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The State Should Stay Out of the Employment Relationship

Essay Topic: ,

The employment relationship may be defined as the relationship between employer and employee over the terms and conditions of employment (Loudoun, Mcphail & Wilkinson 2009). In Australia, the industrial relations had become a big issue, so “following the 24 November 2007 Federal election, the Rudd Labor Government began work on its promises to re-shape Australia’s industrial relations system. ” (Riley & Sheldon 2008) However, some people think that the state should stay out the employment relationship.

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This essay will argue that the state should stay in the employment relationship because it makes the roles and has the rights and responsibilities for the employee and employer in working environment. The state is an influential actor in employment relations (Bray 2012). It protects the employee and employer, set industrial disputes, establishes the health and safety standards, the minimum wages and maximum working hours. There is a large body of statute law (legislation) that regulates employment relations in Australia at both the federal and state level (Bray 2012).

Such as Racial Discrimination Act 1975 and Sex Discrimination Act1984 for anti-discrimination, Common Law and Statute Law for the occupational health and safety (OHS). The main apparatuses of the state for employment relations are state and federal government departments, agencies, tribunals and courts (Loudoun, Mcphail & Wilkinson 2009). At federal level, the functions of a number of existing agencies and tribunals will be brought together in 2010 under one body known as ‘Fair Work Australia’ (Loudoun, Mcphail & Wilkinson 2009).

Also there are some other organisations like Australian Industrial Registry, Work Choices, and National Employment Standards and so on. This essay will analyse two key arguments to explain why the state should stay in the employment relationship. Firstly, this essay will argue this topic from the issue of discrimination in Australia including age discrimination, sex discrimination racial discrimination and so on.

In the case of Australia, comprehensive, albeit fragmented, anti-discrimination legislation has been enacted which prohibits the use a wide range of criteria in any and all aspects of employment decision-making, including recruitment, selection, training, compensation and separation (Bennington & Wein 2000). Secondly, this essay will provide the support of occupational health and safety (OHS) to prove the state should stay in the employment relationship.

According to the Australian Bureau of Statistics, a work related injury survey indicated a 53 out of every 1000 workers had experience some kind of injury or illness in the workplace (Alice 2012). Overall, this essay will make a conclusion; combine these two main points to argue that the state should stay in the employment relationship. Norris (as cited in Loudoun, Mcphail & Wilkinson, 2009, p. 225) states that discrimination occurs where members of one group of people are denied opportunities to develop their capabilities and denied equal rewards for equal capabilities.

In Australia, there are several kinds of discrimination such as age, gender, racial and disability. For these discriminations, the state enacted a range of anti-discrimination legislations which are supported by the federal Human Rights and Equal Opportunity Commission (HREOC) such as Age Discrimination Act 2004, Sex Discrimination Act 1984, Racial Discrimination Act 1975 and Disability Discrimination Act 1992. Age stereotyping appears to affect older people, whose situation receives much less attention than the problem of youth unemployment (Encel 1999). In Australia, age discrimination in working environment is alive and well.

Research by Macdermott (2011) state that some state and territory legislation dates back almost two decades, and in 2004 the Australian Government enacted specific legislation outlawing age discrimination which is Age Discrimination Act 2004. By now, it has been operated for eight years and prohibits the discrimination on the basis of age. Recent research vindicates this prediction, demonstrating that women at all levels of management still report gender discrimination as a barrier to their advancement in Australia (Metz & Moss 2008). The gender pay gap is also reflected in the low numbers of women in leadership positions (Goward 2004).

Therefore, the state enacted Sex Discrimination Act 1984 to assist the government for this issue. Under the Sex Discrimination Act it is unlawful to discriminate on the basis of gender, marital status, pregnancy and family responsibility (Loudoun, Mcphail & Wilkinson 2009). Racial discrimination includes race, colour, belief and national or ethnic origin. Australia is a multicultural country; a large number of people are from different countries. They have different cultural background like language, race, colour, belief and so on. Therefore, the racial discrimination has become one of the most serious discriminations in Australia.

For prohibiting it, Australia government legislate the Racial Discrimination Act 1975. Disability has many forms. According to Brazenor (2002), ‘a disability is defined as any limitation, restriction, impairment … has lasted or is likely to last six months. ’ Loudoun, McPhail & Wilkinson (2009) also indicated that the unemployment rate for those with a disability (8. 6%) was higher than those without a disability (5%). The Disability Discrimination Act 1992 has already operated in many areas for several years and protected the rights of people who are disabled.

Another prominent explanation for why the state should stay in the employment relationship is the health and safety. Mayhew and Peterson (as cited in Loudoun, Mcphail & Wilkinson, 2009, p. 257) defined OHS as the physical, physiological and psychosocial conditions of an organisation’s workforce, related to aspects of work and the work context. Health and safety is an employer’s duty that overrides all other management responsibilities. The role of effective OHS management is to improve OHS conditions and reduce risks that exist at a workplace (Loudoun, Mcphail & Wilkinson 2009).

There are a lot of psychological and physical hazards in the workplace such as stress, chemical and biological agents and so on. For the OHS issue, there are two main parts of laws in legal regulation in Australia. Firstly is the Common Law. It is made by judge or court based on precedent. Under the Common Law, it involves Criminal Law which is initiated by the state and Civil Law that is initiated by an individual. The second part is the Statute Law which is made by the parliament. There are two main bodies of statute law in health and safety including Workers Compensation Law and Health & Safety Acts.

The Workers Compensation Law aims to provide system of financial protection for all employers who suffer injury, illness or death due to work-related injury. The employers will get paid even if it is not their faults. About the Health and Safety Acts, Its aim is to prevent workers being injured in the first place. However, the key concept of ‘duty of care’ emerged in common law, not statute law. In conclusion, because of the state makes roles for the employment relationships and protects the employee and employer’s rights, the state should stay in the employment relationship in Australia.

This essay provided two key arguments to explain and prove the topic which were the discrimination and OHS in the workplace. For the discrimination in employment relationship, the state enacted a serious of Acts including Sex Discrimination Act, Age Discrimination, Racial Discrimination and Disability Discrimination Act. On the other hand, the state made a number of laws such as Common Law and Statute Law for the OHS issues in the workplace. Both two arguments are all relevant to today’s Australian workplace and expose concerning questions regarding the future.