LAW 3517 - Law of Work

North Terrace Campus - Winter - 2018

This course examines the law governing work as it is evolving in the global era. It explores a range of regulatory mechanisms deployed in this area, including international norms as well as Australian statute and common law, and new forms of 'soft' regulation. Topics covered include: the law of work in the global era; the Australian regulatory system; the subject of the law of work, including the distinction between employees and independent contractors, and the nature of the 'firm'; the contract of employment, and common law rights and responsibilities at work; legislated safety net conditions and awards; security at work, including dismissal law; freedom of association; workplace bargaining, and resolving conflicts at work under the law.

  • General Course Information
    Course Details
    Course Code LAW 3517
    Course Law of Work
    Coordinating Unit Adelaide Law School
    Term Winter
    Level Undergraduate Law (LLB)
    Location/s North Terrace Campus
    Units 3
    Contact Intensive
    Available for Study Abroad and Exchange Y
    Prerequisites LAW 1501
    Incompatible LAW 3044
    Assumed Knowledge LAW 1503 or LAW 1510
    Restrictions Available to LLB students only
    Course Description This course examines the law governing work as it is evolving in the global era. It explores a range of regulatory mechanisms deployed in this area, including international norms as well as Australian statute and common law, and new forms of 'soft' regulation. Topics covered include: the law of work in the global era; the Australian regulatory system; the subject of the law of work, including the distinction between employees and independent contractors, and the nature of the 'firm'; the contract of employment, and common law rights and responsibilities at work; legislated safety net conditions and awards; security at work, including dismissal law; freedom of association; workplace bargaining, and resolving conflicts at work under the law.
    Course Staff

    Course Coordinator: Dr Joanna Howe

    Course co-ordinator: Associate Professor Joanna Howe
    Adelaide Law School
    Room 312, Ligertwood Building
    Phone: 8313 0878
    Email:joanna.howe@adelaide.edu.au

    Other teaching staff:
    Professor Andrew Stewart
    Adelaide Law School
    Room 224, Ligertwood Building
    Phone: 8313 4445
    Email: andrew.stewart@adelaide.edu.au


    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

    The course will be taught as a Winter intensive over 6 days from 9am-4pm. 
  • Learning Outcomes
    Course Learning Outcomes

    1. Identify, critically analyse and apply the historical context in which the legal regulation of work in Australian was established and operates.
    2. Identify the fundamental principles which underpin the modern law of work.
    3. Become skilled in the analysis of case law in relation to work issues.
    4. Become adept in interpreting complex and large statutory regulatory regimes in the Australian federal context as exemplified through their application to work relations.
    5. Develop the skills to apply legal principles in hypothetical problems regarding work.
    6. Develop and present convincing argument, both orally and in writing, in relation to the law of work.

    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Deep discipline knowledge
    • informed and infused by cutting edge research, scaffolded throughout their program of studies
    • acquired from personal interaction with research active educators, from year 1
    • accredited or validated against national or international standards (for relevant programs)
    1
    Critical thinking and problem solving
    • steeped in research methods and rigor
    • based on empirical evidence and the scientific approach to knowledge development
    • demonstrated through appropriate and relevant assessment
    1-6
    Teamwork and communication skills
    • developed from, with, and via the SGDE
    • honed through assessment and practice throughout the program of studies
    • encouraged and valued in all aspects of learning
    5,6
    Career and leadership readiness
    • technology savvy
    • professional and, where relevant, fully accredited
    • forward thinking and well informed
    • tested and validated by work based experiences
    5,6
    Intercultural and ethical competency
    • adept at operating in other cultures
    • comfortable with different nationalities and social contexts
    • Able to determine and contribute to desirable social outcomes
    • demonstrated by study abroad or with an understanding of indigenous knowledges
    5,6
    Self-awareness and emotional intelligence
    • a capacity for self-reflection and a willingness to engage in self-appraisal
    • open to objective and constructive feedback from supervisors and peers
    • able to negotiate difficult social situations, defuse conflict and engage positively in purposeful debate
    1-6
  • Learning Resources
    Required Resources

    3.1 REQUIRED RESOURCES

    TEXT BOOK
    Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton and Stewart's Labour Law (Federation Press: 2016, 6th edition)

    Recommended Resources
    Some of the key Australian reference books recently published in this area of law are:
    Owens, Rosemary and Riley, Joellen, The Law of Work, OUP 2011.
    Pittard, Marilyn J and Naughton, Richard, Australian Labour Law: Text, Cases and Commentary, Fifth Edition, Lexis Nexis Butterworths Australia 2010.
    Sappideen, Carolyn, O’Grady, Paul, Riley, Joellen, and Warburton, Geoff with Kate Eastman Macken’s Law of Employment, Seventh Edition, Lawbook Co, Sydney, 2011.

    The following are more general reference books examining current or recent issues relating to the law of work:
    Arup, Chris et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction and Regulation of Labour Markets and Work Relationships, Federation Press, Sydney, 2006.
    Bromberg, Mordy and Irving (eds), Australian Charter of Employment Rights, Australian Institute of Employment Rights, Hardie Grant, 2007.
    Bronstein, Arturo, International and Comparative Labour Law: Current ChallengesPalgrave Macmillan, Geneva, 2009.
    Conaghan, Joanne; Fischl, Richard Michael; and Klare, Karl (eds), Labour Law in an Era of Globalisation: Transformative Practices and Possibilities, Oxford University Press, Oxford, 2002.
    Conaghan, Joanne and Rittich, Kerry (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives Oxford University Press, Oxford and New York, 2005.
    Colvin, John HC, Watson, Graeme, and Ogilvie, Nicholas, An Introduction to the Industrial Relations Reforms LexisNexis Butterworths Australia, 2006.
    Davidov, Guy and Langille, Brian (eds), Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work, Hart Publishing, Oxford and Portland Oregon, 2006.
    Davidov, Guy and Langille, Brian (eds), The Idea of Labour Law, Oxford University Press, Oxford and New York, 2011.
    Forsyth, Anthony et al, Transition to Forward with Fairness: Labor’s Reform Agenda, Federation Press, Sydney, 2008.
    Forsyth, Anthony and Stewart, Andrew (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy, Federation Press, Sydney, 2009.
    Forsyth, Anthony et al, Navigating the Fair Work Laws, Thomson Reuters, Australia, 2010.
    Fudge, Judy and Owens, Rosemary (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms Hart Publishing, Oxford and Portland Oregon, 2006.
    House of Representatives Standing Committee on Employment and Workplace Relations, The Parliament of the Commonwealth of Australia, Making It Fair: Pay equity and associated issues related to increasing female participation in the workforce, Canberra, November 2009.
    McCrystal, Shae, The Right to Strike in Australia, Federation Press, Sydney, 2010.
    Mitchell, Richard (ed), Redefining Labour Law: New Perspectives on the Future of Teaching and Research Centre for Employment and Labour Relations Law, The University of Melbourne, Occasional Monograph Series, No 3, Melbourne, 1995.
    McCarthy, Erin, Jenkin, and Stewart, Andrew Parental Leave: A User-friendly Guide, Lawbook C, Australia, 2011.
    Murray, Jill (ed), Work, Family and the Law, 23 Special Edition of Law in Contextvol 23(1), Federation Press, Sydney, 2005.
    Riley, Joellen Employee Protection at Common Law Federation Press, Sydney, 2005.
    Riley, Joellen, Independent Work Contracts, Thomson Legal and Regulatory, Pyrmont, 2007.
    Riley, Joellen and Peterson, Kathryn, Work Choices: A Guide to the 2005 ChangesThomson Legal and Regulatory Limited, Australia, 2006.
    Teicher, J, Lambert, R and O'Rourke, A (eds), WorkChoices: The New Industrial Relations Agenda, Pearson Education Australia, Sydney, 2006.

    Specialist Journals and Publications:
    The Australian Journal of Labour Law is the leading Australian law journal dealing with the law that is examined in this course. It is an excellent reference resource for students.
    While not specialist law journals, both the Journal of Industrial Relations andLabour and Industry have many interesting articles about work-related issues in Australia.

    Some other useful resources include:
    CCH, Australian Labour Law Reporter
    The Australian Bulletin of Labour
    The Australian Economic Review
    The Economic and Labour Relations Review
    The Journal of Australian Political Economy
    Industrial Law Journal (UK)
    Most of these resources are available electronically through the library catalogue.


    Internet Resources:
    There are many websites carrying information about the law of work. The following are some of the more important and useful for students.

    Important information can be found on the websites of government and regulatory institutions such as:
    Fair Work Australia (newly named Fair Work Commission): www.fwa.gov.au 
    Fair Work Ombudsman: www.fairwork.gov.au 
    Department of Education, Employment and Workplace Relations: www.deewr.gov.au    
    Australian Human Rights Commission: www.humanrights.gov.au 
    Equal Opportunity Commission (SA): www.eoc.sa.gov.au 
    SafeWorkSA: www.safework.sa.gov.au 

    The website of the International Labour Organisation provides a wealth of information relating to the international regulation of work: www.ilo.org 

    Information is also available from various Australian business, trade union and other NGO websites. See for example:
    Australian Institute of Employment Rights: www.aierights.com.au 
    Australian Council of Trade Unions: www.actu.asn.au 
    Australian Industry Group: www.aigroup.asn.au 
    Australian Chamber of Commerce: www.acci.asn.au 
    Business Council of Australia: www.bca.com.au
    Online Learning
    MyUni will be used to post announcements, post additional lecture materials (including slides and, where available, audio recordings of lectures (students are encouraged to attend lecture classes as the availability of recordings cannot always be relied upon). MyUni will also be used to announce assignment tasks. It will also contain electronic copies of the course profile, lecture and seminar guides, and course materials.

    Students are expected to check MyUni regularly to keep up to date with these materials and additional learning resources throughout the course
  • Learning & Teaching Activities
    Learning & Teaching Modes

    This intensive will be taught through lectures and through seminars.

    Each day of the course will include a lecture and seminar component. Some additional lectures will also be available through MyUni. It is expected that students will have listened to these additional lectures before coming to class each day. The lectures will provide an overview of the topics to be examined in this course. The lectures will provide the background context to, and an overview of, the subject matter of the various topics in the course and will elucidate some of the connecting themes between these topics; the lectures will also focus on particularly important cases and other developments (eg, statutory and international) in the law of work. While the lectures will highlight and further elucidate some of the key elements set out in the textbook for the course, the content of lectures will be designed on the assumption that students will read the text book and any highlighted legislation and cases in order to complete matters of detail. Students are required to attend all lectures seminars. Attendance will be recorded for each day of the intensive. The lectures and seminars will also provide a forum for interaction and discussion between the lecturer and students. Recordings of lectures will be available via MyUni.
    Workload

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    Contact time: attend 6 days x 6 hour lectures (=36 hours). This amounts to 36 hours of formal class time across the semester.

    Preparation time: In addition to attending formal classes it is anticipated that students will do substantial independent work to prepare for class, and to complete course assignments. The University expects full-time students (those undertaking 12 units per semester) to devote a total of 48 hours per week to their studies.
    Learning Activities Summary
    Day 1 Introduction; The Australian Regulatory Framework (AS)
    Day 1 The Subject of the Law of Work – Who is an Employee? (AS)
    Day 2 The Subject of the Law of Work – Who is an Employee? (AS)
    Day 3 Rights & Responsibilities under the Contract of Employment (JH)
    Day 4 Work Standards –Legislative Safety Net & Awards (AS)
    Day 4 Enterprise bargaining (AS)
    Day 5 General Protections & Unfair Dismissal (JH)
    Day 6 Dispute Resolution & Enforcement (JH)
    Day 6 Vulnerable Workers (JH)

    Small Group Discovery Experience
    On the first day of the course, students will be split into small groups in their seminars.

    Throughout the course, these small groups will be used to facilitate discussion and answer problem questions. As such, before attending seminars, students are required to work through, and prepare answers to, the questions issued for each small group discussion. The small group discussion questions will assist students to structure their learning, and so they are expected to prepare for lectures in a systematic and serious way: reading relevant statutes, judgments and other texts and, most importantly, thinking about the questions and issues to be addressed in the small group.

    The small groups in this course will provide an opportunity for students to test their understanding of the work that they have completed prior to the seminar, to apply their knowledge to new situations and to extend their knowledge further. Small groups are an important component of learning in this course. The communication skills developed in small groups by regularly and actively participating in discussions are considered to be most important by Adelaide Law School and are highly regarded by employers and professional bodies. One of the primary tasks of the small groups will be to focus upon analysing problem questions. These questions will focus on practical examples relating to the law of work and are aimed to prepare students for practice in the field of employment law.

    Students are not permitted to swap small groups. If an emergency should arise whereby a student cannot be a part of a particular small group, the student should consult with the course coordinator. However, students should be aware that any request to move to a different small group may not be able to be accommodated.
  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary
    Assessment Task Task
    Task Type (Group or Individual) Due Redeemable (yes/no) Length Weighting Learning Outcome
    Case Note Summative Individual

    July 23, 2pm

    No

    1000 words

    30% 1-6
    Essay Summative Individual August 24, 2pm No 4000 words 70% 1-6


    Assessment Detail
    Case Note - 30% 

    Students must prepare a case note according to a topic provided by the course co-ordinator. The course co-ordinator will distribute the instructions on the third day of teaching for the course.

    The case note is to be a maximum of 1,000 words (footnotes and bibliography are not included in the word count but footnotes should not contain substantive material). There will be a penalty of 5% imposed for case notes that exceed this word length. 

    Citation and referencing The case note must comply with The Australian Guide to Legal Citation


    Research Essay – 70%

    Students must present a research essay on one of the topics provided by the course co-ordinator. The course co-ordinator will distribute topics on the last day of the course.

    Length The research essay is to be a maximum of 4000 words (footnotes and bibliography are not included in the word count but footnotes should not contain substantive material). 

    In research essays students are expected to show evidence of an independent capacity to research a legal issue – that is, they must show evidence of research that goes beyond materials discussed or references provided in classes. In presenting research essays care should be taken to reference in footnotes any work that is quoted or otherwise derived from other sources. Footnotes will not be included in the word limit, provided they contain only references and not substantive material. Essays must be accompanied by a full bibliography. The bibliography is not included in the word limit.

    The research essay must comply with The Australian Guide to Legal Citation.
    Submission
    All essays in this course (that is, both the Case Note and the Research Essay) are to be submitted electronically through Turnitin. Details for the electronic submission of Turnitin will be provided with instructions for each assessment. 

    Extensions: Requests for extensions must be made electronically according to Law School policy. Extensions will be granted only for unexpected illness, hardship or on compassionate grounds in accordance with University Policy. Work commitments, travel, holidays, or sporting engagements are not unexpected circumstances.
    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Courses for which a result of conceded pass has been obtained may not be presented towards the degree requirements for the Bachelor of Laws or the Honours Degree of Bachelor of Laws programs, or any postgraduate law program, nor to satisfy prerequisite requirements within any law course.

    Final results for this course will be made available through Access Adelaide.

    Finality of Assessment Grades

    Students are advised that Course Coordinators will not enter into negotiations of any kind with any student regarding changes to their grades. It is irrelevant, in any given circumstance, that only a minimal number of additional marks are required to inflate a student’s grade for any individual assessment item or course as a whole. Pursuant to the University’s Assessment for Coursework Programs Policyand the Adelaide Law School Assessment Policies and Procedures, grades may only be varied through the appropriate channels for academic review (such as an official re-mark).

    Moderation
    In accordance with the University’s Assessment for Coursework Programs Policy, course coordinators ‘ensure that appropriate marking guidelines and cross-marking moderation processes across markers are in place’ in each course. Procedures adopted by Adelaide Law School to ensure consistency of marking in courses with multiple markers include:
    • assurance of the qualifications of markers, and their knowledge of the content covered in each course;
    • detailed marking guidelines and assessment rubrics to assist in the marking of items of assessment;
    • sharing of example marked assessments at various grade bands across markers;
    • reviewing of selected marked assessments from each marker by the course coordinator;
    • comparison of the marks and their distribution across markers;
    • automatic double-marking of all interim assessment receiving a fail grade, and of final assessments where a student’s overall result is a fail grade;
    • the availability of re-marking of assessments in accordance with Adelaide Law School’s Assessment Policies and Procedures.

    Approval of Results by Board of Examiners
    Students are reminded that all assessment results are subject to approval (and possible moderation/change) by the Law School’s Board of Examiners. Assessment results at the University are not scaled. Under the Assessment for Coursework Programs Policy, students are assessed ‘by reference to their performance against pre-determined criteria and standards … and not by ranking against the performance of the student cohort in the course’. However, under that same policy, the Board of Examiners (as the relevant Assessment Review Committee for courses at Adelaide Law School) is required to ‘ensure comparability of standards and consistency’ in assessment. On occasions, the Board of Examiners will form the view that some moderation is required to ensure the comparability of standards and consistency across courses and years, and accordingly provide fairness to all law students. All assessment results are therefore subject to approval (and possible change) until confirmed by the Board of Examiners and posted on Access Adelaide at the end of each semester.
  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.
  • Student Support
    The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the University of Adelaide.

    The centre offers practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

    Lex Salus Program
    Lex Salus (law and wellbeing) is an initiative of the Adelaide Law School aimed at destigmatising mental health issues; promoting physical, mental and emotional wellness; building a strong community of staff and students; and celebrating diversity within the school. It also seeks to promote wellness within the legal profession, through the involvement of the Chief Justice of the Supreme Court of South Australia, the Honourable Chris Kourakis, as the official Patron of the program.

    Students can participate in the Lex Salus program by attending barbecue lunches, pancake breakfasts, knitting and crochet circles, seminars, guest speakers, conferences and other activities. Our Facebook page, website and regular all-student emails promote upcoming events, and have tips and information on wellness.

    Our Lex Salus YouTube channel also includes videos on topics like managing stress, and interviews with LGBTQ lawyers and their supporters which celebrate diversity and individuality. Students who commit to 10 hours of volunteering with Lex Salus in one year can have their service recognised on their academic transcript and through a thank you morning tea with the Chief Justice and law school staff.

    Student Life Counselling Support
    The University’s Student Life Counselling Support service provides free and confidential service to all enrolled students. We encourage you to contact the Student Life Counselling Support service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life.
  • Policies & Guidelines

    This section contains links to relevant assessment-related policies and guidelines - all university policies.

    Academic Honesty
    Academic dishonesty is a serious act of academic misconduct. All students must be familiar with the University’s Academic Honesty Policy.

    Academic dishonesty is a serious matter and is treated as such by the Law School and the University. Academic dishonesty (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to admit a person to practice as a legal practitioner in South Australia.

    Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.
  • Fraud Awareness

    Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student’s disciplinary procedures.

The University of Adelaide is committed to regular reviews of the courses and programs it offers to students. The University of Adelaide therefore reserves the right to discontinue or vary programs and courses without notice. Please read the important information contained in the disclaimer.