Australian labour law
Australian labour law has had a unique development that distinguishes it from other English-speaking jurisdictions.
In 1904 the Conciliation and Arbitration Act was passed mandating "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.
Contents
History
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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.
Since 1993 the Australian federal government has increasingly used the corporations power contained in s51 (20)[1] to enact labour law legislation. This power allows 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.
WorkChoices came into operation in 2006, it gave effective control of 85% of the Australian labour law system to the Federal Government. 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 (Kirby and Callinan JJ dissenting) in November 2006 that all of the 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]
Fair Work Australia (FWA) is the new government industrial relations institution created by the Federal ALP Government's Fair Work Act 2009.[4] It 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.
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Wage regulation
- History of the minimum wage
- Ex parte H.V. McKay (1907) 2 CAR 1
- 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
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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
See also
- UK labour law
- Australian Industrial Relations Commission
- Australian Council of Trade Unions
- Australian Industrial Relations Law Reform 2005
Notes
- ↑ Parliament of Australia: Senate: Constitution – Chapter 1 part V
- ↑ The full judgment is at Austlii New South Wales & Ors v Commonwealth
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External links
- History of employment law, Department of the Parliamentary Library
