Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. The main source of law is the Commonwealth (the Australian federal government) Fair Work Act 2009, while state and territory laws can add to protection, and judge-made common law provides a default set of rights.

Australian labour law 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

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.

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][6][7][8] 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,[9] to be succeeded by Fair Work Australia in 2010,[10] and renamed the Fair Work Commission in 2012.[11]

Industrial Relations Act 1988

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,[12][13] 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.

Workplace Relations Act 1996
WorkChoices

In 1996, the Howard government passed the Workplace Relations Act 1996, which replaced the Hawke government's Industrial Relations Act 1988,[13][12] 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)[14] which came into effect on 27 March 2006,[15] 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.[16] 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.[17] 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.[18]

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.[19]

Fair Work Act 2009

The Rudd Labor government's Fair Work Act 2009 ("An Act relating to workplace relations, and for related purposes"[20]) (FW Act) repealed the Workplace Relations Amendment (Work Choices) Act 2005,[10] and established Fair Work Australia (renamed Fair Work Commission in 2012),[11] which commenced operation on 1 July 2009.[21] The Fair Work Act 2009 created Fair Work Australia, now the Fair Work Commission, and is still in force as of September 2020.[22]

The Fair Work (Registered Organisations) Act 2009 ("An Act relating to registered organisations, and for other purposes"[23]) superseded the Workplace Relations Act 1996 (the successor to Industrial Relations Act 1988), and is still in force as of September 2020.[12]

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.

Contract of employment and minimum rights

Scope of rights

The scope of who has rights under the Fair Work Act 2009, including for award wages, paid holidays, collective bargaining, and job security, begins with test for who is an employee, as opposed to an "independent contractor". Historically different courts and judges have had conflicting views, with some preferring to allow employers to define who is an employee (and unilaterally take large groups of workers outside the scope of rights), while others stressing the importance of looking at the reality of the relationship: that law, not contract, defines who is protected.

  • Marshall v Whittaker's Building Supply Co [1963] HCA 26 Windeyer J, the "distinction between a servant and an independent contractor ... is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own."
  • Porter, Re Transport Workers Union of Australia (1989) 34 IR 179 at 184 per Gray J, "The parties cannot create something which has every feature of a rooster, but call it a

duck and insist that everyone else recognise it as a duck"

  • Hollis v Vabu Pty Ltd [2001] HCA 44, distinction between an employee and independent contractor primarily governed by common law
  • ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
  • Fair Work Legislation Amendment (Closing Loopholes) Act 2023 introducing Fair Work Act 2009 s 15AA(1) who is an employee or employer "is to be determined by 9 ascertaining the real substance, practical reality and true nature of 10 the relationship between the individual and the person" and (2) "regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice."
  • FWA 2009 s 357, employers liable for misrepresenting false employment status and sham self-employment, unless they show they reasonably believed that the person was an independent contractor
  • Employee-like workers to be introduced as a new concept, as having low bargaining power, receiving pay below rate of comparable employees, and having a low degree of authority over work performance. With road transport contractors they will be able to apply to the Fair Work Commission for “Minimum Standard Orders” or "Guideline", and make collective agreements directly with the digital labour platform. The orders and guidelines can include payment terms, deductions, working time, record-keeping, insurance, consultation, representation, delegates’ rights, cost recovery. Employee-like workers will also be able to apply to the Fair Work Commission for unfair deactivations, unfair terminations, and unfair contracts.

Casual and atypical workers

  • FWA 2009 s 15A, definition of casual employee according to the contract, and in light of reality that both sides do not want ongoing commitment
  • FWA 2009 casuals are mostly protected after six months’ employment by unfair dismissal protection
  • WRA 1996 s. 526, enabled awards to provide for equal treatment for part-time workers. However part-time workers are often casual.
  • Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 Division 4A of Part 2-2, casual workers must get an offer of a permanent contract offer after 12 months unless there are reasonable grounds to not make the offer
  • FWA 2009 s 306C-G, from the Closing Loopholes Bill, a right to equal treatment for employees contracted through a labour hire firm compared to directly hired employees
  • IRA 2016 s 23(2) requires overtime working to be "reasonable"

Contracts of employment

  • Relationship of unequal bargaining power
  • No implied term of good faith, or mutual trust and confidence
  • List of implied obligations of employee and employer

Awards and fair wages

  • Fair Work Act 2009, system of modern awards, underpinning enterprise agreements

Working time

  • IRA 2016, annual paid leave is 4 weeks for a non-shift worker
  • FWA 2009 set an 8-day norm for public holidays
  • Re Metal Industry Award 1971 (1981) 1 IR 169, Court of Conciliation and Arbitration approved a 48 hour week (a 40 hour week was approved in 1948)
  • IRA 2016 s 123, 38 hour week is standard
  • In Work Choices overtime premia were removed from the standard award template, and now only exist in specific enterprise agreements

Union rights and bargaining

Trade unions

  • Organisation, elections
  • Workplace delegates' rights under the Closing Loopholes Bill will include (1) the right to communicate with current or prospective union members (2) reasonable access to the workplace to undertake their delegate duties (3) paid time during normal working hours for delegate training.
  • WRA 1996 freedom of association provisions made the closed shop unenforceable

Worker directors

  • ABC
  • Australia Post
  • University of Melbourne, etc

Collective bargaining

  • FWA 2009, duty to bargain in good faith (removed by WorkChoices, after the IRRA 1993 first referred to the duty to bargain in good faith
  • Extension of collective agreements, in effect, through the award system

Collective action

  • FWA 2009, s. 407 defines protected industrial action in relation to a given enterprise agreement.
  • FWA 2009 s. 413(3) a duty to negotiate before taking strike action
  • FWA 2009 Article 412(6) prohibits industrial action before the expiry of an enterprise agreement.
  • FWA 2009, s 409, notice period before strike action. Also WRA 1996 s 170 MO
  • IRRA 1993 limited right to strike for protected industrial action
  • WRA 1996 s 4 the AIRC’s jurisdiction was limited by the definition of industrial dispute, or matters about the relationship between employers and employees
  • Trade Practices Act 1974, as amended, makes secondary action unlawful - also repressed at common law
  • FWA 2009 limits the ability of employers to do lockouts unless they are defensive, in response to employee claims for a new enterprise agreement.

Job security

  • Termination Change and Redundancy Case (1984) established a right of 2 weeks notice before dismissal for workers with between 2 and 3 years’ service, and 3 weeks for those with between 3 and 5 years. Also the right to 7 weeks' redundancy pay for workers with 3 years' service

Fair dismissal

  • FWA 2009 s 383, a 6 month qualifying period is required to claim unfair dismissal (after Work Choices Act 2005 s 643(6))
  • Workplace Relations Act 1996 required just one valid reason for dismissal, reducing protection from Industrial Relations Reform Act 1993 which set out a list of valid reasons for dismissal.
  • FWA 2009 s. 390 the Fair Work Commission can order reinstatement or compensation (updating WRA 1996 s 170CH which allowed courts to reinstate but compensation was normal remedy)
  • FWA 2009 s 530, obligation to inform state employment service if 15 or more people are dismissed for economic reasons

Redundancy

  • IRA 2016 s 126, right to redundancy pay
  • Australian Industrial Relations Commission could intervene in cases where more than 15 employees were made redundant.
  • FWA 2009 imposes a more extensive information and consultation régime

Full employment

  • Reserve Bank of Australia
  • NAIRU reporting

Equality

  • Anti-discrimination rules in Fair Work Act 2009
  • State anti-discrimination laws

Constitutional and state laws

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".[24]

Given how narrow this power was, the Customs Tariff Act 1906,[25] and the Excise Tariff Act 1906 were passed,[26] 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)[27] 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,[28] which was itself overturned in 1920 in the Engineers case.[29]

Since 2005, Australian industrial relations laws, such as WorkChoices, have been primarily based on the corporations power in section 51(xx) of the Constitution,[30] which enables labour laws to be of much wider reach, without the constraints imposed by the conciliation and arbitration power.[24] 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

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.[31]

See also

Notes

  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. 1 2 Conciliation and Arbitration Act 1956 (Cth).
  3. 1 2 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. ↑ Kirby, Michael. "Abolition of Courts and Non-reappointment of Judicial Officers" (PDF). (1995) 12 Australian Bar Review 181.
  7. ↑ Industrial Relations Act 1988 (Cth).
  8. ↑ Australia's industrial relations timeline
  9. ↑ 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.
  10. 1 2 Fair Work Act 2009 (Cth).
  11. 1 2 Fair Work Amendment Act 2012 (Cth).
  12. 1 2 3 "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.
  13. 1 2 "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.
  14. ↑ "Workplace Relations Amendment (Work Choices) Act 2005". Commonwealth of Australia.
  15. ↑ "Workplace Relations Act 1996". Commonwealth of Australia. 27 March 2006.
  16. ↑ Legislative Council (NSW), Standing Committee on Social Issues (2006). Impact of the WorkChoices legislation (PDF). Parliament of NSW. ISBN 9781920788186.
  17. ↑ NSW v Commonwealth (WorkChoices case) [2006] HCA 52, (2006) 229 CLR 1, judgment summary (PDF), High Court
  18. ↑ Blackshield, Tony (2007). "New South Wales v Commonwealth: Corporations and Connections". Melbourne University Law Review. (2007) 31(3) Melbourne University Law Review 1135.
  19. ↑ "Australian Labour Law". Henry Carus & Associates. Retrieved 8 July 2013.
  20. ↑ "Fair Work Act 2009". Australian Government. Federal Register of Legislation. 15 July 2009. Retrieved 11 September 2020.
  21. ↑ "History". fwc.gov.au. Fair Work Commission. Retrieved 8 November 2017.
  22. ↑ "Australian Government". Australian Government. Federal Register of Legislation. Retrieved 11 September 2020.
  23. ↑ "Fair Work (Registered Organisations) Act 2009". Australian Government. Federal Register of Legislation. 31 July 2009. Retrieved 11 September 2020.
  24. 1 2 Constitution (Cth) s 51
  25. ↑ "Customs Tariff Act 1906". Commonwealth of Australia..
  26. ↑ "Excise Tariff Act 1906". Commonwealth of Australia..
  27. ↑ R v Barger [1908] HCA 43, (1908) 6 CLR 41.
  28. ↑ Zines, L (1981). The High Court and the Constitution. p. 41. ISBN 9781760020248.
  29. ↑ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) [1920] HCA 54, (1920) 28 CLR 129.
  30. ↑ 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".
  31. ↑ Victorian response to Commonwealth Senate Committee on Education, Employment, and Workplace Relations inquiry

References

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