PART A: Essay question
Answer any one (1) question.
1.
Discuss
the following statement, using examples:
The Employment Act [Cap 92] of Fiji is an outdated and awkward piece
of legislation that is not followed in practice and does not provide adequate
protection to employees. It should therefore be replaced.
2.
There
are a number of different models used in the Pacific to minimise unsafe working
environments and ensure that adequate compensation is paid in the event of a
workplace injury.
For each of the two
issues above, which approach do you think is most suitable for your country and
why.
Answer this question in
relation to the jurisdiction of your choice.
3.
The
Group of 77 is a ‘third world’ coalition within the UN. Its Pacific island
country members include Fiji, Tonga, Vanuatu, Samoa, Solomon Islands, Marshall Islands and FSM. In a statement in 1997 it
was said:
[The
Group] must take certain measures … in … resisting pressures for new
protectionist measures such as the linkage of labour standards … with trade.
What is meant by
‘protectionist measures’ in relation to labour standards and why is this an
issue of concern for ‘third world’ countries? Do you think that this concern is
valid?
4.
What
difficulties stand in the way of the successful operation of trade unions in
the Pacific?
You can either discuss this generally, or in respect of a
particular country from within the USP region.
PART B: Problem Questions
Answer any three (3) questions.
5.
John
works as a driver with Pacific Paradise Tours. Whenever Pacific Paradise Tours
has a round island tour booked it will phone John and use his bus. Pacific
Paradise Tours provides a tour guide, food et cetera. All John does is drive.
John must be at his house from 7. 30 – 8.30 every morning, and from 4.30 – 6.30
every afternoon so that that Pacific Paradise Tours can easily contact him to tell him whether he
has any tours to drive. John is unable to take any other regular job, as he
must always have his days free in case he needs to drive a tour.
John must always keep
the bus neat and tidy for tours. He must wear a company uniform at all times
when he is driving the bus as Pacific Paradise Tours say that it is good
advertising for them.
John pays for insurance
and road tax on the bus. He also pays for all mechanical maintenance. Pacific
Paradise Tours paid for the company logo to be painted on bus. It also pays for
maintenance of the interior of the bus, so that it is always neat for tourists.
John gets paid a flat
rate of $20 per week for always being available. He gets paid an additional $10
per tour he drives. Pacific Paradise Tours also pays John for the petrol he
uses during the tours.
When John is not
providing transport for tours he provides a bus service taking passengers from
the side of the road for a set price. The only tour driving work he does is
through Pacific Paradise Tours.
John does not hold any
kind of business license. There have recently been complaints made by the Tour
Operators Association to the National Tourism Office about the number of
unlicensed tour operators. There have also been complaints made by the Taxi
Association about unlicensed taxi and bus drivers.
Is John an employee or
an independent contractor?
Outline the arguments
that you would make to support John being an employee and the arguments that
you would make to support John being an independent contractor. Then write a
conclusion clearly explaining which position you prefer and why.
6.
Peter lives in the common law
jurisdiction of Pacifica. Other Pacific judgments, and the common law of England, New Zealand and Australia, are persuasive authorities, but are not binding.
On July
1st 2003 Peter signed a contract with GPS Computers. The contract said:
a.
This
contract is for a fixed term of 1 year.
b.
The
employee is employed as a computer technician.
c.
The
employee is to be paid $1,000 per month, on the last working day of each month.
As soon as Peter was
employed it became apparent that he had no experience working with Apple
computers and was making lots of mistakes. In order to get around this problem
his boss now only assigns him to work on PC computers.
Last Friday night Peter
crashed his car on the way home from a party. No one was injured, but his
driver’s license is being revoked because of the incident. The daughter of
Peter’s boss, who is 15, was in the car. Peter had taken her to the party with
him.
Peter’s boss has come
to your for advice on how he can terminate Peter. The boss is furious at Peter
for taking his young daughter to a party. He says that he will never be able to
trust Peter again. The boss also says that he is sick of having to always
adjust the workload so that Peter does not work on Apple computers.
Can GPS Computers
terminate Peter by paying wages in lieu of notice? Why/why not? If it can, how
much will GPS Computers have to pay?
Can GPS Computers
summarily dismiss Peter for misconduct? If so, what procedure will it have to
follow?
What other option(s)
might GPS Computers have if it wants to stop Peter working for it immediately?
7.
Base your answer to the following
question in the jurisdiction of your choice. Please state which jurisdiction
you use at the beginning of your answer.
Sam was terminated because his employer thought that he was
responsible for a theft of money from his workplace. It has since been
discovered that another employee committed the theft. However, although Sam would
like to return to his old job, he has not been given his job back.
At the time of termination Sam had been working for 15
years and 3 months with the same employer. He was a customer services manager
at the bank he worked at. This is a position that requires considerable experience.
Sam was 48 at the time of termination. There are no other banks in the town
that Sam is currently living in.
He was on an
unwritten open ended contract and was being paid every fortnight. He had taken
5 days annual leave per year. On the day he left Sam had completed three days
work since his previous payday. He has never been paid for this work. Sam used
to work for 8 hours per day, excluding lunch breaks, 5 days per week. His
employer had brought Sam to his place of work from a village 100 kilometres
away. As part of the employment package the employer provided Sam with housing.
The housing had a market value of $/Tala $500 per month (50,000 vatu per month
if you use Vanuatu as your jurisdiction).
Sam's rate of pay at the time of termination was $/Tala
$1,000 per fortnight (100,000 vatu per fortnight if you use Vanuatu as your jurisdiction). You can
assume that these rates of pay are above the minimum wage requirements.
Please advise Sam as to any damages he can claim and any
other remedies he can seek.
8.
Base your answer to the following
question in the jurisdiction of your choice. Please state which jurisdiction
you use at the beginning of your answer.
Jenny works as a shop assistant in a 24 hour video store. Parts of her contract state
the following:
3(i) The employee shall work 50 hours per week.
3(ii) The actual hours of work are shift work and
shall vary each week. Each shift shall be 10 hours long and will either run
from 8 am – 8 pm or from 8 pm – 6 am.
3(iii) The employee will not be required to work
adjoining shifts, but may be required to work on Sundays and public holidays.
4(i) The employee shall be paid a sum of $2 (200
vatu if you are in Vanuatu) per hour.
4(ii) Wages shall be payable fortnightly.
4(iii) Half of the wage may be paid by way of credit
at the video store.
5(i) The employee shall be entitled to 20 days
paid annual leave per year.
5(ii) The employer shall be entitled to 10 days
paid sick leave per year
(a) provided that no sick leave
will be paid unless a medical certificate is presented to the employer.
6(i) Either party may terminate the contract by
giving 2 weeks notice.
7 If the employee resigns she shall be
prohibited from working in any other video store in the same city for a period
of 2 years.
Go through clause by clause, identify whether it is legal,
and suggest changes (if any are needed) that would make the clause legal.
Your layout should be as follows:
3(i)
This is/is not legal because…
It should be redrafted as follows:
9.
Base your answer to the following
question in the jurisdiction of your choice. Please state which jurisdiction
you use at the beginning of your answer.
Bob was offered a job
as head chef with the Colonial Hotel. The job required him to work a lunch
shift and a night shift 5 days per week. He was to be paid $2,000/200,000 vatu
per month, and given free accommodation. There was no written contract, and
nothing was discussed about the length of contract. It sounded like a good
opportunity so Bob left a secure job to go and work for the Colonial Hotel.
After 4 months the
Colonial Hotel got into financial difficulties. In order to save money the
manager told Bob that, from now on he would be employed as a barman during the
lunch shifts, and a chef during the night shifts. Because of this change in
duties his pay would be reduced to $1,500/150,000 vatu per month.
Bob went to see the
owner of the Colonial Hotel to complain, but the owner would not do anything.
Bob therefore left without giving notice. As a result of this the Colonial
Hotel had to hire a temporary chef at a cost of $2,500/250,000 vatu per month,
just to do the night shift meals.
What remedies can the wronged party seek?
