A story about being engaged in research : buzzing bees, small business and Australian unfair dismissal laws

Protection for employees from unfair dismissal (UFD) has been around in Australia under various guises for 30 years or so (Chapman, 2006). Labour standards, and particularly ILO Convention 158 (Convention Concerning Termination of Employment at the Initiative of the Employer 1982), underpin the adoption of a particular form of federal statutory UFD regime which first appeared in the 1993 reforms to the Industrial Relations Act 1998 (Commonwealth). Its existence, however, has not been uncontroversial, and the meaning, operation, scope and remedies have attracted attention over time. In fact, the first reforms to the federal UFD regime were undertaken under the Keating Labor government three months after they were enacted (Chapman, ibid.). Further reforms were made by the incoming Howard Liberal-national coalition government through the Workplace Relations Act 1996 (Commonwealth) (WRA), and arguably these reforms continued down the ‘contraction’ path (ibid.).

Constitutive Regulation of the Firm: occupational health and safety, dismissal, discrimination and sexual harassment

As many other chapters in this book have noted, until recently labour lawyers have tended not to draaw on regulatory scholarship. In this chapter we look at certain areas of labour law through a particular kind of regulatory lens - regulation that requires firms to reconstitute their management processes and procedures, perhaps even their organisational cultures. In particular, we examine the kinds of regulatory demands made on firms by legal rules in four areas of labour law: (i) occupational health and safety (OHS)regulation; unfair dismissal law; equal opportunity (EO) and (iv) sexual harassment law.

Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts

In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone. However, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Federal Court Rules O23 r 11 - offers of compromise - offer for dismissal of claim and to forego recovery of costs.

In Uniline Australia Ltd ACN 010752057 v S Briggs Pty Ltd ACN 007415518 (No 2) [2009] FCA 920 Greenwood J considered a number of principles guiding the exercise of discretion in relation to costs, particularly when offers of compromise have been made under the formal process provided by the Federal Court Rules.

The Down Under book and film remind us our copyright law’s still unfair for artists

Australian copyright law is broken, and the Australian Government isn’t moving quickly to fix it. Borrowing, quoting, and homage are fundamental to the creative process. This is how people are inspired to create. Under Australian law, though, most borrowing is copyright infringement, unless it is licensed or falls within particular, narrow categories. This year marks five years since the very real consequences of Australia’s restrictive copyright law for Australian artists were made clear in the controversial litigation over Men at Work’s 1981 hit Down Under. The band lost a court case in 2010 that found that the song’s iconic flute riff copied some of the 1934 children’s song Kookaburra Sits in the Old Gumtree. A new book and documentary tell us more about the story behind the anthem – and the court case. The book, Down Under by Trevor Conomy, and the documentary, You Better Take Cover by Harry Hayes, bring renewed interest and new perspectives on the tragic story.

Protecting the most vulnerable in consumer credit transactions

There are two key ways in which the Australian Uniform Consumer Credit Code seeks to protect consumers in relation to consumer credit transactions. The first is by means of disclosure regulation where information is required to be disclosed to the consumer before the credit contract is entered into and the second is by way of “safety net” provisions, where contracts can be varied or set aside in the event of hardship, a finding that the transaction was unjust, or a finding of unconscionable fees or charges. This article explores the limitations of both of these means of protection, particularly in the case of vulnerable, low-income consumers. In order to highlight the inadequacies of these forms of consumer protection and the need for regulatory reform, we draw on interviews conducted with 30 low-income consumers who had recently signed a credit contract, focusing on their understanding of information disclosed in the contract, as well as their responses to hypothetical unfair terms and their understanding of their rights, for example in the event of an unjust transaction. These interviews were conducted as part of a joint research project between Brotherhood of St Laurence and Griffith University’s Centre for Credit and Consumer Law, funded by Consumer Affairs Victoria.

Kindergarten students' understanding of probability concepts

This study explored kindergarten students’ intuitive strategies and understandings in probabilities. The paper aims to provide an in depth insight into the levels of probability understanding across four constructs, as proposed by Jones (1997), for kindergarten students. Qualitative evidence from two students revealed that even before instruction pupils have a good capacity of predicting most and least likely events, of distinguishing fair probability situations from unfair ones, of comparing the probability of an event in two sample spaces, and of recognizing conditional probability events. These results contribute to the growing evidence on kindergarten students’ intuitive probabilistic reasoning. The potential of this study for improving the learning of probability, as well as suggestions for further research, are discussed.

Employee work motivation and discretionary work effort

The focus of this thesis is discretionary work effort, that is, work effort that is voluntary, is above and beyond what is minimally required or normally expected to avoid reprimand or dismissal, and is organisationally functional. Discretionary work effort is an important construct because it is known to affect individual performance as well as organisational efficiency and effectiveness. To optimise organisational performance and ensure their long term competitiveness and sustainability, firms need to be able to induce their employees to work at or near their peak level. To work at or near their peak level, individuals must be willing to supply discretionary work effort. Thus, managers need to understand the determinants of discretionary work effort. Nonetheless, despite many years of scholarly investigation across multiple disciplines, considerable debate still exists concerning why some individuals supply only minimal work effort whilst others expend effort well above and beyond what is minimally required of them (Le. they supply discretionary work effort). Even though it is well recognised that discretionary work effort is important for promoting organisational performance and effectiveness, many authors claim that too little is being done by managers to increase the discretionary work effort of their employees. In this research, I have adopted a multi-disciplinary approach towards investigating the role of monetary and non-monetary work environment characteristics in determining discretionary work effort. My central research questions were "What non-monetary work environment characteristics do employees perceive as perks (perquisites) and irks (irksome work environment characteristics)?" and "How do perks, irks and monetary rewards relate to an employee's level of discretionary work effort?" My research took a unique approach in addressing these research questions. By bringing together the economics and organisational behaviour (OB) literatures, I identified problems with the current definition and conceptualisations of the discretionary work effort construct. I then developed and empirically tested a more concise and theoretically-based definition and conceptualisation of this construct. In doing so, I disaggregated discretionary work effort to include three facets - time, intensity and direction - and empirically assessed if different classes of work environment characteristics have a differential pattern of relationships with these facets. This analysis involved a new application of a multi-disciplinary framework of human behaviour as a tool for classifying work environment characteristics and the facets of discretionary work effort. To test my model of discretionary work effort, I used a public sector context in which there has been limited systematic empirical research into work motivation. The program of research undertaken involved three separate but interrelated studies using mixed methods. Data on perks, irks, monetary rewards and discretionary work effort were gathered from employees in 12 organisations in the local government sector in Western Australia. Non-monetary work environment characteristics that should be associated with discretionary work effort were initially identified through a review of the literature. Then, a qualitative study explored what work behaviours public sector employees perceive as discretionary and what perks and irks were associated with high and low levels of discretionary work effort. Next, a quantitative study developed measures of these perks and irks. A Q-sorttype procedure and exploratory factor analysis were used to develop the perks and irks measures. Finally, a second quantitative study tested the relationships amongst perks, irks, monetary rewards and discretionary work effort. Confirmatory factor analysis was firstly used to confirm the factor structure of the measurement models. Correlation analysis, regression analysis and effect-size correlation analysis were used to test the hypothesised relationships in the proposed model of discretionary work effort. The findings confirmed five hypothesised non-monetary work environment characteristics as common perks and two of three hypothesised non-monetary work environment characteristics as common irks. Importantly, they showed that perks, irks and monetary rewards are differentially related to the different facets of discretionary work effort. The convergent and discriminant validities of the perks and irks constructs as well as the time, intensity and direction facets of discretionary work effort were generally confirmed by the research findings. This research advances the literature in several ways: (i) it draws on the Economics and OB literatures to redefine and reconceptualise the discretionary work effort construct to provide greater definitional clarity and a more complete conceptualisation of this important construct; (ii) it builds on prior research to create a more comprehensive set of perks and irks for which measures are developed; (iii) it develops and empirically tests a new motivational model of discretionary work effort that enhances our understanding of the nature and functioning of perks and irks and advances our ability to predict discretionary work effort; and (iv) it fills a substantial gap in the literature on public sector work motivation by revealing what work behaviours public sector employees perceive as discretionary and what work environment characteristics are associated with their supply of discretionary work effort. Importantly, by disaggregating discretionary work effort this research provides greater detail on how perks, irks and monetary rewards are related to the different facets of discretionary work effort. Thus, from a theoretical perspective this research also demonstrates the conceptual meaningfulness and empirical utility of investigating the different facets of discretionary work effort separately. From a practical perspective, identifying work environment factors that are associated with discretionary work effort enhances managers' capacity to tap this valuable resource. This research indicates that to maximise the potential of their human resources, managers need to address perks, irks and monetary rewards. It suggests three different mechanisms through which managers might influence discretionary work effort and points to the importance of training for both managers and non-managers in cultivating positive interpersonal relationships.

Motivational misalignment on an iconic infrastructure project

Aligning the motivation of contractors and consultants to perform better than ‘business-as-usual’ (BAU) on a construction project is a complex undertaking and the costs of failure are high as misalignment can compromise project outcomes. Despite the potential benefits of effective alignment, there is still little information about optimally designing procurement approaches that promote motivation towards ‘above BAU’ goals. The paper contributes to this knowledge gap by examining the negative drivers of motivation in a major construction project that, despite a wide range of performance enhancing incentives, failed to exceed BAU performance. The paper provides a case study of an iconic infrastructure project undertaken in Australia between 2002 and 2004. It is shown that incentives provided to contractors and consultants to achieve above BAU performance can be compromised by a range of negative motivation drivers including: • inequitable contractual risk allocation; • late involvement of key stakeholders; • inconsistency between contract intentions and relationship intentions; • inadequate price negotiation; • inconsistency between the project performance goals and incentive goals; •unfair and inflexible incentive performance measurement processes. Future quantitative research is planned to determine the generalisability of these results.

Sacked! Workplace dismissals amongst youth employees

Limited academic attention has been afforded to young workers relative to their adult counterparts. This study addresses a phase of the employment relationship for young people that is very infrequently examined - during or around the time when the relationship ends. It examines the relative frequency of different forms of dismissal and the circumstances preceding the dismissals via a content analysis of 1259 cases of employee enquiries to a community advocacy organisation in Australia. Results indicate that dismissal was most commonly associated with bullying, harassment, and taking personal leave. Young men, compared to young women, were disproportionately likely to report allegations of misconduct as preceding dismissal, while females experienced higher rates of sexual harassment and discrimination. The research highlights the types and circumstances of dismissal across a range of employment contexts and reveals the complexities of youth employment relationships which may differ from those of the general workforce.

The current context of Queensland primary teacher engagement with professional learning through professional associations

Engaging Queensland primary teachers in professional associations can be a challenge, particularly for subject-specific associations. Professional associations are recognised providers of professional learning. By not being involved in professional associations primary teachers are missing potential quality professional learning opportunities that can impact the results of their students. The purpose of the research is twofold: Firstly, to provide a thorough understanding of the current context in order to assist professional associations who wish to change from their current level of primary teacher engagement; and secondly, to contribute to the literature in the area of professional learning for primary teachers within professional associations. Using a three part research design, interviews of primary teachers and focus groups of professional association participants and executives were conducted and themed to examine the current context of engagement. Force field analysis was used to provide the framework to identify the driving and restraining forces for primary teacher engagement in professional learning through professional associations. Communities of practice and professional learning communities were specifically examined as potential models for professional associations to consider. The outcome is a diagrammatic framework outlining the current context of primary teacher engagement, specifically the driving and restraining forces of primary teacher engagement with professional associations. This research also identifies considerations for professional associations wishing to change their level of primary teacher engagement. The results of this research show that there are key themes that provide maximum impact if wishing to increase engagement of primary teachers in professional associations. However the implications of this lies with professional associations and their alignment between intent and practice dedicated to this change.

“Prosuming” across cultures : youth creating digital media across borders

The Scratch Online Community is a space that enables young people to share their creative digital projects internationally with a level of ease that was impossible only a few years ago. Like all creative communities, Scratch is not just a space for sharing products, work, techniques and tips and tricks, but also a space for social interaction. Media literacy educators have unprecedented challenges and opportunities in digital environments like Scratch to harness the vast amount of knowledge in the community to enhance students’ learning. They also have challenges and opportunities in terms of implementing a form of digital media literacy education that is responsive to social and cultural representation. One role of digital media literacy is to help young people to challenge unfair and derogatory portrayals of people and to break down processes of social and cultural ‘othering’ so that all community members feel included and safe to express themselves. This article considers how online community spaces might draw on social interaction to enhance cross-cultural understandings and learning through dialogue and creative practice. The article uses statistics to indicate the amount of international interaction in the Scratch community. It then uses qualitative analysis of forum discussions and creative digital work to analyse the types of cross cultural interaction that occurs.

Chinese driver perceptions about speeding and traffic law enforcement

The World Health Organisation has highlighted the urgent need to address the escalating global public health crisis associated with road trauma. Low-income and middle-income countries bear the brunt of this, and rapid increases in private vehicle ownership in these nations present new challenges to authorities, citizens, and researchers alike. The role of human factors in the road safety equation is high. In China, human factors have been implicated in more than 90% of road crashes, with speeding identified as the primary cause (Wang, 2003). However, research investigating the factors that influence driving speeds in China is lacking (WHO, 2004). To help address this gap, we present qualitative findings from group interviews conducted with 35 Beijing car drivers in 2008. Some themes arising from data analysis showed strong similarities with findings from highly-motorised nations (e.g., UK, USA, and Australia) and include issues such as driver definitions of ‘speeding’ that appear to be aligned with legislative enforcement tolerances, factors relating to ease/difficulty of speed limit compliance, and the modifying influence of speed cameras. However, unique differences were evident, some of which, to our knowledge, are previously unreported in research literature. Themes included issues relating to an expressed lack of understanding about why speed limits are necessary and a perceived lack of transparency in traffic law enforcement and use of associated revenue. The perception of an unfair system seemed related to issues such as differential treatment of certain drivers and the large amount of individual discretion available to traffic police when administering sanctions. Additionally, a wide range of strategies to overtly avoid detection for speeding and/or the associated sanctions were reported. These strategies included the use of in-vehicle speed camera detectors, covering or removing vehicle licence number plates, and using personal networks of influential people to reduce or cancel a sanction. These findings have implications for traffic law, law enforcement, driver training, and public education in China. While not representative of all Beijing drivers, we believe that these research findings offer unique insights into driver behaviour in China.

Drawing the line : the legal status and treatment of the 17-year-old accused in Queensland

Seventeen year olds who come into contact with the police in Queensland are classified as adults and are not afforded the protections available under the Youth Justice Act 1992 (Qld) (YJA). As with any other adult, their offences are dealt with under a raft of legislative provisions including the Criminal Code 1889 (Qld) (the Code), the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) and the Penalties and Sentences Act 1992 (Qld) (PSA). This article argues that this situation is unfair and contravenes international human rights agreements which Australia has ratified, in particular the United Nations Convention on the Rights of the Child (CROC). Article 1 of that Convention defines a child as a person under the age of 18. The youth offences legislation in Queensland only applies to those who have not yet turned 17. This article examines the effects of this anomaly in Queensland, focusing in particular on the pre-adjudication treatment of ‘17 year old adults’.