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Stewart's Guide to Employment Law

Stewart's Guide to Employment Law

6th edition

By Andrew Stewart

CONTENTSREVIEWS

Fifth edition of Stewart's Guide to Employment Law available until 31 January 2018, click on link to purchase.

Stewart’s Guide to Employment Law is renowned for its succinct and accessible coverage of this complex area of the law. The author’s unique expertise and experience make this a high-quality book with a clear and cohesive style. This is a highly regarded, dependable choice of book for anyone needing an introduction to employment law.

Key Features of the New Edition

  • This new edition explains the various amendments made to the Fair Work Act under the Turnbull Government, in relation to matters such as enterprise bargaining, industrial action and the enforcement of employment entitlements.
  • It highlights important changes to the regulation of workplace relations in the building and construction industry.
  • Covers the many variations made by the Fair Work Commission in the course of its first (and last) four-yearly review of modern awards.
  • Those variations include significant alterations to penalty rates in certain industries, as well as provisions on casual and part-time employment, payment of wages and the taking of annual leave.
  • The text has been updated to incorporate other new case law since the last edition, including important decisions on the making and termination of enterprise agreements, adverse action and termination of employment.
  • Reference is also made to various changes to State laws, particularly in Queensland, where the State industrial system was revamped in 2016.

CONTENTS

Preface
Table of Cases
Table of Statutes
Abbreviations

1. Employment Law: An Introduction

The Purpose of Employment Laws
Employment Regulation in Australia
Sources of Employment Law
Regulatory Bodies
Getting Information about Employment Laws

2. The Development and Coverage of Employment Laws in Australia

Development of Australian Employment Laws
The Work Choices Reforms
The Fair Work Legislation
The Scope of the ‘National’ System
Application of State and Territory Laws

3. Who is an Employee?

Why Employment Status Matters
Distinguishing Employees from Contractors
Avoiding or Disguising Employment
The Tax System
The Independent Contractors Legislation

4. Special Types of Employment

Casual Employment
Outworkers
Agency Labour
Trainees and Apprentices
Public Sector Employment
Voluntary Work

5. Creating an Employment Relationship

Controls on Hiring
Provision of Information
Formation of Employment Contracts

6. The Terms of an Employment Contract

Individual Contract Terms
Effect of Awards, Agreements and Statutes
Review of Unfair Work Contracts

7. Minimum Standards: The NES and Awards

Development of Minimum Standards
The National Employment Standards
The Modernisation of the Award System
Modern Awards under the Fair Work Act
State Awards

8. Enterprise Agreements

Options under the Federal System
Making an Enterprise Agreement
Regulating the Bargaining Process
Content of Agreements
Variation and Termination
Effect of Enterprise Agreements
Transitional Arrangements for Pre-Fair Work Act Agreements
State Agreements
Unregistered Collective Agreements

9. Dispute Resolution and Enforcement of Employment Laws

Introduction
Dispute Resolution in the Federal System
Compliance and Enforcement under the Federal System
The State Systems
Enforcing the Employment Contract
Insolvency and Employee Entitlements

10. Remuneration

Types of Remuneration
Wage Fixation
Minimum Wages for National System Employees
Minimum Wages for Other Workers
Pay Equity
Earning Remuneration
Payment of Wages
Superannuation

11. Working Hours and Leave

Working Hours
Public Holidays
Annual Leave
Personal Leave
Parental Leave
Long Service Leave
Community Service Leave
Other Forms of Leave

12. Control, Performance Management and Discipline

The Employee’s Duties
The Employer’s Duties
Performance Management and Discipline

13. Loyalty, Confidentiality and Privacy

Loyalty During the Employment Relationship
Post-Employment Duties
Post-Employment Restraints
Protecting Whistleblowers
Confidentiality and Privacy: The Employer’s Obligations

14. Discrimination and Victimisation

Anti-Discrimination Laws
The ‘General Protections’ under the Fair Work Act
Other Protections Against Victimisation

15. Workplace Safety

Work Health and Safety Laws
Workers Compensation
Common Law Liability for Workplace Injuries

16. Termination of Employment Contracts

Introduction
Duration and Expiry of Employment Contracts
Termination on Notice
Summary Termination
Constraints on Unilateral Termination
Termination by Agreement
Termination by Operation of Law
Entitlements on Termination
Redundancy
Effect of Insolvency on Employment Contracts
Transfer of Employment

17. Remedies for Wrongful or Unfair Termination

Remedies for Employers
Remedies for Employees
Common Law Actions for Wrongful Dismissal
Evolution of Unfair Dismissal Laws
Unfair Dismissal Claims under the Fair Work Act
Unlawful Termination
State Unfair Dismissal Laws
Other Remedies

18. Industrial Action

Introduction
The Position at Common Law
Sanctions under the Fair Work Act
Sanctions under Other Legislation
Protected Action

Glossary

Index


REVIEWS

Reviews of previous editions:

Published two years after the last edition this text covers the legislative changes and common law developments since then, including the Fair Work Commission’s power to deal with claims of workplace bullying.
          Whilst the text focuses on the fundamental concepts and principles of employment law it does go beyond that to some extent, looking at the reform agenda of the Abbott Government on issues such as parental leave, superannuation and changes to the building and construction industry to name but a few.
          The book is not bulked out with long quotations from legislation or by the reproduction of extended passages from judgments for every principle covered. That is not to say the relevant authorities for each principle are not cited but rather that the author communicates the concept as opposed to leaving it to the reader to decipher it from the source material.
          A broad array of topics ranging from Awards through to Workplace Safety are covered in the book and increases its appeal. Whilst wide ranging the text is not all encompassing. However, that is not the purpose of the book and the trade-offs made in this volume are well balanced ensuring it remains reader friendly but still of sufficient breadth to be a good general guide. Any reader wanting to consider an issue further will benefit from the selected readings at the end of each chapter.
          The book is most likely to be of benefit to those who need to be familiar with employment law, such as small businesses or someone employed in human recourses. That said, practitioners who are not familiar with this body of law will find it useful as a preliminary reference.
          The only criticism, albeit somewhat pedantic, this reviewer would make is that only the case name and year are cited in the chapters with the full reference not even footnoted. The inability to tell immediately from what jurisdiction a decision stems, without having to refer back to the case list at the front of the text, does on occasion necessitate some pause when reading.

Brendan Jones, Ethos, Law Society of the ACT, December 2015

The work is impressive in its ability to convey a vast amount of material in an accessible way. Like previous editions, any practitioner that is occasionally called upon to advise on an employment law or workplace relations issue would be greatly assisted by this text.

Dan Coombes, Law Letter, Law Society of the Tasmania, Spring/Summer 2015

This is the fifth edition in seven years of a text that describes itself as “an overview of the current law accessible to those who are not already experts in the field”. It’s a modest self-assessment for a book that is also a helpful first resource for those practising in industrial and employment law.
          The book contains an excellent, concise summary of most laws that interact with the workplace and includes chapters on minimum standards and entitlements, common law employment contracts, enterprise agreements, discrimination, workplace safety, unfair dismissal and industrial action. There is also a good outline of the historical development of employment laws in Australia and a worthwhile discussion of the policy objectives influencing previous and current laws, which is critical.
          The text’s analysis of the prevalence of casual employment in Australia in many of its different guises is particularly worthy.
          Key additions to this edition include some basic points about recent changes to the Fair Work Act 2009 brought about by the previous Labor government (such as changes to right of entry laws) and changes proposed by the current government, both those contained in the Fair Work Amendment Bill 2014 and those that have to date only been the subject of political discussion. More substantial is new content relating to emerging case law in the area of adverse action including an examination of the High Court decision in CFMEU v BHP Coal [2014].
          This is a text worth having on the shelf...

Dario Mujkic, InPrint, Law Institute Journal Victoria, November 2015

The book covers all the essential areas of Employment Law, including its proud history and development in Australia. If you don’t have this knowledge in your toolkit you will be disadvantaged from the outset. Andrew carefully tackles the complex area of law that is the difference between employees and independent contractors with plenty of references to the common law and its evolution from where it began, determining vicarious liability in the English courts.
          … it looks at the special types of employment, the creation and end of employment relationships, employment contracts, the NES, Awards, Enterprise Agreements, Dispute Resolution, Remuneration, Working Hours, Leave, Control, Performance Management, Discipline, Safety and Industrial Action. It examines implied duties of loyalty and confidentiality as well as the myriad of post-employment issues that arise from time to time. Lastly it covers the issues of discrimination, victimisation and the remedies for wrongful or unfair termination.
          Andrew really has covered all bases in this book which is easy to read and well structured. This is a book that should be on every practitioners shelf, whether you are new to field, looking for a good reference book to close a gap in an area you haven’t addressed for a while or to assist you in training your team. Read full review...

Theresa Moltoni, The IR Advocate, Industrial Relations Society of Qld, Sept-Oct 2015

The text is written in such a way as to make it useful to legal practitioners not regularly in the field of employment law, while remaining readable for students and those with a non-legal background seeking to identify key principles. While not going into great detail, the text provides the reader with an appropriate and concise understanding of the issues that are relevant and the referencing to further consider the same. At the end of each chapter, the guide makes reference to selected further readings which will be useful to those seeking a more in depth understanding of particular topics.
          Stewart's Guide to Employment Law is a beneficial resource, effectively structured, for students, practitioners and employers and employees seeking to identify relevant employment law principles. Read full review...

Dominic Katter, Hearsay, July 2015, 73

The goal of this book is to explain the way in which employment relationships are legally regulated in Australia. It achieves this by providing a useful overview of Australian employment law, designed to be accessible to those not already expert in the field. This fifth edition of Professor Stewart’s work has also been comprehensively updated including to explain the various changes made by the Fair Work Amendment Act 2013, part of the present government’s reform agenda, and to address new cases decided since the previous edition.

Queensland Law Reporter 24 April 2015 [2015] 15 QLR

Two years is a long time in Employment Law, yet that is how long has passed since the last edition of Stewart’s Guide was released. Described by the Australian Journal of Labour Law as ‘a masterpiece of clarity and [a] succinct exposition of the law’, the new edition has been eagerly awaited. Now in its fourth edition, the author’s aim continues to ‘provide an overview of the current law that is accessible to those who are not already experts in the field’.
          Stewart’s Guide is renowned as being an accessible first port of call text. This is done by using accessible language, eliminating footnotes and confining full case citations to the Table of Cases. To guide further reading, a selected reading guide is included at the end of each chapter. The handy glossary included in the third edition remains.
          ... This text is indispensable for practitioners who are called upon to provide incidental advice in employment law. Simple language and sub-headings make the text very accessible. Each chapter provides just enough information to facilitate a targeted foray into further texts and case law as required.
          ... The book is not and was never intended to be a comprehensive and detailed text on the subject. Those seeking a more detailed text would be better off seeking a copy of Labour Law by Breen Creighton and Andrew Stewart or an annotated guide to the Fair Work legislation.

Dan Coombes, Law Letter, Law Society of Tasmania, June 2013

   

Publishing 19 February 2018
Publisher The Federation Press
Paperback/496pp
ISBN 9781760021542
Australian RRP $90.00
International Price $82.00
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Law - Industrial & Employment
Industrial Relations / EEO
Management & Human Resources


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