Australian labour law: Difference between revisions

Add links
From Wikipedia, the free encyclopedia
Browse history interactively
← Previous editNext edit →
Content deleted Content added
VisualWikitext
Created a specific constitutional sectiin
Line 10: Line 10:
* ''[[White Paper on Full Employment in Australia]]''
* ''[[White Paper on Full Employment in Australia]]''


==Constitutional basis==
==Federal and constitutional competence==
Under the [[Constitution of Australia|Australian Constitution]], in the field of labour law, there is a dual structure, where some employment issues and relationships are governed by Commonwealth laws, and others are governed by state laws or the common law. It was originally thought that the Commonwealth's power to make laws about labour law was extremely narrow, and only to be that power provided by [[Section 51(xxxv) of the Constitution of Australia|conciliation and arbitration power of the Constitution]], which gives the Commonwealth power to make laws "in relation to [[conciliation]] and [[arbitration]] for the prevention and settlement of industrial disputes extending beyond the limits of any one state"..<ref name="s51(xxxv)">{{Cite Legislation AU|Cth|act|coaca430|Constitution|51}} "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State".</ref> Based on this constitutional power, the ''[[Commonwealth Conciliation and Arbitration Act 1904]]'' sought to introduce 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 [[award (Australian industrial relations)|awards]]. It also had the judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law.
The conciliation and arbitration power of the Commonwealth was originally based on [[Section 51(xxxv) of the Constitution of Australia]], which gives the Commonwealth power to make laws "in relation to [[conciliation]] and [[arbitration]] for the prevention and settlement of industrial disputes extending beyond the limits of any one state"..<ref name="s51(xxxv)">{{Cite Legislation AU|Cth|act|coaca430|Constitution|51}} "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State".</ref>

It was originally thought that the Commonwealth's power to make laws about labour law was extremely narrow, and that only to be that power provided by conciliation and arbitration power.

Since 1996, Australian industrial relations laws, such as WorkChoices, have been primarily based on the [[Corporations power|corporations power in section 51(xx) of the Constitution]].<ref name="s51(xx)">{{Cite Legislation AU|Cth|act|coaca430|Constitution|51}} "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth".</ref> This enact labour laws to be of much wider import, without the constraints imposed by the conciliation and arbitration power.<ref name="s51(xxxv)"/> The corporations power gives the federal parliament power to make laws with respect to "trading and financial corporations formed within the limits of the Commonwealth", as well as 'foreign' corporations.

==Federal scheme==
Under the [[Constitution of Australia|Australian Constitution]], in the field of labour law, there is a dual structure, where some employment issues and relationships are governed by Commonwealth laws, and others are governed by state laws or the common law. It was originally thought that the Commonwealth's power to make laws about labour law was extremely narrow, and only to be that power provided by conciliation and arbitration power. Based on this constitutional power, the ''[[Commonwealth Conciliation and Arbitration Act 1904]]'' sought to introduce 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 [[award (Australian industrial relations)|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 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.
Line 34: Line 41:
===WorkChoices===
===WorkChoices===
{{seealso|WorkChoices|Fair Work Act 2009}}
{{seealso|WorkChoices|Fair Work Act 2009}}
In 1996, the Howard Government passed the ''Workplace Relations Act 1996'' to replace the previous [[Australian Labor Party|Labor]] Government's ''Industrial Relations Reform Act 1993'', starting operation on 1 January 1997. In 1996, Victorian referred the bulk of its industrial powers to the Commonwealth.<ref>[http://www.australianreview.net/digest/2005/11/gahan.html The future of state industrial regulation: Can we learn from Victoria?]</ref> The 1996 Act was substantially amended by the ''Workplace Relations Amendment Act 2005'',<ref name="WC Act">{{Cite web |url=https://www.legislation.gov.au/Details/C2005A00153 |title=''Workplace Relations Amendment (Work Choices) Act'' 2005 |publisher=Commonwealth of Australia}}</ref> and came into effect on 27 March 2006,<ref name="WR Act">{{Cite web |url=https://www.legislation.gov.au/Details/C2006C00066 |title=''Workplace Relations Act'' 1996 |publisher=Commonwealth of Australia |date=27 March 2006}}</ref> which introduced WorkChoices to Australia. WorkChoices was primarily founded the [[Corporations power|corporations power in section 51(xx) of the Constitution]],<ref name="s51(xx)">{{Cite Legislation AU|Cth|act|coaca430|Constitution|51}} "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth".</ref> to enact labour laws of much wider import, without the constraints imposed by the conciliation and arbitration power.<ref name="s51(xxxv)"/> The corporations power gives the federal parliament power to make laws with respect to "trading and financial corporations formed within the limits of the Commonwealth", as well as 'foreign' corporations.
In 1996, the Howard Government passed the ''Workplace Relations Act 1996'' to replace the previous [[Australian Labor Party|Labor]] Government's ''Industrial Relations Reform Act 1993'', starting operation on 1 January 1997. In 1996, Victorian referred the bulk of its industrial powers to the Commonwealth.<ref>[http://www.australianreview.net/digest/2005/11/gahan.html The future of state industrial regulation: Can we learn from Victoria?]</ref> The 1996 Act was substantially amended by the ''Workplace Relations Amendment Act 2005'',<ref name="WC Act">{{Cite web |url=https://www.legislation.gov.au/Details/C2005A00153 |title=''Workplace Relations Amendment (Work Choices) Act'' 2005 |publisher=Commonwealth of Australia}}</ref> and came into effect on 27 March 2006,<ref name="WR Act">{{Cite web |url=https://www.legislation.gov.au/Details/C2006C00066 |title=''Workplace Relations Act'' 1996 |publisher=Commonwealth of Australia |date=27 March 2006}}</ref> which introduced WorkChoices to Australia.


By using the Corporations power the Howard Government was able to override state systems and unify industrial relations systems under a federal umbrella. In modern Australia, where the corporation is almost ubiquitous in business, that effectively meant the corporations power could be used to make laws about almost all employment relationships. As a consequence, WorkChoices had effective control of 85% of the employees in the Australian workforce.<ref>{{cite web |url=https://www.parliament.nsw.gov.au/lcdocs/inquiries/2047/Final%20Report%2023%20November%202006.pdf |title=Impact of the WorkChoices legislation |author=Legislative Council (NSW), Standing Committee on Social Issues |publisher=Parliament of NSW |year=2006 |ISBN=9781920788186}}</ref> The changes created a separate 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.
By using the corporations power the Howard Government was able to override state systems and unify industrial relations systems under a federal umbrella. In modern Australia, where the corporation is almost ubiquitous in business, that effectively meant the corporations power could be used to make laws about almost all employment relationships. As a consequence, WorkChoices had effective control of 85% of the employees in the Australian workforce.<ref>{{cite web |url=https://www.parliament.nsw.gov.au/lcdocs/inquiries/2047/Final%20Report%2023%20November%202006.pdf |title=Impact of the WorkChoices legislation |author=Legislative Council (NSW), Standing Committee on Social Issues |publisher=Parliament of NSW |year=2006 |ISBN=9781920788186}}</ref> The changes created a separate 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 WorkChoices legislation was challenged in the [[High Court of Australia]] in ''[[New South Wales v Commonwealth]]''.<ref>{{cite AustLII|HCA|52|2006|litigants=[[New South Wales v Commonwealth (2006)|NSW v Commonwealth]] (WorkChoices case) |parallelcite=(2006) 229 [[Commonwealth Law Reports|CLR]] 1}}, {{citation|url=http://www.hcourt.gov.au/assets/publications/judgment-summaries/2006/hca52-2006-11-14.pdf |title=judgment summary |publisher=[[High Court of Australia|High Court]]}}</ref> The Court decided by a majority of 5–2 in November 2006 that all the WorkChoices reforms were valid. This was a landmark decision in Australian constitutional law and in Australian federal-state relations, confirming that the width of the scope of the Commonwealth's power in relation to corporations.<ref>{{cite web|last= Blackshield|first= Tony |title= New South Wales v Commonwealth: Corporations and Connections |url=http://www.austlii.edu.au/au/journals/MelbULawRw/2007/42.html |ref=harv}} (2007) 31(3) [[Melbourne University Law Review]] 1135.</ref>
The constitutional validity of the WorkChoices legislation was challenged in the [[High Court of Australia]] in ''[[New South Wales v Commonwealth]]''.<ref>{{cite AustLII|HCA|52|2006|litigants=[[New South Wales v Commonwealth (2006)|NSW v Commonwealth]] (WorkChoices case) |parallelcite=(2006) 229 [[Commonwealth Law Reports|CLR]] 1}}, {{citation|url=http://www.hcourt.gov.au/assets/publications/judgment-summaries/2006/hca52-2006-11-14.pdf |title=judgment summary |publisher=[[High Court of Australia|High Court]]}}</ref> The Court decided by a majority of 5–2 in November 2006 that all the WorkChoices reforms were valid. This was a landmark decision in Australian constitutional law and in Australian federal-state relations, confirming that the width of the scope of the Commonwealth's power in relation to corporations.<ref>{{cite web|last= Blackshield|first= Tony |title= New South Wales v Commonwealth: Corporations and Connections |url=http://www.austlii.edu.au/au/journals/MelbULawRw/2007/42.html |ref=harv}} (2007) 31(3) [[Melbourne University Law Review]] 1135.</ref>

Revision as of 20:15, 18 February 2019

Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. Sharing a heritage with laws across the Commonwealth of Nations, UK labour law and standards set by the International Labour Organization, the Australian legislature and courts have a built a comprehensive charter of rights at work.

History

See also: History of labour law

Constitutional basis

The conciliation and arbitration power of the Commonwealth was originally based on Section 51(xxxv) of the Constitution of Australia, which gives the Commonwealth power to make laws "in relation to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state"..[2]

It was originally thought that the Commonwealth's power to make laws about labour law was extremely narrow, and that only to be that power provided by conciliation and arbitration power.

Since 1996, Australian industrial relations laws, such as WorkChoices, have been primarily based on the corporations power in section 51(xx) of the Constitution.[3] This enact labour laws to be of much wider import, without the constraints imposed by the conciliation and arbitration power.[2] The corporations power gives the federal parliament power to make laws with respect to "trading and financial corporations formed within the limits of the Commonwealth", as well as 'foreign' corporations.

Federal scheme

Under the Australian Constitution, in the field of labour law, there is a dual structure, where some employment issues and relationships are governed by Commonwealth laws, and others are governed by state laws or the common law. It was originally thought that the Commonwealth's power to make laws about labour law was extremely narrow, and only to be that power provided by conciliation and arbitration power. Based on this constitutional power, the Commonwealth Conciliation and Arbitration Act 1904 sought to introduce 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.

The Act originally applied to industrial disputes “extending beyond the limits of any one State, including disputes in relation to employment upon State railways, or to employment in industries carried on by or under thc control of the Commonwealth or a State or any public authority constitutcd under the Commonwealth or a State”. Andrew Fisher amended the 1904 Act to provide greater authority for the court president and to allow Commonwealth employees' industrial unions to register.[4]

The Commonwealth Court of Conciliation and Arbitration, created in 1904, was abolished in 1956 following the decision of the High Court in the Boilermakers' case. The High Court held that the Court, as a tribunal exercising the non-judicial power of arbitration, could not also exercise judicial power as a Chapter III Court. Following the decision, two new bodies were created to perform the function of the previous Court. The Commonwealth Industrial Court was created to exercise the Court's judicial powers.[5] In 1973, it was renamed the Australian Industrial Court,[6] and in 1977 its functions were transferred to the new Federal Court of Australia.[7]

The Commonwealth Conciliation and Arbitration Commission was also created in 1956 to carry out the non-judicial functions of the previous Court.[5] In 1973, it was renamed the Australian Conciliation and Arbitration Commission,[6] and replaced by the Australian Industrial Relations Commission in 1988.[a][9][10] The wage fixing function of the Australian Industrial Relations Commission was removed and given to the newly created Australian Fair Pay Commission in 2006 as part of the WorkChoices amendments. Both the Australian Industrial Relations Commission and the Australian Fair Pay Commission were dissolved in 2009,[b] to be succeeded by Fair Work Australia in 2010,[12] and renamed the Fair Work Commission in 2012.[13]

The 1904 Act was amended many times before being superseded by the Industrial Relations Act 1988 and repealed by the Industrial Relations (Consequential Provisions) Act 1988 with effect on 1 March 1989. The Industrial Relations Act 1988 was itself replaced by the Industrial Relations Reform Act 1993, which adopted a decentralized labour law model with support for collective bargaining, rather than the centralised wage-fixing model adopted since the 1970s and formalised under the Prices and Incomes Accord between the Hawke Labor government and the Australian Council of Trade Unions. The Howard Government’s Workplace Relations Act 1996 replaced the Industrial Relations Reform Act 1993.

WorkChoices

See also: WorkChoices and Fair Work Act 2009

In 1996, the Howard Government passed the Workplace Relations Act 1996 to replace the previous Labor Government's Industrial Relations Reform Act 1993, starting operation on 1 January 1997. In 1996, Victorian referred the bulk of its industrial powers to the Commonwealth.[14] The 1996 Act was substantially amended by the Workplace Relations Amendment Act 2005,[15] and came into effect on 27 March 2006,[16] which introduced WorkChoices to Australia.

By using the corporations power the Howard Government was able to override state systems and unify industrial relations systems under a federal umbrella. In modern Australia, where the corporation is almost ubiquitous in business, that effectively meant the corporations power could be used to make laws about almost all employment relationships. As a consequence, WorkChoices had effective control of 85% of the employees in the Australian workforce.[17] The changes created a separate 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 WorkChoices legislation was challenged in the High Court of Australia in New South Wales v Commonwealth.[18] The Court decided by a majority of 5–2 in November 2006 that all the WorkChoices reforms were valid. This was a landmark decision in Australian constitutional law and in Australian federal-state relations, confirming that the width of the scope of the Commonwealth's power in relation to corporations.[19]

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 did not have effect in each state and territory.[20]

The Rudd Labor Government repealed the 2005 Act by the Fair Work Act 2009 (FW Act),[12] which established Fair Work Australia (renamed Fair Work Commission in 2012),[13] which commenced operation on 1 July 2009.[21] The Victorian Government has referred most of its industrial relations powers to the Commonwealth, most recently via the Fair Work (Commonwealth Powers) Act 2009 (Vic), resulting in a majority of public sector workers in Victoria being covered by the FW Act.[22]

See also

Notes

  1. ^ Every member of the former commission was appointed to the new Australian Industrial Relations Commission, with the exception of Justice James Staples, thereby threatening the independence of Commission members.[8]
  2. ^ The two Vice Presidents of the Australian Industrial Relations Commission, Grahame Watson and Michael Lawler, were appointed to Fair Work Australia, but not as Vice Presidents and two new Vice Presidents were appointed, Adam Hatcher SC and Joe Catanzariti.[11]

References

  1. ^ Ex parte H.V. McKay (1907) 2 CAR 1.
  2. ^ a b Constitution (Cth) s 51 "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State".
  3. ^ Constitution (Cth) s 51 "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth".
  4. ^ Murphy, D. J. (1981). "Fisher, Andrew (1862–1928)". Australian Dictionary of Biography. Australian National University. Archived from the original on 25 May 2011. Retrieved 12 May 2011. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  5. ^ a b Conciliation and Arbitration Act 1956 (Cth).
  6. ^ a b Conciliation and Arbitration Act 1973 (Cth).
  7. ^ Federal Court of Australia Act 1976 (Cth).
  8. ^ Kirby, Michael. "Abolition of Courts and Non-reappointment of Judicial Officers" (PDF). (1995) 12 Australian Bar Review 181.
  9. ^ Industrial Relations Act 1988 (Cth).
  10. ^ Australia's industrial relations timeline
  11. ^ Patrick, Aaron (14 April 2014). "Fair Work Commission bench line-up not so fair, says business". afr.com. Retrieved 17 February 2019.
  12. ^ a b Fair Work Act 2009 (Cth).
  13. ^ a b Fair Work Amendment Act 2012 (Cth).
  14. ^ The future of state industrial regulation: Can we learn from Victoria?
  15. ^ "Workplace Relations Amendment (Work Choices) Act 2005". Commonwealth of Australia.
  16. ^ "Workplace Relations Act 1996". Commonwealth of Australia. 27 March 2006.
  17. ^ Legislative Council (NSW), Standing Committee on Social Issues (2006). "Impact of the WorkChoices legislation" (PDF). Parliament of NSW. ISBN 9781920788186.
  18. ^ NSW v Commonwealth (WorkChoices case) [2006] HCA 52, (2006) 229 CLR 1, judgment summary (PDF), High Court
  19. ^ Blackshield, Tony. "New South Wales v Commonwealth: Corporations and Connections". {{cite web}}: Invalid |ref=harv (help) (2007) 31(3) Melbourne University Law Review 1135.
  20. ^ "Australian Labour Law". Henry Carus & Associates. Retrieved 8 July 2013.
  21. ^ "History". fwc.gov.au. Fair Work Commission. Retrieved 8 November 2017.
  22. ^ Victorian response to Commonwealth Senate Committee on Education, Employment, and Workplace Relations inquiry

External links

Retrieved from "https://en.wikipedia.org/w/index.php?title=Australian_labour_law&oldid=883976449"