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Legal Studies 2 Unit Syllabus HSC Course

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					Legal Studies 2 Unit Syllabus HSC Course

RATIONALE
The aims of Legal Studies Syllabus include assisting students to appreciate that the law is closely
related to one‟s personal life and relates to everyone‟s rights and responsibilities in Australian Society
[Syllabus page 3]. Within the Australian legal system, certain groups of people or situations may fall
outside the protection of the law. This can be in part due to the way that the law has developed over
time, as in employment law, or because new situations arise that the legal system has not yet had to
address. The example of outworkers in the Australian clothing industry, most of whom are migrant
women, is one such situation and group of people which provides constant challenges to the evolution
of the Australian legal system.

The following notes and lesson ideas have been put together to aid Legal Studies 2 (HSC) classes
explore up-to-date examples of where the law and people‟s lives intersect. In particular, these notes
will address how the issues affecting home-based outwork intersect with the following areas of the
Legal Studies 2 Syllabus:
1. The Workplace and the Law
 the contract of employment
 safety and the workplace
 industrial relations
2. Law and Justice (Part 1): The individual and the State
 informal means of challenging state power
3. Law and Justice: Case studies
 NESB women who are home-based outworkers in the Australian clothing industry
 the law and migrants
 the law and women
 the law and other disadvantaged people

OUTCOMES
Knowledge and Understandings: 1.4, 3.4, 5.1, 6.1,7.1 & 7.2 [pages 28 and 29 of Syllabus]
Skills: 1.1, 2.2, 3.7 and 3.10 [page 30 of Syllabus]
Attitudes and Values: 2.1, 2.3, 3.1, 3.2, 4.1 & 4.2 [page 31 of Syllabus]

RECOMMENDED RESOURCES
See resources section of this kit: case studies, newspaper articles, websites, FairWear Action Kit and
FairWear submission to the Industrial Relations Commission.

1. The Workplace and the Law
 the contract of employment
Using case studies and newspaper clippings eg. “Book seen to threaten outworkers” as an example,
explore the distinction between contracts of service (employees) and contracts for services
(independent subcontractors) and the legal tests and other factors used by the courts to distinguish
between them.

Specific background information:
Outworkers are deemed to be employees in NSW by the NSW Industrial Relations Act & the NSW State
Clothing Trades Award. In South Australia, outworkers are deemed to be employees by the SA Industrial &
Employee Relations Act & the SA State Clothing Trades Award. Some of the legal rights and responsibilities
which therefore apply to them include:
 workers compensation
 annual or long service leave pay
 protection in cases of unfair dismissal
 protection in cases of redundancy
Watch the video “twenty pieces”. Discuss and summarise the legal dimensions of outworkers‟ lives
as presented in the video. Propose some reasons why the „employee‟ status of outworkers is seen by
some to be unclear.

Discuss the advantages and disadvantages of „freedom of contract‟. What examples were there in
“twenty pieces” regarding how freedom of contract can lead to problems for some disadvantaged
groups?

Specific background information:
Clothing outworkers who fall between the legal gaps: An example of an unfair outcome for one group of
workers and an argument against freedom of contract
For some independent contractors this situation and the freedom of contract without interference from legal
statutes is an advantage. For others, it can maintain disadvantage and unfairness that exists in any free market
economy. Clothing outworkers can unfortunately fall in the latter group.
Due to outworkers‟ common experience of low pay, dangerously long hours and difficulties getting paid for
work done it seems unlikely that the courts would ever find clothing outworkers to be independent contractors
as they possess so little bargaining power in the work relationship. However, this situation is often complicated
by the types of working arrangements that are set up between bosses and workers.
Often the employers (one of the many sub-contractors in the chain of production) will only give out work to
those workers who have their own sewing machines. Some outworkers have been told that they would not be
given any work until they registered their own business name. Moreover, it is often hard for outworkers to
argue that they were not free to perform work for someone else at the same time.
These factors can tend to make the courts view outworkers as self employed people who are therefore not
entitled to employment benefits such as workers compensation and annual leave. Given that most outworkers
receive approximately half the award rate of pay, it becomes increasingly difficult for them to then provide these
benefits for themselves and still maintain a meagre living for themselves and their family.
Nevertheless, the success of most clothing outworker cases before the industrial tribunals has been largely due
to the high degree of control which bosses exercise over how the work is to be performed by the outworkers and
over deadlines for completion.

 safety and the workplace
Read the fact pages, particularly the statistics from Mayhew and Quinlan regarding occupational
health and safety, case studies and newspaper articles eg. “Clothing Workers better off in factory” and
“ Cold and Lonely: the secret to looking elegant”.

Research the role of the government in addressing the poor working conditions of outworkers.
Check the Workcover Authority (NSW) Website for general OHS information.

Specific background information
While some home-based outworkers might not be clearly workers in a 'contract of service' or a 'contract for
services', their protection under various State Workers Compensation Acts is still uncertain. In some states,
such as NSW, outworkers are deemed to be employees for the purposes of workers compensation.

 Industrial Relations
Watch “twenty pieces”, particularly Eileen‟s case to claim money owed to her by her employer.
Research the role of the Textile, Clothing and Footwear (TCF) Union in advocating for outworkers.
See newspaper articles eg. “Union in fight for fashion outworkers” and “An end to sweatshops or
fewer jobs and dearer clothes?”. Discuss and compare the advantages and disadvantages of
enterprise agreements and industrial awards for clothing outworkers . Consider the role groups such
as FairWear have played in Industrial Relations processes. See FairWear‟s submission to the
Industrial Relations Commission regarding award simplification.

Specific background information
Award protections for outworkers: Just over ten years ago (late 1980‟s) the Federal industrial tribunal created
special award protections for outworkers in the clothing industry. These protections created a system for
tracking the flow of work from the retailers through the hands of the manufacturers and the middlemen all the
way down to the individual outworkers. These „outworker clauses‟ also entitled outworkers at home to receive
basically the same wages and conditions as factory workers. These protections were tightened up about five
years ago.
Each clothing outworker who wants to recover money from their boss must seek redress before the court on a
case by case basis. Legal tests and the other factors are addressed and argued over. Needless to say this is a
lengthy and costly process for a group of workers who are least able to protect themselves against exploitation.

2. Law and Justice (Part 1): The individual and the State
 informal means of challenging state power

Consider the activities of the FairWear Campaign as a real-life example of 'informal means of
challenging state power‟. See the history of the campaign in the FairWear Action kit and watch the
video “twenty pieces”.
Discuss:
 What advantages do informal means of challenge and review have over formal ones? What are
    the disadvantages?
 How far do alternative sources of power in society, such as large corporations and trade unions,
    balance the power of the state?


3. Law and Justice: Case studies
 a specific case study on NESB women who are home-based outworkers in the Australian clothing
    industry (video aid)
 examples to illustrate the case study of the law and migrants
 examples to illustrate the case study of the law and women
 examples to illustrate the case study of the law and other disadvantaged people

Use the case studies provided and the personal stories incorporated into several of the newspaper
articles eg. “Sweaters fail to reap what is sewn” and “Cold and Lonely on $5 an hour: the secret to
looking elegant.” Watch “twenty pieces” and discuss the issues raised by the outworkers, as migrants,
a disadvantaged group and mostly women.

EVALUATION [see evaluation ideas section of kit]

				
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