |
| Weight: | 20% |
| Length: | 1000 words (excluding references and footnotes; 20% leeway allowed) |
| Criteria: |
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Assessment task 2: Major Research Assessment - Research Essay or Submission to Governmental Inquiry
| 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, your ability to develop a clear and well-reasoned argument on the adequacy and scope for reform of employment law in writing in relation to these issues, and your ability to respond to feedback. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: .1, .1, .1 and .1 |
| Weight: | 60% |
| Length: | 3,000 words (excluding references and footnotes; word limit strictly enforced) |
| Criteria: |
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Assessment task 3: Seminar Participation
| Intent: | This assessment task is intended to assess your active contributions to seminar discussions and activities. |
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| 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: .1 |
| Weight: | 20% |
| Criteria: |
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Required texts
- Joellen Riley Munton, Labour Law: An Introduction to the Law of Work, Third Edition (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; must bring the textbook to class; and have access to the Fair work Act in class.
Note that there are also cases to read some weeks which students need to access online. There are also some materials which students must read which are available through the UTS library (see the seminar guide for details of each week's readings).
Recommended texts
Andrew Stewart, Stewart's Guide to Employment Law, 6th Edition, Federation Press, 2018.
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 O'Grady, Joellen Riley and Geoff Warburton, Macken's Law of Employment, 8th Edition, Law Book Co (Thomson), 2016. (A 9th edition of this text may become available during session.)
References
Principal Legislation Fair Work Act 2009 (Cth)
Other resources
Australian Books
Christopher Arup et al (eds) Labour Law and Labour Market Regulation (Federation Press, 2006).
Marian Baird, Keith Hancock and 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 in Canada and New Zealand (Federation Press, Sydney, 2012).
Breen Creighton and 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).
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 edition, 2017).
Shae McCrystal, The Right to Strike in Australia, (Federation Press, 2010).
Shae McCrystal, Breen Creighton and Anthony Forsyth Collective Bargaining under the Fair Work Act (Federation Press, 2018)
Ron McCallum Employer Controls Over Private Life (UNSW Press, 2000).
Joellen Riley, Independent Work Contracts (Thomson, 2007).
Andrew Stewart, Understanding Independent Contractors (CCH, 2007).
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: National Regulation and Global Challenges, (Sage, 6th edition, 2016).
Roger Blanpain, (ed), Comparative Labour Law and Industrial Relations in Industrialized Market Economies, (Kluwerlaw International, 2010).
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 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 http://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/