User:SilasM/Australian labour law

Australian labour law regulates the performance of paid productive work in Australia. It can be distinguished from labour law in other countries by the long-standing prominence of compulsory arbitration, as opposed to common law contract, as a means of determining working conditions. It can be distinguished from many other branches of the law in Australia by its capacity to attract high levels of political controversy.

Constitutional Framework

Legislative responsibility for regulating labour relations is divided between the Commonwealth Parliament and the various State Parliaments. While the State Parliaments each have a plenary power to legislate for such matters, the Commonwealth Parliament has power over only those matters specficially authorised by provisions of the Commonwealth Constitution. Provisions of the Constitution which have been relied upon to support industrial legislation include the Industrial Disputes Power, the Corporations Power, the External Affairs Power, the Defence Power and the Trade and Commerce power.

The Industrial Disputes Power

Section 51(xxxv) of the Constitution provides that

The Corporations Power

Constitution, s 51(xx) 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:

Mainly question deal with whether the Trade Practices Act applies to a situation.

A “trading corporatopn” is defined by rfernce to is actual (Adamson’s case) or intended (Fencott) activities. They must be substantial or significant (Adamsons case) but need not form a predominant part of their activities (State Superannuation Board).

The External Affairs Power

Section 51(xxix) enables the Commonwealth to pass legislation implementing Australia’s international treaty obligations. Tasmanian Dams (1983) Constitution, s 51(xxix) 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:

(xxix.) External Affairs:

“External” means outside Australia, no implication beyond location. “Affairs” wide meaning, relationship, matters or things. Relationships : with or between foreign states and foreign or international organisations. Matters or things: which are territorially external to Australia, regardless of whether they may be the subject matter of international treaties, rights or obligations.

The phrase “external affairs” extends to enable the Federal Parliament to regulate Persons, places, matters or things, acts events or relationships outside Australia

Characterisation Geographic externality Implementation of international obligations

Geographic externality Only necessary to demonstrate that the law is “with respect to” that matter or thing Polyhukovich v The Commonwealth (1991) Subject to express or implied limitation it was not necessary to establish a connection between a matter outside Australia and Australian concerns to regulate matter. To require a connection would be inconsistent with the plenary grant of power to Parliament to make laws for peace, order and good government with respect to External Affairs. Minority in Polyhukovich v The Commonwealth (1991) some nexus, not necessarily substantial between Australia and the external affairs with the law purports to affect. Must touch or concern Australia’s national interest in some way.

The Trade and Commerce Power

Constitution, ss 51(i), 92 & 98 s 51(i) : Trade and commerce with other countries and among the States s 92 : Trade within the Commonwealth to be free s 98 : Trade and commerce includes navigation and State railways

Sources of Obligations

Legislation

Federal Legislation

Workplace Relations Act 1996 Anti-Discrimination Legislation

Awards

Creation Allowable matters Minimum Wage Safety Net Common Rule Awards

Institutions

Inspectorate

Include reference to Employment Advocate and Interim Building Industry Taskforce

Timeline of Significant Events

Boilermakers

• R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

Commonwealth Court of Conciliation and Arbitration Act gave court 2 powers: 1/ conciliates and arbitrates industrial awards 2/ also has the power to enforce the awards CCCA fined boilermakers for failing to comply with a court order. Boilermakers brought a writ against Kirby (Chief Judge of the Arbitration Court) on basis that Court infringed separation of powers in s71. They argued the court was an arbitral body and the constitution prevented it from being vested with the judicial power of the Commonwealth. Argument included:

• sep of powers
• only Ch 3 Cts can exercise Ch 3 power
• Ch 3 Cts can only exercise Ch 3 power

Held: Majority of H Ct said all 3 propositions were correct. Judicial power of the commonwealth could not be conferred on bodies other than the courts in Ch III of the constitution. Further, non judicial power could not be conferred on such courts. It was not a Federal Court and could not exercise judicial power.

The whole scheme was struck down as couldn’t have one institution excising both exec power and judicial power. C’th had to set up both IR Commission and Industrial Division of Fed Ct.

Engineers

• Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 29 CLR 129

Amalgamated society of engineers served a log of claims on employers throughout Australia – including on WA Government enterprises. Proceedings began in Arbitration court to resolve dispute. WA Minster argued that the federal Conciliation and Arbitration Act (Cth) could no apply to state government enterprises. Held : The WA government lost as federal legislation can apply to the states. Majority of HCA said our system is system of responsible gov’t. The Act was a valid exercise of the power in s51(xxxv) which gave federal parliament power over industrial disputes involving more that one state, and there was no basis on which to exclude the states from the operation of the Act.

The Engineers case is the most important case on interpretation of constitution: give the language of the constitution their natural meaning. Before Engineers (1904-1920) the High Court believed that the States retained particular powers known as the State Reserve Powers Doctrine……. Prior to Engineers s51 powers were Commonwealth Powers and all other powers were state powers Post engineers the commonwealth parliament via s109 gained supremacy over the states. And fundamentally recast commonwealth state relations from that point.

Electrolux

In [date] the High Court of Australia delivered judgment in the matter of Electrolux Home Products v AWU.

Pilots Dispute

Include links to ILO dispute resolution process.

Waterfront Dispute

See AustLII's waterfront dispute resources page for the primary materials.

Sources & Further Reading

• Blackshield, Coper & Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) [ISBN 0195540220]

External Sites

• AustLII Workplace Law Project
• Australian Council of Trade Unions
• Australian Industrial Relations Commission
• Australian Government Workplace Portal
• Wagenet