Australian labour law

Australian labour law has had a unique development that distinguishes it from other English-speaking jurisdictions.

In 1904 the Commonwealth Conciliation and Arbitration Act set up a system of "Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of any one State".

In 2005, the WorkChoices Act removed certain dismissal laws, removed the "no disadvantage test", and made it possible for workers to submit their certified agreements directly to Workplace Authority rather than going through the Australian Industrial Relations Commission. There were also clauses in WorkChoices that made it harder for workers to strike, made it easier for employers to force their employees onto individual workplace agreements rather than collective agreements, and banning clauses from workplace agreements which supported trade unions.

Constitutional basis

The power of the Commonwealth to make laws in relation to labour law is based on section 51(xxxv) of the Constitution which gives and limits Commonwealth power "in relation to Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of any one State".

The scope of the power that is not covered by Commonwealth laws resides with State power. The result is a dual structure of labour law, which depends on whether a situation falls within federal law or is subject to a State law, or it may be subject to the common law.

Since 1993 the Australian federal government has increasingly used the corporations power contained in s51(xx)^[1] to enact labour law legislation. This power is used by the federal parliament to make laws with respect to "trading and financial corporations formed within the limits of the Commonwealth", as well as 'foreign' corporations. The Coalition Government of John Howard announced plans in 2005 to further use this power to override State systems and unify the industrial relations system under the Federal umbrella. The proposed changes also included the introduction of an independent Australian Fair Pay Commission to set wages, and enhanced powers for the Office of the Employment Advocate and a corresponding lesser role for the Australian Industrial Relations Commission. The constitutional validity of the legislation was challenged in the High Court of Australia in New South Wales & Ors v Commonwealth.^[2] The Court decided by a majority of 5–2 in November 2006 that all of the WorkChoices reforms were valid, The case was also a significant constitutional law decision in the area of Federal-state relations.

A 2008 amendment to WorkChoices further expanded the federal government’s reach into employer-employee relations when it prohibited awards which were determined by reference to State or Territory boundaries or do not have effect in each State and Territory.^[3]

History

Based on the constitutional power, the Commonwealth Conciliation and Arbitration Act 1904 sought to introduced the rule of law in industrial relations in Australia and, besides other things, established the Commonwealth Court of Conciliation and Arbitration. Its functions were the hearing and the arbitration of industrial disputes, and to make awards. It also had the judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law.

In disputes involving a company in a single state either, a union or industrial organisation will rope them into a federal award by arguing that they are part of an industry in which a dispute extending beyond the limits of any one state exist. (This can be done by finding another company which did similar work and serving them with a log of claims concurrently or by virtue of a company's membership of a peak industry body.) Alternatively, if the company was not covered by a federal Award it would be covered by the various States' industrial relations systems, and disputes are conciliated or arbitrated by the state industrial relations commissions which would create an industry rule Award.

In 1996, the Howard Government passed the Workplace Relations Act 1996, which replaced the previous Labor Government's Industrial Relations Act 1988, starting operation on 1 January 1997. The Act was substantially amended by the Workplace Relations Amendment Act 2005, that came into effect on 27 March 2006, which brought in the WorkChoices changes to Australia's labour law. WorkChoices came into operation in 2006, it gave effective control of 85% of the Australian labour law system to the Federal Government.

The Rudd Labor Government repealed the 2005 Act by the Fair Work Act 2009,^[4] which established Fair Work Australia ^[5] which commenced operation on 1 July 2009.

Employment rights

Contract of employment

• Workplace Relations Act 1996, introduced individual employment contracts described as "Australian workplace agreements" in the legislation, as an alternative to collective employment contracts. New AWAs were prohibited by the Fair Work Act 2009.

Wage regulation

• History of the minimum wage
• Ex parte H.V. McKay (1907) 2 CAR 1, (popularly referred to as the Harvester case) which held that an employer was required by law to pay a decent, fair wage to his workers.
• R v Barger [1908] HCA 43; (1908) 6 CLR 41 (1908) 6 CLR 41

Collective bargaining

• Hancock Report (1985) centralised award system recommended
• Electrolux v AWU, on compulsory contributions to unions

Strikes

• Patrick Stevedores v MUA (1998) 195 CLR 1; [1998] HCA 30

Job security

• New South Wales v Commonwealth (2006)
• Fair Work Commission, industrial relations tribunal created by the Fair Work Act 2009
• White Paper on Full Employment in Australia (1945)

See also

• UK labour law
• Australian Industrial Relations Commission
• Australian Council of Trade Unions
• Australian Industrial Relations Law Reform 2005

Notes

External links

• History of employment law, Department of the Parliamentary Library

References