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Research Essay

Instructions and guidelines

Word length: 2,500 words.

Task: Please select and answer ONE of the available essay questions.

Bibliography: Please include a bibliography of the sources used in preparing the essay.

Criteria for assessment of the final research essay

Students will be assessed in accordance with the following criteria:

1.    Analysis:
a.    clear articulation of the relevant issues and relevant law;
b.    presentation of a logical argument that addresses the question and engages with the relevant issues;
c.    ability to critically analyse the existing law and policy, using theoretical, contextual and historical perspectives;
d.    ability to anticipate and respond to possible objections; and
e.    critical analysis of the relevant literature (does not merely summarise the literature).

2.    Research:
a.    use of an appropriate range of primary and secondary sources that are relevant to the topic;
b.    depth and breadth of research.

3.    Organisation and structure:
a.    clear and coherent structure;
b.    construction of a sustained argument throughout the essay.

4.    Expression:
a.    clear and precise expression;
b.    accurate spelling and grammar.

5.    Citation and referencing:
a.    accurate citation and referencing which complies with the Australian Guide to Legal Citation (3rd ed).

Question 1

Professor Joellen Riley said the following in relation to modern employment contract law:

Despite the adoption of the notion of ‘contract’ – a liberal conception of a freely entered bargain between autonomous actors – an expectation of subservience is still embedded in legal understandings of … [employment] relationships. … The status based ‘master servant’ relationship has had a profound influence on modern employment contract law.  It explains the persistence of the “control” test … and many of the implied duties in the employment relationship, notably the employee’s duties of obedience and loyalty to the employer.

Critically analyse this statement.  To what extent (if at all) does the law regarding the contract of employment entrench the subordinate status of employees?

Question 2

As part of its submission to the 2015 Productivity Commission Inquiry into the Workplace Relations Framework, the ACTU considered the two High Court of Australia decisions in Board of Bendigo Regional Institute of Technology and Further Education v Barclay (‘Barclay’)  and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (‘BHP’).  The ACTU, following Barclay and BHP, described the law in the following terms:

[T]he current state of the law … is unsatisfactory and uncertain and appears to allow for the essential purpose of the general protections provisions to be undermined by artificial and semantic descriptions of the reasons for employer conduct that belie objective reality.

Evaluate these criticisms. In your answer, you should discuss Barclay and BHP and cases decided since, together with jurisprudence interpreting the predecessors to part 3-1 of the Fair Work Act 2009 (Cth).

Question 3

In its submission to the Productivity Commission’s review of the workplace relations framework, the Australian Chamber of Commerce and Industry said the following in relation to the current system of enterprise bargaining:

Collective bargaining has traditionally served to address a perceived power imbalance between employers and employees when negotiating wages and terms and conditions of employment. However imbalances in the FW Act bargaining framework give unions the upper hand in bargaining negotiations.

Do you agree with the ACCI? In answering this question, analyse the law in relation to the making and negotiation of single-enterprise agreements. Note: You can confine your analysis to particular issues, but if you do this you must also justify the choices you make.

Question 4

Critically analyse an employer’s capacity to discipline or dismiss an employee in relation to conduct occurring outside of working hours. Have an employer’s powers in such situations intruded impermissibly into the private lives of employees? In your answer confine your discussion to the obligations existing at common law, and the manner in which these obligations have been interpreted by courts and tribunals in related contexts such as unfair dismissal proceedings.

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