fbpx
Wikipedia

Australian labour law

October 21, 2023

Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. Australian labour law (also known as industrial relations law) has a dual structure, where some employment issues and relationships are governed by Commonwealth (the Australian federal government) laws, and others are governed by state and territory laws or the common law. It shares 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 Edit

See also: History of labour law and History of the minimum wage

Commonwealth Court of Conciliation and Arbitration Edit

Main article: Commonwealth Court of Conciliation and Arbitration

The Commonwealth passed the Commonwealth Conciliation and Arbitration Act 1904, based on conciliation and arbitration power, which sought to introduce the rule of law in industrial relations in Australia and, besides other things, established the Commonwealth Court of Conciliation and Arbitration, whose functions included the hearing and arbitration of industrial disputes, and to make awards. It also had judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law. 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 the control of the Commonwealth or a State or any public authority constituted 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.[1]

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.

Commonwealth Conciliation and Arbitration Commission Edit

See also: Australian Industrial Relations Commission § Commonwealth Conciliation and Arbitration Commission

In 1956, the High Court in the Boilermakers' case held that the Commonwealth Court of Conciliation and Arbitration, as a tribunal exercising the non-judicial power of arbitration, could not also exercise judicial power as a Chapter III Court. The court was abolished in 1956 and was replaced by two new bodies. The Commonwealth Industrial Court was created to exercise the court's judicial powers.[2] In 1973, it was renamed the Australian Industrial Court,[3] and in 1977 its functions were transferred to the new Federal Court of Australia.[4]

The Commonwealth Conciliation and Arbitration Commission was also created in 1956 to carry out the non-judicial functions of the previous Court.[2] In 1973, it was renamed the Australian Conciliation and Arbitration Commission,[3] and replaced by the Australian Industrial Relations Commission in 1988.[5]Kirby, Michael. "Abolition of Courts and Non-reappointment of Judicial Officers" (PDF). (1995) 12 Australian Bar Review 181.</ref>}}[6][7] 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,[8] to be succeeded by Fair Work Australia in 2010,[9] and renamed the Fair Work Commission in 2012.[10]

Industrial Relations Act 1988 Edit

The 1904 Act was amended many times before being repealed by the Industrial Relations (Consequential Provisions) Act 1988 with effect on 1 March 1989, and superseded by the Industrial Relations Act 1988. The Industrial Relations Act 1988 was amended by the Industrial Relations Reform Act 1993,[11][12] which adopted a decentralised 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.[citation needed]

Workplace Relations Act 1996: WorkChoices Edit

Main article: WorkChoices

In 1996, the Howard government passed the Workplace Relations Act 1996, which replaced the Hawke government's Industrial Relations Act 1988,[12][11] with effect on 1 January 1997. The 1996 Act was substantially amended by the Workplace Relations Amendment (Work Choices) Act 2005, (aka Work Choices Act 2005)[13] which came into effect on 27 March 2006,[14] introducing WorkChoices.

The 2005 Act used the corporations power 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.[15] 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 in New South Wales v Commonwealth.[16] 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.[17]

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.[18]

Fair Work Act 2009 Edit

Main article: Fair Work Act 2009

The Rudd Labor government's Fair Work Act 2009 ("An Act relating to workplace relations, and for related purposes"[19]) (FW Act) repealed the Workplace Relations Amendment (Work Choices) Act 2005,[9] and established Fair Work Australia (renamed Fair Work Commission in 2012),[10] which commenced operation on 1 July 2009.[20] The Fair Work Act 2009 created Fair Work Australia, now the Fair Work Commission, and is still in force as of September 2020.[21]

The Fair Work (Registered Organisations) Act 2009 ("An Act relating to registered organisations, and for other purposes"[22]) superseded the Workplace Relations Act 1996 (the successor to Industrial Relations Act 1988), and is still in force as of September 2020.[11]

The Fair Work Commission's functions include the setting and varying industrial awards, minimum wage fixation, dispute resolution, the approval of enterprise agreements, and handling claims for unfair dismissal.[citation needed]

Scope of rights Edit

  • ZG Operations v Jamsek [2022] HCA 2, reversed by Fair Work Legislation Amendment (Closing Loopholes) Act 2023

Constitutional law Edit

The conciliation and arbitration power of the Commonwealth was originally based on Section 51(xxxv) of the Constitution of Australia, which states: "The [Commonwealth] 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".[23]

Given how narrow this power was, the Customs Tariff Act 1906,[24] and the Excise Tariff Act 1906 were passed,[25] to exempt manufacturers who paid "fair and reasonable" wages to their employees from these duties. The Commonwealth Court of Conciliation and Arbitration in the Harvester case (1907) was required to determine what were "fair and reasonable" wages, but the High Court of Australia in R v Barger (1908)[26] struck down the government's strategy of using the taxation power to enact labour laws as invalid. The Barger decision was made in the context of the then prevailing reserved State powers doctrine,[27] which was itself overturned in 1920 in the Engineers case.[28]

Since 2005, Australian industrial relations laws, such as WorkChoices, have been primarily based on the corporations power in section 51(xx) of the Constitution,[29] which enables labour laws to be of much wider reach, without the constraints imposed by the conciliation and arbitration power.[23] 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.

State law Edit

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.[30]

See also Edit

Notes Edit

  1. ^ Murphy, D. J. (1981). "Fisher, Andrew (1862–1928)". Australian Dictionary of Biography. National Centre of Biography, Australian National University. ISSN 1833-7538. Retrieved 16 December 2022.
  2. ^ a b Conciliation and Arbitration Act 1956 (Cth).
  3. ^ a b Conciliation and Arbitration Act 1973 (Cth).
  4. ^ Federal Court of Australia Act 1976 (Cth).
  5. ^ 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.
  6. ^ Industrial Relations Act 1988 (Cth).
  7. ^ Australia's industrial relations timeline
  8. ^ 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. Patrick, Aaron (14 April 2014). "Fair Work Commission bench line-up not so fair, says business". afr.com. Retrieved 17 February 2019.
  9. ^ a b Fair Work Act 2009 (Cth).
  10. ^ a b Fair Work Amendment Act 2012 (Cth).
  11. ^ a b c "Fair Work (Registered Organisations) Act 2009 [Series, from 1988 Act to latest version of Fair Work Act 2009.]". Australian Government. Federal Register of Legislation. Retrieved 11 September 2020.
  12. ^ a b "Workplace Relations Act 1996". Australian Government. Federal Register of Legislation. 20 January 1997. Retrieved 11 September 2020. The Workplace Relations Act 1996 as shown in this reprint comprises Act No. 86, 1988 [i.e. the Industrial Relations Act 1988] amended as indicated in the Tables below.
  13. ^ "Workplace Relations Amendment (Work Choices) Act 2005". Commonwealth of Australia.
  14. ^ "Workplace Relations Act 1996". Commonwealth of Australia. 27 March 2006.
  15. ^ Legislative Council (NSW), Standing Committee on Social Issues (2006). Impact of the WorkChoices legislation (PDF). Parliament of NSW. ISBN 9781920788186.
  16. ^ NSW v Commonwealth (WorkChoices case) [2006] HCA 52, (2006) 229 CLR 1, judgment summary (PDF), High Court
  17. ^ Blackshield, Tony (2007). "New South Wales v Commonwealth: Corporations and Connections". Melbourne University Law Review. (2007) 31(3) Melbourne University Law Review 1135.
  18. ^ "Australian Labour Law". Henry Carus & Associates. Retrieved 8 July 2013.
  19. ^ "Fair Work Act 2009". Australian Government. Federal Register of Legislation. 15 July 2009. Retrieved 11 September 2020.
  20. ^ "History". fwc.gov.au. Fair Work Commission. Retrieved 8 November 2017.
  21. ^ "Australian Government". Australian Government. Federal Register of Legislation. Retrieved 11 September 2020.
  22. ^ "Fair Work (Registered Organisations) Act 2009". Australian Government. Federal Register of Legislation. 31 July 2009. Retrieved 11 September 2020.
  23. ^ a b Constitution (Cth) s 51
  24. ^ "Customs Tariff Act 1906". Commonwealth of Australia..
  25. ^ "Excise Tariff Act 1906". Commonwealth of Australia..
  26. ^ R v Barger [1908] HCA 43, (1908) 6 CLR 41.
  27. ^ Zines, L (1981). The High Court and the Constitution. p. 41. ISBN 9781760020248.
  28. ^ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) [1920] HCA 54, (1920) 28 CLR 129.
  29. ^ 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".
  30. ^ Victorian response to Commonwealth Senate Committee on Education, Employment, and Workplace Relations inquiry

References Edit

  • J Riley Munton, Labour Law: An Introduction to the Law of Work (OUP 2021)
  • Gahan, Peter (14 November 2005). "The Future of State Industrial Regulation: Can We Learn From Victoria?". Australian Review of Public Affairs. Symposium: State Systems of Industrial Relations. (In 1996, Victoria referred the bulk of its industrial powers to the Commonwealth.)

October 21, 2023
australian, labour, concerns, commonwealth, state, common, rights, duties, workers, unions, employers, australia, also, known, industrial, relations, dual, structure, where, some, employment, issues, relationships, governed, commonwealth, australian, federal, . Australian labour law concerns Commonwealth state and common law on rights and duties of workers unions and employers in Australia Australian labour law also known as industrial relations law has a dual structure where some employment issues and relationships are governed by Commonwealth the Australian federal government laws and others are governed by state and territory laws or the common law It shares 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 Contents 1 History 1 1 Commonwealth Court of Conciliation and Arbitration 1 2 Commonwealth Conciliation and Arbitration Commission 1 3 Industrial Relations Act 1988 1 4 Workplace Relations Act 1996 WorkChoices 1 5 Fair Work Act 2009 2 Scope of rights 3 Constitutional law 4 State law 5 See also 6 Notes 7 ReferencesHistory EditSee also History of labour law and History of the minimum wage Commonwealth Court of Conciliation and Arbitration Edit Main article Commonwealth Court of Conciliation and Arbitration The Commonwealth passed the Commonwealth Conciliation and Arbitration Act 1904 based on conciliation and arbitration power which sought to introduce the rule of law in industrial relations in Australia and besides other things established the Commonwealth Court of Conciliation and Arbitration whose functions included the hearing and arbitration of industrial disputes and to make awards It also had judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law 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 the control of the Commonwealth or a State or any public authority constituted 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 1 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 Commonwealth Conciliation and Arbitration Commission Edit See also Australian Industrial Relations Commission Commonwealth Conciliation and Arbitration Commission In 1956 the High Court in the Boilermakers case held that the Commonwealth Court of Conciliation and Arbitration as a tribunal exercising the non judicial power of arbitration could not also exercise judicial power as a Chapter III Court The court was abolished in 1956 and was replaced by two new bodies The Commonwealth Industrial Court was created to exercise the court s judicial powers 2 In 1973 it was renamed the Australian Industrial Court 3 and in 1977 its functions were transferred to the new Federal Court of Australia 4 The Commonwealth Conciliation and Arbitration Commission was also created in 1956 to carry out the non judicial functions of the previous Court 2 In 1973 it was renamed the Australian Conciliation and Arbitration Commission 3 and replaced by the Australian Industrial Relations Commission in 1988 5 Kirby Michael Abolition of Courts and Non reappointment of Judicial Officers PDF 1995 12 Australian Bar Review 181 lt ref gt 6 7 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 8 to be succeeded by Fair Work Australia in 2010 9 and renamed the Fair Work Commission in 2012 10 Industrial Relations Act 1988 Edit The 1904 Act was amended many times before being repealed by the Industrial Relations Consequential Provisions Act 1988 with effect on 1 March 1989 and superseded by the Industrial Relations Act 1988 The Industrial Relations Act 1988 was amended by the Industrial Relations Reform Act 1993 11 12 which adopted a decentralised 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 citation needed Workplace Relations Act 1996 WorkChoices Edit Main article WorkChoices In 1996 the Howard government passed the Workplace Relations Act 1996 which replaced the Hawke government s Industrial Relations Act 1988 12 11 with effect on 1 January 1997 The 1996 Act was substantially amended by the Workplace Relations Amendment Work Choices Act 2005 aka Work Choices Act 2005 13 which came into effect on 27 March 2006 14 introducing WorkChoices The 2005 Act used the corporations power 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 15 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 in New South Wales v Commonwealth 16 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 17 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 18 Fair Work Act 2009 Edit Main article Fair Work Act 2009 The Rudd Labor government s Fair Work Act 2009 An Act relating to workplace relations and for related purposes 19 FW Act repealed the Workplace Relations Amendment Work Choices Act 2005 9 and established Fair Work Australia renamed Fair Work Commission in 2012 10 which commenced operation on 1 July 2009 20 The Fair Work Act 2009 created Fair Work Australia now the Fair Work Commission and is still in force as of September 2020 update 21 The Fair Work Registered Organisations Act 2009 An Act relating to registered organisations and for other purposes 22 superseded the Workplace Relations Act 1996 the successor to Industrial Relations Act 1988 and is still in force as of September 2020 update 11 The Fair Work Commission s functions include the setting and varying industrial awards minimum wage fixation dispute resolution the approval of enterprise agreements and handling claims for unfair dismissal citation needed Scope of rights EditZG Operations v Jamsek 2022 HCA 2 reversed by Fair Work Legislation Amendment Closing Loopholes Act 2023Constitutional law EditThe conciliation and arbitration power of the Commonwealth was originally based on Section 51 xxxv of the Constitution of Australia which states The Commonwealth 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 23 Given how narrow this power was the Customs Tariff Act 1906 24 and the Excise Tariff Act 1906 were passed 25 to exempt manufacturers who paid fair and reasonable wages to their employees from these duties The Commonwealth Court of Conciliation and Arbitration in the Harvester case 1907 was required to determine what were fair and reasonable wages but the High Court of Australia in R v Barger 1908 26 struck down the government s strategy of using the taxation power to enact labour laws as invalid The Barger decision was made in the context of the then prevailing reserved State powers doctrine 27 which was itself overturned in 1920 in the Engineers case 28 Since 2005 Australian industrial relations laws such as WorkChoices have been primarily based on the corporations power in section 51 xx of the Constitution 29 which enables labour laws to be of much wider reach without the constraints imposed by the conciliation and arbitration power 23 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 State law EditThe 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 30 See also EditElectrolux v AWU 2004 Hancock Report 1985 Patrick Stevedores v MUA 1998 White Paper on Full Employment in Australia 1945 defined economic policy for 30 yearsNotes Edit Murphy D J 1981 Fisher Andrew 1862 1928 Australian Dictionary of Biography National Centre of Biography Australian National University ISSN 1833 7538 Retrieved 16 December 2022 a b Conciliation and Arbitration Act 1956 Cth a b Conciliation and Arbitration Act 1973 Cth Federal Court of Australia Act 1976 Cth 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 Industrial Relations Act 1988 Cth Australia s industrial relations timeline 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 Patrick Aaron 14 April 2014 Fair Work Commission bench line up not so fair says business afr com Retrieved 17 February 2019 a b Fair Work Act 2009 Cth a b Fair Work Amendment Act 2012 Cth a b c Fair Work Registered Organisations Act 2009 Series from 1988 Act to latest version of Fair Work Act 2009 Australian Government Federal Register of Legislation Retrieved 11 September 2020 a b Workplace Relations Act 1996 Australian Government Federal Register of Legislation 20 January 1997 Retrieved 11 September 2020 The Workplace Relations Act 1996 as shown in this reprint comprises Act No 86 1988 i e the Industrial Relations Act 1988 amended as indicated in the Tables below Workplace Relations Amendment Work Choices Act 2005 Commonwealth of Australia Workplace Relations Act 1996 Commonwealth of Australia 27 March 2006 Legislative Council NSW Standing Committee on Social Issues 2006 Impact of the WorkChoices legislation PDF Parliament of NSW ISBN 9781920788186 NSW v Commonwealth WorkChoices case 2006 HCA 52 2006 229 CLR 1 judgment summary PDF High Court Blackshield Tony 2007 New South Wales v Commonwealth Corporations and Connections Melbourne University Law Review 2007 31 3 Melbourne University Law Review 1135 Australian Labour Law Henry Carus amp Associates Retrieved 8 July 2013 Fair Work Act 2009 Australian Government Federal Register of Legislation 15 July 2009 Retrieved 11 September 2020 History fwc gov au Fair Work Commission Retrieved 8 November 2017 Australian Government Australian Government Federal Register of Legislation Retrieved 11 September 2020 Fair Work Registered Organisations Act 2009 Australian Government Federal Register of Legislation 31 July 2009 Retrieved 11 September 2020 a b Constitution Cth s 51 Customs Tariff Act 1906 Commonwealth of Australia Excise Tariff Act 1906 Commonwealth of Australia R v Barger 1908 HCA 43 1908 6 CLR 41 Zines L 1981 The High Court and the Constitution p 41 ISBN 9781760020248 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd Engineers case 1920 HCA 54 1920 28 CLR 129 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 Victorian response to Commonwealth Senate Committee on Education Employment and Workplace Relations inquiryReferences EditJ Riley Munton Labour Law An Introduction to the Law of Work OUP 2021 Gahan Peter 14 November 2005 The Future of State Industrial Regulation Can We Learn From Victoria Australian Review of Public Affairs Symposium State Systems of Industrial Relations In 1996 Victoria referred the bulk of its industrial powers to the Commonwealth Retrieved from https en wikipedia org w index php title Australian labour law amp oldid 1179702395, wikipedia, wiki, book, books, library,

article

, read, download, free, free download, mp3, video, mp4, 3gp, jpg, jpeg, gif, png, picture, music, song, movie, book, game, games.