Kramar5e ch03

CHAPTER 3
THE LEGAL CONTEXT

FOR HUMAN RESOURCE
MANAGEMENT
Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd; Kramar, Bartram, De Cieri, Noe,
Hollenbeck, Gerhart, Wright, Human Resource Management: Strategy, People, Performance, 5e 3-1
Learning objectives
LO 3.1 Understand the legal context for
human resource management (HRM) in
Australia
LO 3.2 Identify the major equal
employment opportunity (EEO) laws in
Australia (at a federal and state level)
LO 3.3 Identify the types of
discrimination and how managers might
go about preventing their occurrence
continued
Learning objectives
LO 3.4 Identify the forms of sexual
harassment behaviours and the
strategies that might be employed to
prevent these behaviours
LO 3.5 Identify and discuss the
essential issues involved in affirmative
action laws for women in Australia
Legal environment in Australia
• The Constitution
• State
• Conciliation and arbitration system
• Wages and conditions
• Contract of employment
Constitution
A set of rules and principles by which a
body (e.g. nation or sports club) may be
governed and power relations defined
State
• Generic term covering not simply the
government of the day, but all the other
apparatus as well (including
bureaucracy, judiciary, etc.)
• Law developed from court decisions or
the judgements that guide the
interpretation of legal obligations
Conciliation and arbitration
system
• A system whereby industrial parties are
encouraged to sort out their differences
by means of conciliation (with the
assistance of the industrial tribunal);
however, when this fails to produce a
negotiated outcome the tribunal may
impose a binding decision: that is
arbitration
continued
Conciliation and arbitration system
Sometimes this system is called
compulsory conciliation and arbitration
because the industrial parties must come
to conciliation if the other party (or the
tribunal) calls for this to happen, and any
decision is binding on the parties
Wages and conditions
• Constitutional focus: federal jurisdiction,
but some workers covered by state
government industrial relations
machinery
• Future of state machinery is changing:
Work Choices
continued
Wages and conditions
Awards: written determinations created
by federal or state industrial tribunals,
specifying the minimum terms and
conditions of employment, such as hours
of work, minimum pay and types of leave
allowable
Contract of employment
• Contracts of service (i.e. employment)
• Contracts for service(s) (i.e. work
performed by non-employees)
• Challenge of ‘Who is an employee?’
• Existence of modern organisations in a
complex legal matrix
Equal employment opportunity
laws
Equal employment opportunity (EEO) is
the government’s attempt to ensure that
all individuals have an equal opportunity
for employment, regardless of
characteristics such as race, colour,
religion, gender or national origin
continued
Equal employment opportunity laws
From human rights origins to business
case: the ‘business case’ suggests that
promoting EEO in a workplace will result
in great dividends for the organisation in
terms of being able to meet the interests
and aspirations of its customers. It will
promote a harmonious and productive
workplace internally, and has been
particularly popular in Australia
Managing diversity (or
diversity management)
• A process of managing people’s
similarities and differences, built on a
set of values that recognises that the
differences between people are a
potential strength for the organisation
and employees experience personal
growth
continued
Managing diversity
• It taps into the potential of all
employees and makes the greatest use
of their differences. It acknowledges,
understands and appreciates
differences in a workforce in order to
value, use and develop the potential of
all employees, and also has the
advantage of creating superior
business results
continued
Managing diversity
• In Australia, however, managing
diversity has not yet received any kind
of statutory recognition
Discrimination
• Acts involving a distinction, exclusion,
restriction or preference between one
individual/group and another, which
purposefully or effectively disadvantages
one
• Anti-discrimination laws in the workplace:
individual complaint model that attempts
to provide redress for an aggrieved
individual who has suffered discrimination
on the basis of a group characteristic
continued
Attributes of discrimination
• gender • political opinion
• marital status • religion
• pregnancy • caring
• breastfeeding responsibilities
• sexuality • transgender status
• race • HIV/AIDS status
• colour • physical features
• age • trade union activity
• mental or physical • criminal record
disability
Kinds of discrimination
• Direct discrimination:
– when someone is treated less
favourably on the basis of a particular
characteristic (e.g. gender) than
someone with a different
characteristic in circumstances that
are materially the same
continued
Kinds of discrimination
• Indirect discrimination:
– when a compulsory requirement is
attached to a job (which has nothing
to do with the real performance of the
job) which would prevent substantial
proportions of particular groups from
being able to comply and the
individual in question cannot comply
Sexual harassment at work
• Behaviour of a sexual nature that is
neither welcome nor solicited
• Examples include the telling of risqué
jokes and inappropriate comments,
touching or leering, repeated requests
for dates and more overt acts of a
sexual nature that may constitute
sexual assault under the criminal laws
• Cost to employers in terms of publicity
Affirmative action programs
• Affirmative action programs: quotas and
other forms of reparation to
compensate for past injustices suffered
by a class or group of persons
• This has most famously occurred in the
US in the case of African-American
people (or positive discrimination)
• Federal Australian legislation has never
provided for quotas
Recruitment and selection
• At selection, assumptions should not be
made about how a particular group
attribute (e.g. gender or age) will affect
a person’s ability to do the job
• Responsibility for keeping within a non-
discriminatory framework lies with the
employer and the employer’s
representatives in the HR office
continued
Recruitment and selection
• The discrimination laws do not end with
hiring and apply equally to decisions
concerning promotion, transfer and
training
Termination of employment
• Unfair dismissal:
– generally refers to a situation where
regard for a fair procedure (e.g. the
right to hear of a transgression and
be given the opportunity to defend
oneself) has been ignored or where a
transgression itself does not
reasonably suggest dismissal as an
appropriate management response
continued
Termination of employment
• Best practice organisations keep
careful records of verbal and written
warnings given to poor performers
Occupational health and safety
• The physical, physiological and
psychosocial conditions of an
organisation’s workforce, related to
aspects of work and the work context
• Across all Australian jurisdictions,
employers have an absolute duty (in
some states to the extent practicable) to
ensure the health and safety of
employees and other persons who may
come onto their work premises
continued
Occupational health and safety
• Under OHS legislation, the primary
responsibility for OHS remains with the
employer. There are extensive
consultative rights given to workers and
their unions
• Many workplaces must have joint
union–management OHS committees
or other approved consultative
mechanisms
Summary
• The role of law in the Australian
workplace remains highly contested
• HRM must operate within legal
constraints
• All managers need a good
understanding of legal requirements
and prohibitions

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CHAPTER 3

THE LEGAL CONTEXT

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