Contributed by: Colin Fenwick, Senior Lecturer, Centre for Employment and Labour Relations Law School, University of Melbourne, Victoria, Australia and Jane Hodges.
1. General Legal Framework
(a) Constitutional Framework
The Commonwealth of Australia was established by the Commonwealth Constitution on 1 January 1901. The Commonwealth is a federation of six States and two Territories. The legal relationship between the States and the Commonwealth is defined by the Commonwealth Constitution. Although the Territories are now self-governing, the Commonwealth can choose to override any Territory law if it so wishes. The Commonwealth Constitution can only be modified by referendum which requires an amendment to be passed by a majority of electors in a majority of the States and Territories. It has not been altered to any significant extent since it came into effect.
The Head of the Commonwealth Government is the Prime Minister. He or she must be a Member of Parliament and holds office for no longer than three years, at which time elections are held. Each State government is headed by a Premier, who also is a Member of the relevant State parliament. Australia’s Head of State is the Queen of England, represented in Australia by the Governor-General. The Governor-General, who is appointed for a limited term by the Prime Minister, generally performs all of the functions of Australia’s Head of State. In the States, the Queen is represented by a Governor.
The Commonwealth and State and Territory governments are based on the Westminster system of governance. Government is based on the principles of the separation of powers and responsible government. Each government consists of two houses of parliament (except for the State of Queensland which has one house), an executive arm and a judiciary. The Commonwealth and State and Territory constitutions set out the powers of the parliaments, executives and judiciaries. Members of Parliament are appointed through democratically conducted, regularly-held, general elections at which voting is compulsory. Members of lower houses of parliament are generally appointed for three years, and members of the upper houses enjoy terms of no more than six to eight years.
The Commonwealth Constitution established limits on the scope of Commonwealth legislative power by explicitly listing the legislative powers of the Federal Parliament (s 51). No such limits exist on State or Territory legislative powers, except for the proviso that State and Territory laws inconsistent with any Commonwealth laws will be invalid, and the Commonwealth law will prevail to the extent of the inconsistency (s 109). Bills become enacted into law when they have been passed by a majority of both Houses of Parliament and then given royal assent by the Governor-General (or by the State Governor in the case of State laws).
The Australian courts, both State and Federal, interpret legislation and apply the common law to disputes arising before them, but it is the High Court that is given the power to adjudicate constitutional disputes arising between the Commonwealth and the States. The High Court is also the ultimate court of appeal for disputes that have been litigated in all State and Federal courts. Judges are appointed from the ranks of senior advocates by the relevant Attorney-General, and hold their appointment until they reach retirement age, usually 70 years.
(b) Regulation of Labour
The Commonwealth Government does not have a plenary power to make laws with respect to labour relations or the employment relationship. The limitations which have been placed on the Commonwealth’s ability to legislate have resulted in considerable complexity in the Federal labour law system. Attempts by the Parliament to circumvent these limitations have lead to political and legal difficulties. The regulation of labour relations in Australia is further complicated by the necessity for the Federal system to function alongside comprehensive State-based legislative schemes.
Under section 51(35) of the Commonwealth Constitution, the Federal government has the power to make laws with respect to “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. In addition, the Commonwealth has chosen to regulate labour-related matters using legislative powers concerning the federal public service, “constitutional corporations”, interstate and international trade and commerce, and external affairs. As Federal laws in all of these areas will override inconsistent State laws, the Commonwealth in practice has utilised these powers to assume a substantial regulatory responsibility for most of the labour law system. Outside the areas outlined in the Constitution, the States have generally retained responsibility for the regulation of labour-related matters including occupational health and safety, job security and wage rates.
The courts have traditionally played an important role in the interpretation of complex and intricate labour statutes. As a result, a considerable body of judge-made law has evolved that has influenced workers, unions and government.
2. Labour Legislation
In 1904, the Federal Parliament enacted the Conciliation and Arbitration Act 1904 (Cth). This Act, which established a Court of Conciliation and Arbitration, was primarily concerned with preventing and settling interstate industrial disputes through conciliation and arbitration, pursuant to s 51(35) of the Commonwealth Constitution. Through the processes of conciliation and arbitration, the Court also came to set wage rates and terms and conditions of employment across industries through the application of “awards” — arbitrated orders of the Court of Conciliation and Arbitration. Over the last century, this Act was renamed several times, extensively amended and its scope enlarged, particularly by the Industrial Relations Act 1988 (Cth) and the Industrial Relations Reform Act 1993 (Cth).
The primary statute regulating labour in Australia is now the Workplace Relations Act 1996 (Cth), which has succeeded the above-mentioned Acts. The stated principal object of the Workplace Relations Act is “to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia” (s 3). The Act establishes the Australian Industrial Relations Commission (AIRC), provides machinery for the prevention and settlement of industrial disputes, sets out minimum entitlements of employees, allows for the negotiation and enforcement of collective and individual employment agreements and extensively regulates the activities of trade unions and employer organisations. The Act also protects the freedom of workers and employers to associate in trade unions and employer organisations. In addition, the Commonwealth has passed further legislation regulating the public service (see, eg, the Public Service Act1999 (Cth)) and prohibiting secondary boycotts (see the Trade Practices Act 1974 (Cth) ss 45D–45EA). The present conservative-led government is currently attempting to significantly amend the Act.
In recent years, union membership has declined significantly. Whereas unions could claim 40.5% of the Australian workforce as members in 1990, union membership comprised 24.7% of the workforce in 2000 (Australian Bureau of Statistics: Trade Union Members, Australia (Catalogue No 6325.0). The Australian Bureau of Statistics notes that the decline in union density “partly reflects the changing full-time/part-time working patterns of Australia’s employed labour force.” Other reasons for the decline include: the failure of the union movement to respond to structural changes in workplace practices; changes in methods of production towards increased use of technology; and the effects of globalisation on the movement of local industries. More recently, the success of union exclusion and individualisation policies pursued by government and employers and a rise in the use of non-union collective agreements and individual agreements may be partly to blame for declining union membership in Australia.
(b) Sources of Labour Law
Terms and conditions of employment are regulated by statute and the common law. Co-existing Federal and State statutory schemes are supplemented by the common law as developed in both Federal and State courts and tribunals, and bodies such as the AIRC.
At the federal level, the Workplace Relations Act 1996 (Cth) provides three different methods for fixing a worker’s terms and conditions of employment — awards, certified agreements and Australian Workplace Agreements. (See Part 11 “Collective Bargaining and Agreements” below, for a description of awards and certified agreements.)
Australian Workplace Agreements (AWAs) (see Part VID of the Workplace Relations Act) are agreements negotiated between a single employee and their employer on an individual basis. Although an employee may appoint a bargaining agent (such as a trade union), the bargaining agent does not become a party to the agreement (s 170VK). AWAs are subject to approval by the Employment Advocate (see Part VIA of the Act) or in some cases the AIRC. In general, an AWA may not be approved unless it passes a “no disadvantage test” (s 170 VPB(1) and s 170VPG(1)). In other words, the overall level of conditions in the AWA must be measured against the overall level of conditions that would otherwise apply under an applicable award or certified agreement. The purpose of this requirement is to ensure that individual workers do not bargain away the conditions of employment to which they would otherwise be entitled. There are, however, circumstances in which an AWA may be approved, either by the Employment Advocate or by the AIRC, even though it does not pass the no disadvantage test. Either the Employment Advocate or the AIRC may accept written undertakings or “other action” by a party to resolve the relevant concern (ss 170VPB(2) and 170VPG(3)). Moreover, the AIRC must approve an AWA, whether or not it passes the no disadvantage test, if it is not contrary to the public interest to approve it (s 170VPG(4)). Once approved, an AWA operates to the exclusion of most Federal awards and all State awards and employment agreements. An AWA generally prevails over a certified agreement to the extent of any inconsistency (s 170VQ). Any hearings by the AIRC concerning an AWA are held in private (s 170WHD). While the AIRC is not obliged to publish its determinations concerning AWAs, if it does so it must not identify the parties to the AWA (s 170WHC). Amendments have been proposed to the AWA regime: Workplace Relations Amendment (Simplified Agreement-making) Bill 2002 (Cth).
At the State and Territory level, five States (but not Victoria) currently have their own statutory schemes regulating wages and employment conditions. In New South Wales, the Industrial Relations Commission is regulated by the Industrial Relations Act 1996 (NSW). In Queensland, there exists an Industrial Relations Commission, an Industrial Court and also Industrial Magistrates, under the Industrial Relations Act 1999 (Qld). The Tasmanian Industrial Commission is regulated by the Industrial Relations Act 1984 (Tas). The operation of Western Australia’s Industrial Relations Commission is subject to the Industrial Relations Act 1979 (WA) and also the Minimum Conditions of Employment Act 1993 (WA). In South Australia, the Industrial and Employee Relations Act 1994 (SA) governs the operation of the Industrial Relations Court and the Industrial Relations Commission of South Australia.
The courts in both State and Federal jurisdictions make significant contributions to the development of labour law in Australia. The Federal Court of Australia (a court established under Commonwealth legislation) hears most cases pertaining to the Workplace Relations Act 1996 (Cth) and also deals with cases concerning contracts of employment if these cases concurrently raise issues ordinarily falling within the Federal jurisdiction. State Supreme and Industrial Courts have jurisdiction over matters of interpretation of State legislation as well as cases concerning contracts of employment and other common law proceedings.
- Australian Industrial Relations Commission
- Federal Court of Australia
- Employment Advocate
- Australian Bureau of Statistics
- Public Service Act1999 (Cth); Trade Practices Act 1974 (Cth); Workplace Relations Act 1996 (Cth)
- Industrial Relations Act 1996 (NSW); Industrial Relations Act 1999 (Qld)
3. Contract of Employment
(a) Common Law Regulation
Under the common law, all employees have a contract of employment with their employer. This contractual employment relationship co-exists with other statute-based forms of employment regulation, such as awards or certified agreements (see the Workplace Relations Act 1996 (Cth)). This means that employees or employers can take legal action to enforce a contract of employment regardless of the status of the employment relationship under statute. It also gives rise to considerable legal complexity over the relationship between the contract of employment and forms of statutory regulation in particular.
However, not all workers can be classified as employees in the legal sense. Only employees are regarded by the law as working under a contract of employment. The common law distinguishes between employees and independent contractors. Independent contractors are those workers classified as “someone who acts as an independent principal, exercising an independent discretion in carrying out a task for his own business interest and who is retained simply to produce a result” (Hollis v Vabu Pty Ltd  HCA 44 (9 August 2001)). Independent contractors therefore cannot avail themselves of the remedies available for wrongful termination of a contract of employment, or qualify for other legal entitlements attached to employment contracts.
Contracts of employment can specify whether they establish an ongoing (ie permanent) employment relationship or whether they are for a fixed term only. Casual workers do not have a continuing contract with their employer, instead a new contract is formed for each shift worked. The numbers of employees engaged as ‘casual’ is comparatively high in Australia (20 per cent of the employee workforce), but many of these are ‘regular casuals’ and are thus not very different from regular employees. Employment contracts often contain clauses for probationary periods, which may allow either party to terminate the contract without notice, within a specified period, and without penalty. Unless a contract expressly provides that an employee may be suspended, an employer cannot lawfully suspend an employee unless he or she is paid their full wage. However, it should be noted that the “no work no pay” principle does entitle the employer to withhold the payment of wages where a worker has refused to perform his or her obligations under the contract fully.
An employer may terminate a contract of employment on a number of grounds. Firstly, a contract may generally be summarily terminated if an employee declines to fulfil any or all of his or her obligations under the contract. Summary termination may also be justified in serious cases of misconduct, such as dishonesty, or if an employee demonstrates a high level of incompetence. At common law, if an employer transfers or transmits its business to another entity, it is unlikely that the contract between the original employer and employees remains on foot. Nevertheless, the parties often treat the original contract as continuing. Moreover, the Workplace Relations Act 1996 (Cth) provides that any federal awards or certified agreements binding the original employer will bind its successor (ss 149(1)(d), 170MB(1)).
If a contract fails to prescribe length of notice before dismissal, the courts require notice to be of a ‘reasonable period.’ Statutory notice requirements supplement the common law (see, eg, Workplace Relations Act 1996 (Cth) s 170CM) and periods of notice set out in awards and statutory employment agreements. The Federal Act also permits payment of wages in lieu of notice.
In cases of an employer’s insolvency, the Corporations Act 2001 (Cth) provides that employees are to be ranked ahead of other unsecured creditors, but not secured creditors (s 556, and see Part 5.8A). The Commonwealth has also established a scheme that provides limited protection for employees’ entitlements in the event of their employer’s insolvency (General Employees Entitlements Scheme).
The usual remedy in cases of unjustified dismissal is the payment of damages. The amount recoverable in an action for damages is usually the amount due under the contract, ie wages and the monetary value of other benefits payable from the date of the wrongful dismissal to the date on which the employer could have terminated the worker’s employment legitimately. This amount may be reduced if the employee fails to mitigate their losses for example, by neglecting to seek employment elsewhere. Reinstatement is possible at common law only in exceptional circumstances. However it is highly uncommon for proceedings to be brought on this basis. Compensation for distress or humiliation is generally not recoverable by employees at common law. Termination at the initiative of the employee may occur if the employer repudiates the employment contract; the employee may then terminate and make a claim for damages.
(b) Legislative Intervention
The common law remedies for breach of an employment contract are supplemented by concurrently operating Federal and State statutory schemes for unfair and unlawful dismissal (in all States except Victoria). In November 2002 the Federal Government introduced legislation that would extend the operation of the Federal laws regulating termination of employment to all persons employed by corporations (as defined). This would be a substantial expansion of the scope of the Federal laws, which would then override the State laws (by operation of s 109 of the Commonwealth Constitution) to a far greater extent. (See Workplace Relations Amendment (Termination of Employment) Bill 2002).
At present, the Federal laws apply to Victorian workers (unless specifically excluded) and other workers covered by the Workplace Relations Act 1996. Only certain classes of employee may make an application for relief to the AIRC alleging unfair termination (s 170CB(1)). These include Commonwealth public sector employees, Victorian employees, Territory employees, federal award employees employed by a constitutional corporation and some waterside and maritime employees and flight crew officers. Employees excluded include fixed term/task employees, short-term casuals and non-award employees whose remuneration exceeds A$71, 200. On the other hand, all employees are entitled to make an application to the Commission to remedy an alleged unlawful termination, except those specifically excluded (s 170CB(3)). Employees excluded from the application of the unlawful termination provisions include fixed term/task employees, short-term casuals and probationary employees. See also Workplace Relations Act 1996 (Cth) s 170CC; Workplace Relations Regulations 1996 (Cth) regs 30B, 30BA–30BC.
These statutes allow proceedings to be brought in the various State tribunals (in the case of State laws) or the Australian Industrial Relations Commission or Federal Court (for claims under the Workplace Relations Act 1996 (Cth) Part VIA, Division 3).
The Workplace Relations Act 1996 (Cth) permits a worker to apply for relief if:
- their dismissal was harsh, unjust or unreasonable (ss 170CE(1)(a), 170CG(3)); or
- their employment was terminated unlawfully for a prohibited reason (eg, inter alia, by reason that the employee was involved with a trade union, for reasons of the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin) (s 170CK); or
- the employer failed to notify the federal employment service when dismissing 15 or more employees for reasons of an economic, technological, structural or similar nature (s 170CL); or
- the employer failed to observe statutorily prescribed notice periods when terminating the employee, or to make a payment in lieu of notice (s 170CM); or
- the employer terminated the employment relationship in contravention of an AIRC order prohibiting large scale redundancies in contravention of Articles 12 or 13 of ILO Convention 158 (s 170CN).
If the AIRC concludes that termination was harsh, unjust or unreasonable, it may decide to reinstate the employee or pay an amount in lieu of reinstatement, or require the employer to pay an amount equal to the remuneration lost because of the termination (s 170CH). In certain cases, costs may be awarded against an employee (s 170CJ). If the Federal Court decides that any of ss 170CK–170CN have been breached by the employer, the Court may impose a penalty, order reinstatement, require the payment of compensation or any other order it thinks necessary to remedy the effect of the unlawful termination (s 170CR).
The Federal Coalition Government currently has a Bill before Parliament seeking to exclude the operation of Subdivision B of Part VIA of the Workplace Relations Act 1996 (Cth) (ie, those provisions relating to harsh, unjust or unreasonable dismissals) from businesses with less than 20 employees: Workplace Relations Amendment (Fair Dismissal) Bill 2002 (Cth).
The State legislative schemes are broadly similar in structure to the federal system.
In Western Australia, employees may seek redress under the Industrial Relations Act 1979 (WA) by applying to the WA Industrial Relations Commission if they believe they have been “harshly, oppressively or unfairly” dismissed. The Commission may order reinstatement, re-employment, payment of lost wages and other benefits or compensation amounting to no more than six months’ remuneration.
South Australian laws permit employees to apply to the SA Industrial Relations Commission if they allege that the termination of their employment was harsh, unjust or unreasonable (Industrial and Employee Relations Act 1994 (SA) ch 3, pt 6). Employees have 14 days after their dismissal to lodge an application. Classes of employees excluded from claiming unfair dismissal include casuals employed for less than 6 months, workers employed for a specified period or task and employees who are similarly protected under an award, agreement or contract.
Tasmanian employees have 21 days to lodge an application with the Tasmanian Industrial Commission alleging that their termination was unfair or was not made for a valid reason (Industrial Relations Act 1984 (Tas) ss 29–31).
New South Wales workers may apply to the NSW Industrial Relations Commission alleging that their dismissal was harsh, unreasonable or unjust under the Industrial Relations Act 1996 (NSW). The Act applies to all NSW public and private sector employees, except those covered by a federal award or agreement or those whose salary exceeds a “prescribed amount”. Other employees (including casuals working for less than 6 months and those on fixed-term contracts of less than 6 months’ duration) are excluded by regulation (Industrial Relations (General) Regulation 2001 (NSW) s 6).
In Queensland, dismissed workers may apply to the Queensland Industrial Relations Commission, under the Industrial Relations Act 1999 (Qld) ch 3, alleging that their dismissal was harsh, unjust or unreasonable or occurred for an invalid reason (ss 73(1)). Workers are obliged to first seek reinstatement, and, if this is impracticable, may be awarded compensation (s 78).
(c) Protection for Independent Contractors
The Federal, New South Wales and Queensland governments have all made provision for the protection of independent contractors from “unfair contracts”. (Independent contractors are not classed as employees, although many work in employee-like conditions, and thus are not subject to the protection offered by much industrial legislation). Contractors may apply to the Federal Court for review of a contract on the grounds that the contract is unfair or harsh (Workplace Relations Act 1996 (Cth) ss 127A–127C). Work cannot have been done for the private or domestic purposes of the other party, and one of the parties must have been either a constitutional corporation, the Commonwealth, a Territory or a Commonwealth authority. The Court may decide to set aside the whole or part of the contract, or vary the contract.
New South Wales contractors may have their contracts reviewed by the NSW Industrial Relations Commission (Industrial Relations Act 1996 (NSW) s 106). The Commission has the power to vary the contract or declare it void, to order the payment of compensation or prevent the making of further contracts. Remedies are available if the arrangement is found to be unfair, harsh or unconscionable, is against the public interest, grants the contractor less remuneration than if they had been an employee, or is designed to circumvent an award, agreement or contractual arrangement. Similar arrangements have been made for Queensland contractors under s 276 of the Industrial Relations Act 1999 (Qld).
- Workplace Relations Regulations 1996 (Cth)
- Proposed amendments to the Workplace Relations Act 1996 (Cth): http://www.aph.gov.au or http://www.workplace.gov.au
- Industrial Relations Act 1979 (WA); Industrial and Employee Relations Act 1994 (SA); Industrial Relations Act 1984 (Tas); Industrial Relations Act 1996 (NSW); Industrial Relations Act 1999 (Qld)
4. Hours of Work
The standard working week in Australia is 38 hours. Awards, certified agreements and Australian Workplace Agreements generally contain provisions setting out ordinary hours of work, rest breaks and overtime and penalty rates. The average number of hours paid for in 2000 for full-time, adult, non-managerial employees was 39.8 hours (source: Australian Bureau of Statistics, Employee Earnings and Hours, Australia (Catalogue 6306.0, 2001). Only a Full Bench of the AIRC may vary standard hours clauses in awards (s 106). Many workers are able to use “flexitime”; this permits a worker to flexibly vary their working hours over a set period.
In New South Wales, awards can generally only prescribe working weeks not exceeding 40 hours (Industrial Relations Act 1996 (NSW) s 22). Queensland law prescribes that employees cannot be required to work not more than either, 6 days in any 7 consecutive days, or 40 hours in any 6 consecutive days, or 8 hours in any day (Industrial Relations Act 1999 (Qld) s 9(2)). South Australian and Tasmanian awards generally make provision for standard working hours similar to the other States.
5. Paid Leave and Other Leave Entitlements
Full-time and part-time workers receive at least fours weeks of paid annual leave each year (after 12 months’ employment) pursuant to Commonwealth, State and Territory awards and agreements or legislation. Any public holidays occurring during an employee’s leave entitles them to an equivalent extension to their annual leave. Workers generally receive a loading of 17.5% on their annual leave.
Workers also receive entitlements for long (and usually continuous) service. In most jurisdictions, workers are entitled to three months’ leave after working for the same employer for 15 years. Provision is made for such leave by legislation (and some awards) in all States and Territories (see, eg, Long Service Leave Act 1976 (ACT); Long Service Leave Act 1955 (NSW); Long Service Leave Act 1981 (NT); Industrial Relations Act 1999 (Qld); Long Service Leave Act 1987 (SA); Long Service Leave Act 1976 (Tas); Long Service Leave Act 1992 (Vic); Long Service Leave Act 1958 (WA)) and Commonwealth awards and agreements.
Sick leave is granted to most workers under awards or agreements and some State legislation also sets out minimum entitlements. However, provision is now commonly made in awards and agreements for personal or carer’s leave, which may include sick leave, family leave, bereavement leave, compassionate leave, cultural leave and other like forms of leave (Workplace Relations Act 1996 (Cth) s 89A(2)(g)). The annual standard period of personal leave is usually 40 hours in the first year of service and 64 hours thereafter, with some variations depending upon an employee’s standard hours. See also Industrial Relations Act 1996 (NSW) s 26; Workplace Relations Act 1996 (Cth) sch 1A; Industrial Relations Act 1999 (Qld) s 10; Industrial and Employee Relations Act 1994 (SA) s 70, sch 3; Minimum Conditions of Employment Act 1993 (WA) ss 19–21; Industrial Relations Act 1984 (Tas) ss 3(1), 32(1), 61F(2)(b).
Leave for trade union purposes, educational leave and leave relating to the holding of public office are unlikely to be ever included in a federal award (see Workplace Relations Act 1996 (Cth) s 89A), but provision can be (and is) made for these types of leave in statutory employment agreements and State awards.
6. Maternity Leave and Maternity Protection
Maternity leave is available to female employees for a period of up to 12 months and is usually unpaid (Workplace Relations Act 1996 (Cth) ss 170KA, 170KB, Schedule 14). However, many certified agreements now make provision for paid maternity leave of up to 12 months’ duration. Paternity leave cannot overlap with a spouse’s maternity leave, except for a period of one week at the time of birth, and together, both parents cannot take more than 52 weeks leave. Adoption leave is available to employees on similar terms to maternity and paternity leave (Workplace Relations Regulations 1996 (Cth) regs 30E–30ZD). In addition to the federal legislation, most States and Territories have enacted legislation pertaining to maternity, paternity and adoption leave, and many awards also provide for such leave.
Federal legislation provides that “[a]n employee who takes parental leave is, in most circumstances, entitled to return to the position which he or she held before the leave was taken”. (Workplace Relations Act 1996 (Cth) sch 14). Casual employees are not able to take parental leave. Federal and State anti-discrimination legislation also prohibit discrimination on grounds of pregnancy or potential pregnancy (Sex Discrimination Act 1984 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (WA)).
While proposals have been discussed for paid parental leave after the birth of a child, it is unlikely that any Australian government will enact such legislation in the foreseeable future, although employers are not legally prevented from including such a provision in statutory employment agreements or employment contracts.
7. Minimum Age and Protection of Young Workers
The Children (Care and Protection) Act 1987 (NSW) pt 4 prohibits the employment of children under 15 in a limited number of industries and where “the child’s physical or emotional well-being is put at risk”. Western Australian legislation prohibits the full-time employment of children under the age of 15 and for indecent purposes, but permits restricted employment outside school hours (School Education Act 1999 (WA) s 29; Child Welfare Act 1947 (WA) ss 107B, 108). Children younger than school-leaving age in the Australian Capital Territory are prohibited from being employed, except in light work and family businesses: Children and Young People Act 1999 (ACT) ch 10. Victorian law requires persons employing children under the age of 15 to obtain a fixed-term permit (Community Services Act 1970 (Vic) pt 3, div 9).
Legislation at the Federal and State levels prohibits both direct and indirect discrimination in employment (and other areas) on a number of grounds. These grounds, while not all covered by each of the anti-discrimination statutes, include: that the employee was involved with a trade union, and for reasons of the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The relevant federal legislation is contained in a number of statutes: Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Workplace Relations Act 1996 (Cth) Part VIA, Division 3. These statutes are augmented by State and Territory legislation: Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (WA).
The Sex Discrimination Act 1984 (Cth) prohibits sexual harassment, which is defined as “an unwelcome sexual advance, or an unwelcome request for sexual favours … or … other unwelcome conduct of a sexual nature … [provided that] a reasonable person … would have anticipated that the person harrassed offended, humiliated or intimidated.” (s 28A). The prohibition applies to “employment”, which includes part-time and temporary employment, work under a contract for service and work as a Commonwealth employee (s 4). This approach is mirrored in the State and Territory legislation mentioned in the preceding paragraph.
Legislation requires many public and some private sector organisations to implement equal employment opportunity policies. See Anti-Discrimination Act 1977 (NSW) Part 9A; Public Service Act 1999 (Cth) s 10; Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth); Equal Opportunity in Public Employment Act 1992 (Qld); Equal Opportunity Act 1984 (WA) Part IX; Public Sector Management Act 1995 (SA) s 67; Equal Opportunity for Women in the Workplace Act 1999 (Cth).
The national minimum wage is decided by the AIRC on application by the Australian Council of Trade Unions (on an annual basis) to vary certain awards, with employer groups, in most cases, opposing the application; Commonwealth and State governments are also entitled to make submissions. The decision of the AIRC is then, in the usual course, taken up by the various State industrial tribunals, some of which are obliged to take into account the Federal decision in adjusting minimum wages at the State level. Existing federal and state awards are then varied accordingly. Formerly known as “National Wage Cases”, these federal cases are presently referred to as “Safety Net Wage Reviews”. The expression derives from s 88A(b) of the Workplace Relations Act 1996 (Cth), by virtue of which one of the Act’s objects is to ensure that “awards act as a safety net of far minimum wages and conditions of employment.” Safety Net Wage Review decisions typically also affect wage levels negotiated for the purposes of collective statutory agreements. The minimum wage, at June 2002, was AU$413.40. In November 2002 the Australian Council of Trade Unions announced that it would seek a rise in the safety net wage of 5.7 per cent in 2003.
10. Regulation of Trade Unions and Employer Organisations
Trade unions and employer groups are comprehensively regulated at the federal level by the Workplace Relations Act 1996 (Cth) Parts IX, X, XA & XI, and are also subject to regulation by State and Territory governments. New Federal laws to regulate trade unions and employer organisations were passed by the Federal parliament on 16 October 2002, but have not yet entered into force. See the Workplace Relations (Registration and Accountability of Organisations) Act 2002 (Cth), and its companion, the Workplace Relations (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (Cth). As under the existing law, it is important to highlight that the new laws will apply to both trade unions and employer organisations (referred to collectively as “registered organisations”), although it can be argued that many of the provisions are more relevantly directed towards the regulation of trade unions.
In Australia, trade unions can be registered at both State and Commonwealth levels. There are currently 44 federally-registered unions, many of which also have State and Territory branches. Union members comprised 24.7% of the workforce in 2000 (Australian Bureau of Statistics: Trade Union Members, Australia (Catalogue No 6325.0). A series of amalgamations in the 1980s and 1990s resulted in the consolidation of many smaller unions into “super-unions”, a considerable number of these now having over 100,000 members. There are also 69 registered employer organisations.
To be registered in the federal system, a trade union must be established for the purpose of “furthering or protecting the interests of its members”, be “free from control by, or improper influence from, an employer”, and have “at least 50 members who are employees” (Workplace Relations Act 1996 (Cth) s 189). In addition, there must be no other trade union “to which the members of the association could more conveniently belong” and “that would more effectively represent those members” (Workplace Relations Act 1996 (Cth) s 189(1)(j)). However, the AIRC may register as an organisation an applicant association that does not meet these criteria, if it gives an undertaking to avoid demarcation disputes with any other organisation that is already registered and to which the members of the applicant association might belong (Workplace Relations Act 1996 (Cth) s 189(2)). Another criterion for registration requires the AIRC to consider whether the proposed union members have recently breached orders of the AIRC requiring them to refrain from industrial action (ss 189(1)(d), (5), 294(1)(d)). An application for registration is made to a presidential member of the Australian Industrial Relations Commission. If this application is refused, the association making the application may appeal to a Full Bench of the AIRC (s 45(1)(f)).
There are stringent and detailed legislative controls on the internal structures and rules of federally-registered trade unions and employers’ associations. The legislation has long aimed to promote the democratic functioning of trade unions and employer organisations. Objects of the Workplace Relations (Registration and Accountability of Organisations) Act 2002 (Cth) include to ensure that these groups are “representative of and accountable to their members, and are able to operate effectively”, and to “encourage members to participate in the affairs of organisations to which they belong” (s 5). This Act provides for the following with respect to registered organisations: registration and cancellation of registration (Chapter 2); amalgamation and withdrawal from amalgamation (Chapter 3); rules (including elections, enforcement and validity) (Chapter 5); membership (Chapter 6); democratic control (Chapter 7); and records and accounts (Chapter 8). The model and thrust of regulation in the Act is largely the same as that in the Workplace Relations Act 1996 (Cth) which it is to replace.
See also the State legislation in this area: Industrial Relations Act 1996 (NSW) ss 217–305; Industrial Relations Act 1999 (Qld) ch 12; Industrial and Employee Relations Act 1994 (SA) ss 119–46; Industrial Relations Act 1984 (Tas) pt 5; Industrial Relations Act 1979 (WA) ss 53–80; Trade Unions Act 1958 (Vic); Trade Unions Act 1889 (Tas).
One of the objects of Part XA of the Workplace Relations Act 1996 (Cth), entitled “Freedom of Association”, is “to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations” (s 298A(1)). Part XA prohibits certain conduct (s 298K) if it is found to have occurred for a prohibited reason (s 298L). The conduct proscribed includes permitting or threatening to dismiss an employee, injuring an employee in his or her employment, altering the position of an employee to the employee’s prejudice, refusing to employ another person or discriminating against another person in the terms or conditions on which the employer offers to employ the other person (s 298K(1)). Conduct is proscribed if it is carried out because: the person is an officer, delegate, or member of a trade union; the person is not a member of a trade union; the person is entitled to the benefit of an industrial instrument or an order of an industrial body; the person proposes to make a complaint to an industrial body; or the person is a member of a trade union seeking better industrial conditions and is dissatisfied with his or her conditions (NB, this is not an exhaustive list) (s 298L(1)). Section 298M additionally prohibits an employer from inducing an employee to stop being an officer of member of a trade union. As a consequence of the application of Part XA, any closed shop provision in an award or agreement will be in contravention of the Act and void pursuant to s 298Y.
The right to join a union and the right to resign from a union are provided for in ss 261 and 264 respectively. The right to join is qualified, firstly, by the trade union’s eligibility rules and secondly, the requirement that a person comply with the trade union’s rules. A person may resign their membership at any time (s 264(1)). A person has a right not to join a union (see Part XA).
Commonwealth legislation prohibits the inclusion of provisions in awards for the deduction of union dues (Workplace Relations Act 1996 (Cth) s 89A). Nevertheless, parties may negotiate to include such provision in certified agreements, Australian Workplace Agreements, contracts and other State and unregistered employment agreements, although this is uncommon. The Federal Government is currently seeking to pass legislation restricting the right of unions to include provisions in certified agreements for the compulsory payment of a fee for the negotiation of such an agreement (see Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2002 (Cth)).
Once a union has been registered under the federal system, it acquires certain privileges of recognition for the purposes of bargaining, taking industrial action and appearing before the Commission. It is able to participate in an ‘industrial dispute’ within the meaning of the Workplace Relations Act 1996 (Cth), and thereby to have access to the AIRC’s powers of conciliation and arbitration. It may act as a bargaining agent for its members, or other employees, in negotiations for a collective agreement that might be certified under the Act, or for the terms of an Australian Workplace Agreement (although any person may offer such representation). An organisation that is registered under the Workplace Relations Act 1996 (Cth) may organise and participate in industrial action, during negotiations for a certified agreement, that will be protected from the civil liability that would otherwise attend it under the common law.
Where a party (including a trade union) engages or proposes to engage in industrial action while negotiating an award or certified agreement, and the AIRC finds that the party “is not genuinely trying to reach an agreement with the other negotiating parties”, the Commission may suspend or terminate the bargaining period (s 170MW). The result of this is that further industrial action will be unlawful (see Part 13 “Strikes and Lock-Outs” below). The Federal Government is proposing to amend the principal Act by giving the AIRC further power to terminate bargaining periods. The Workplace Relations Amendment (Genuine Bargaining) Bill 2002 (Cth) is directed at “pattern bargaining”: bargaining by unions that seeks common conditions within an industry. The proposed legislation would place even further legislative emphasis on parties negotiating agreements at the level of the enterprise or workplace, referred to in the Workplace Relations Act 1996 (Cth) as the ‘single business’ (ss 170L, 170LB and 170LC). If passed, the new provisions would empower the AIRC to terminate a bargaining period where satisfied that a party was not genuinely seeking an agreement with only the other (direct) negotiating party. The Bill would introduce several other amendments to the power of the AIRC with respect to suspesnion and termination of bargaining periods.
11. Collective Bargaining and Agreements
Federal legislation regulates two principal types of collective bargaining: bargaining for the purpose of making an award, and enterprise level-bargaining for the purpose of negotiating a certified agreement.
Awards are orders made by the AIRC that generally cover certain classes of workers within a given industry. These orders are the arbitrated outcome of a dispute between an employer and one or more unions. While the Federal and State systems have promoted collectively bargained arrangements in favour of awards for around a decade, 23% of the workforce is still covered only by awards, either state or federal (Australian Bureau of Statistics, Employee Earnings and Hours, Australia, Catalogue No 6306.0, 2001). Once the AIRC has been notified of an industrial dispute under s 99 of the Workplace Relations Act 1996 (Cth), it is first obliged to attempt to resolve it through conciliation (s 100). If this is not possible, the matter may proceed to arbitration (s 104). The Commission is empowered to make an order to stop or prevent industrial action in relation to an industrial dispute (s 127). Trade unions are party to awards in their own right, and play a role in the enforcement of award provisions. The terms of an award can legally bind employers, employees and trade unions. The AIRC also has the power to set aside or vary awards (s 113).
In general, an award may only include provisions relating to the “allowable matters” listed in s 89A of the Workplace Relations Act 1996 (Cth). The matters listed include rates of pay, leave, superannuation, classifications of employees and hours of work. All awards in force must only contain provisions that relate to allowable matters: since 1 July 1998 any other provisions in awards have been deemed unenforceable. This is part of a process of “award simplification”, under which all awards in force when the Workplace Relations Act 1996 (Cth) entered into force must be amended to comply with the limited list of allowable matters. The process of award simplification therefore affects the content of awards made in settlement of industrial disputes before the entry into force of the Act. This process of award simplification was held to be constitutionally valid by the High Court of Australia: Re Pacific Coal; ex parte CFMEU (2000) 203 CLR 346. There have been several attempts to further limit the matters that may be provided for in an award. The most recent attempt is contained in the Workplace Relations Amendment (Award Simplification) Bill 2002 (Cth), introduced into Parliament in November 2002. Among other things, this Bill would exclude from the list of allowable matters the following: skill-based career paths, bonuses, long service leave, notice of termination of employment and jury service.
There are limited circumstances in which the AIRC may make an award that includes provisions not included in the list of allowable matters. This includes where it makes an order that the provision sought is an “exeptional matter”, however in such a case an award must comply with other strict criteria (s 89A(7) and s 120A). The AIRC may also include provisions in an award that do not relate to allowable matters if it is exercising arbitration powers after having terminated a bargaining period on certain grounds. These include that industrial action taken during bargaining is endangering the life, safety, health or welfare of the population or part of it, or that industrial action taken during bargaining is causing significant damage to the Australian economy (ss 170MW(3), 170MX and 170MY). Another area in which the AIRC may arbitrate without being constrained by the limitation in s 89A is where it exercises power under a dispute settlement procedure in a certified agreement. In these circumstances its powers of arbitration, if any, derive from the agreement of the parties, and so is not limited by the legislative framework: CFMEU v AIRC (2001) 203 CLR 645.
Certified agreements (see Part VIB) are collective agreements negotiated between workers and/or unions, and employers at the workplace or enterprise level. Certified agreements cover 35.2% of the workforce (Australian Bureau of Statistics, Employee Earnings and Hours, Australia, Catalogue No 6306.0, 2001 (Note that this figure includes workers covered by state-based registered collective agreements.) There are two streams of agreement-making under the Workplace Relations Act 1996 (Cth). Under Division 2 of Part VIB, agreements may be made with ‘constitutional corporations’, and under Division 3 of Part VIB, agreements may be made in settlement of industrial disputes (ss 170LO and 170LP). Only 14 per cent of agreements certified in the years 2000 and 2001 have been made under Division 3 (Commonwealth of Australia, Agreement Making in Australia under the Workplace Relations Act – 2000 and 2001).
Certified agreements made under Division 2 of Part VIB must be about “matters pertaining to the relationship between an employer who is a constitutional corporation or the Commonwealth and all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement.” (s 170LI) At the time of writing, there is an unresolved question whether the AIRC may certify an agreement that includes terms that do not answer this description. On one view, expressed obiter dicta by a Full Court of the Federal Court of Australia, it is appropriate to consider the agreement as a whole when deciding whether it answers the description in s 170LI: AMWU v Electrolux Home Products Pty Ltd  FCAFC 199. The decision is subject to an application for special leave to appeal to the High Court of Australia. On the other view, expressed by a Full Bench of the AIRC, every term in an agreement must answer the description, save for those terms that are appropriately ancillary to terms that do answer the description, or for terms that are mechanical: Re Atlas Steels Metals Distribution Certified Agreement, AIRC, Print 917092. The question has arisen for consideration mainly in relation to terms of agreements sought or gained by trade unions that offer a measure of union security. These include union dues deduction facilities, requirements that employers notify the union of the name and address of all employees, and provision for employees not union members to pay a bargaining agent’s fee. As noted, the Government has introduced legislation to attempt to make the last of these unlawful in any event (Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2002 (Cth)).
There are three types of certified agreement. The first permits unions to be parties to certified agreements provided they have at least one member working for the employer whose interests they are entitled to represent (s 170LJ). The second type is non-union agreements negotiated directly between employees and the employer (s 170LK). The third type is known as “Greenfields” agreements. These are negotiated between an employer and a union or unions in a workplace where no worker has yet been employed (s 170LL).
Certified agreements are subject to approval by the AIRC and a majority of employees covered by a proposed agreement and must be re-negotiated every three years. In general, agreements should cover only a single business, as defined, although a Full Bench of the AIRC may certify an agreement that covers more than one business where it is in the public interest to do so (ss 170L, 170LB and 170LC). A certified agreement must contain provision for resolution of disputes (s 170LT(8)). A certified agreement must pass the “no-disadvantage test” which requires that “on balance [the certification of the agreement would not result] in a reduction in the overall terms and conditions of employment of … employees under … relevant awards or designated awards and … any law of the Commonwealth, or of a State or Territory, that the Employment Advocate or the Commission (as the case may be) considers relevant” (s 170XA). Certified agreements prevail over State laws or employment agreements to the extent of any inconsistency, with some exceptions (s 170LZ).
State laws regulate additional collective bargaining regimes. See Industrial Relations Act 1996 (NSW); Industrial Relations Act 1999 (Qld); Industrial and Employee Relations Act 1994 (SA); Industrial Relations Act 1984 (Tas); Industrial Relations Act 1979 (WA).
12. Workers’ Representation in the Enterprise
Australian labour law has nothing like the forms of ‘worker representation’ that characterise the systems of many European countries. At the workplace level, workers may be represented by trade union delegates. Employers are bound to consult with trade unions when contemplating certain types of redundancies: if an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, the employer must consult with trade unions on measures to avert the terminations and measures to mitigate the adverse effects of the terminations (s 170GA).
The terms of certified agreements may provide for workplace committees with representatives of both the employer and employees, and commonly do so as part of dispute settlement procedures. Beyond this, however, forms of workplace representation tend to be on an ad hoc basis, although quite common. It was reported in the 1995 Australian Workplace Industrial Relations Survey that approximately 40% of workplaces had a consultative committee of some sort, that was not part of arrangements either to negotiate a certified agreement, or pursuant to an agreement.
Trade unions enjoy representation on the boards of government-regulated superannuation funds (Superannuation Industry (Supervision) Act 1993 (Cth) pt 9). Trade unions and employer representatives have an equal number of votes on the board. State laws regulating occupational health and safety commonly require the establishment of health and safety committees at the workplace, and in some cases give a privileged position to unions in their creation and election (see for example Occupational Health and Safety Act 1985 (Vic) s 37.
13. Strikes and Lock-Outs
Liability for industrial action in Australia arises under both Federal and State legislation and the common law. Federally, industrial action is only permitted during a “bargaining period”: Workplace Relations Act 1996 (Cth) s 170ML. Strikes or lock-outs carried out during a bargaining period constitute “protected action”; the Act confers limited legal immunity on protected action only (s 170MT). Generally speaking protected industrial action may not be taken during the life of a certified agreement or an AWA (ss 170MN and 170VU). At the time of writing, however, Federal law appears to permit protected industrial action during the course of a certified agreement if the subject matter of the negotiation is not already covered by an applicable agreement – Emwest Products Pty Ltd v AFMEPKIU  FCA 61. This decision is the subject of an appeal to the Full Court of the Federal Court of Australia that has been argued, but not decided. Three working days’ notice must be given before protected action can be taken (s 170MO) and the trade unions involved must have previously tried to genuinely reach agreement with the employer (s 170MP). The AIRC can suspend or terminate a bargaining period if it considers that the industrial action is threatening “to endanger the life, the personal safety or health, or the welfare, of the population or of part of it” or “to cause significant damage to the Australian economy or an important part of it”: s 170MW(3). The Commission can make an order stopping or preventing industrial action, and must hear and determine an application for such an order “as quickly as practicable” (ss 127(1), (3)). On application, the Federal Court may grant a permanent or interim injunction if it considers that a person or organisation is contravening a section 127(1) order. The AIRC may not make an order under s 127 in respect of protected action. As noted below in the discussion of the application of the industrial torts, however, it is possible to commence common law proceedings even in respect of protected industrial action.
It is also important to note that protection is only available for industrial action that falls within the definition of ‘industrial action’ in s 4 of the Act. For example, the Full Federal Court has held that the definition does not include picketing (Davids Distribution v National Union of Workers (1999) 99 IR 198). Thus, picketing action is subject to the full range of common law liabilities and sanctions (see below).
Apart from taking protected industrial action, however, the parties are not permitted to impose illegitimate pressure in the course of bargaining (s 170NC). As discussed below, this may include the strategic use of litigation during the course of bargaining.
Sanctions for breach of the Workplace Relations Act 1996 (Cth) in respect of industrial action include to injunctions, civil liability and dismissal (ss 127, 170ML, 170MT, 170MU, 170NC, 170ND–NH). Breach of an injunction may constitute a contempt of court, for which the available punishment includes fines and imprisonment.
Industrial action is also proscribed where it is in support of a claim for strike pay (ss 187AB, 166A) or involves a secondary boycott (s 170MM). Secondary boycotts are also prohibited outright: Trade Practices Act 1974 (Cth) ss 45D–45EA; penalties for breach of these provisions include fines, claims for damages and the grant of injunctions. Sympathy action is also effectively prohibited under the Federal Act: ss 170MW(4), (6).
Since 1996 the several conservative Federal governments that have held office have attempted to introduce various amendments to the scheme of the Workplace Relations Act 1996 (Cth) as it regulates the taking of industrial action. As noted above, the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 would limit the ability of unions to take protected industrial action during the course of multi-emploer bargaining. There have been several attempts to introduce provisions that would require a secret ballot of employees as a precondition to industrial action being protected. (See for example the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 (Cth)). Many of these attempted amendments have been repeatedly rejected by the Senate, and it would not appear that there is a significant prospect of them becoming law in the near future, if at all.
As noted, the common law also applies to industrial action in Australia. In particular, the British industrial torts appear to form part of Australia’s common law, subject to certain State and federal statutory limitations. Thus, industrial action will usually amount to the torts of contractual interference, conspiracy, intimidation and unlawful interference; picketing will normally give rise to liability in other torts including public and private nuisance and trespass (among others). Remedies for the commission of these torts could be injunctive or pecuniary. Under the Workplace Relations Act 1996 (Cth) no action may be taken in tort without a certificate issues by the AIRC under s 166A. This is subject to certain exceptions, including conduct causing personal injury, that is wilfully destructive of property, or that occurs during a demarcation dispute (s 166A(2)).
Under s 166A the AIRC is to attempt by conciliation to stop the conduct in question, but if it cannot, or if the conduct continues for more than 72 hours, it is required to issue a certificate. The purpose of s 166A is to attempt to restrain parties to disputes that have given rise to industrial action from seeking injunctive relief in the courts, instead of focusing on resolution of the dispute. Apart from the limitation inherent in the requirement that the AIRC give a certificate if the action has not stopped after 72 hours, a number of decisions in State Supreme Courts have held that injunctive relief is available to restrain industrial action, without a certificate under s 166A, on the basis that an injunction is an equitable remedy in aid of an action in tort, not itself an action in tort, which is what requires a certificate under s 166A. A number of Federal Court decisions have suggested that this is not accurate. As few cases of this nature proceed to trial, there is no finally decided view available on the point.
A further limitation on the capacity of s 166A to restrain parties from having resort directly to the courts is that it applies to “conduct . . . in contemplation or furtherance of claims that are the subject of an industrial dispute”, and makes no reference to or exclusion of protected industrial action. Taken together with the provision that operates to confer immunity (s 170MT), a certificate may therefore be granted where a party is taking protected industrial action, and the action may proceed, at least to determine whether the industrial action is in fact protected. At the same time, the Federal Court has held that it may issue an ‘anti-suit’ injunction to restrain an employer from taking action in tort in a State Supreme Court, after receiving a certificate under s 166A from the AIRC. In some cases the Court has held that an employer, by seeking the certificate under s 166A, is arguably breaching the prohibition in s 170NC on action to coerce agreement (see for example AWU v Yallourn Energy (1999) 95 IR 207).
Lock-outs are effectively permitted by federal legislation so long as they constitute “protected action”: s 170ML(3). Under the Workplace Relations Act 1996 (Cth), the procedural requirements that apply to protected industrial action by employees apply also to employers’ lock-outs of employees.
Strikes in essential services are regulated at Federal and State level. The power of the AIRC to terminate a bargaining period (and thereby to bring to an end the right to take protected industrial action) may be used in essential services, although the provisions are expressed more broadly than that. The Crimes Act 1914 (Cth) bans strikes where an industrial dispute is “prejudicing or threatening trade or commerce with other countries or among the States” (s 30J). Furthermore, boycotts are prohibited if they eventuate in the obstruction or hindrance of the Federal Government’s attempts to provide services or transport goods or persons in international trade: s 30K.
Queensland law permits the deregistration of a trade union if its members have prevented or interfered with trade or commerce or the provision of a public service (Industrial Relations Act 1999 (Qld) s 638). South Australian legislation directly applies the secondary boycott prohibitions contained in the Workplace Relations Act 1996 (Cth) in the State: Industrial and Employee Relations Act 1994 s 222. The New South Wales Parliament has enacted laws restricting strikes in a defined number of services (Essential Services Act 1988 (NSW) s 4). Victorian law permits the prohibition of strikes in “vital industries”; these are industries declared to be so by the Governor-in-Council: Vital State Industries (Works and Services) Act 1992 (Vic).
14. Settlement of Individual Labour Disputes
Depending on the jurisdiction, individual labour disputes may be resolved either by access to a specialised tribunal, a specialised court, or a common law court of general jurisdiction. In the Federal system, individual disputes over the application of awards or agreements would be subject in the first instance in many cases to dispute settlement procedures contained in the applicable award or agreement. In the case of disputes over rights (for example, under-payment of wages), individual disputes would need to be pursued in the Federal Court of Australia, or in a State court of competent jurisdiction. (For constitutional reasons, the AIRC may not exercise judicial power, and so cannot be invested with jurisdiction to resolve disputes over rights, whether individual or collective). As noted above, there are however particular provisions of the Workplace Relations Act 1996 (Cth) that regulate termination of employment, under which individuals may have access to the jurisdiction of the AIRC for resolution of this particular type of dispute.
15. Web Links
- Australasian Legal Information Institute (for state and federal legislation and cases)
- Federal Government portals to bills, legislation and case law
- Department of Employment and Workplace Relations
- Australian Council of Trade Unions
- Australian Centre for Industrial Relations Research and Training (University of Sydney)
- National Occupational Health and Safety Commission
- Human Rights and Equal Opportunity Commission
- Employment Advocate
Books, Journal Articles, Working Papers
- Australian Bureau of Statistics, Employee Earnings and Hours: Australia (2000, ABS Catalogue 6306.0)
- ACIRRT (Australian Centre for Industrial Relations Research and Training) (University of Sydney), Australia at Work (1999)
- Breen Creighton, ‘One Hundred Years of the Conciliation and Arbitration Power: A Province Lost?’ (2000) 24 Melbourne University Law Review 839
- W B Creighton, W J Ford and R J Mitchell, Labour Law: Text and Materials (2nd ed, 1993)
- Breen Creighton and Andrew Stewart, Labour Law: An Introduction (3rd ed, 2000)
- Stephen Deery and Richard Mitchell (eds), Employment Relations: Individualisation and Union Exclusion (1999).
- A Forsyth, “Re-regulatory Tendencies in Australian and New Zealand Labour Law” (Working Paper No 21, Centre for Employment and Labour Relations Law, Faculty of Law, The University of Melbourne, 2001)
- M Gardner and G Palmer, Employment Relations: Industrial Relations and Human Resource Management in Australia (2nd ed, 1997)
- R Hunter, Indirect Discrimination in the Workplace (1992)
- M Lee and P Sheldon, Workplace Relations (1997)
- J J Macken, P O’Grady, C Sappideen, and G Warburton, The Law of Employment (5th ed, 2002)
- R M McCallum, G McCarry and P Ronfeldt, Employment Security (1994)
- R C McCallum and M J Pittard, Australian Labour Law: Cases and Materials (3rd ed, 1995)
- D R Nolan, The Australasian Labour Law Reforms: Australia and New Zealand at the End of the Twentieth Century (1997)
- Senate Economics Reference Committee, Report on Consideration of the Workplace Relations and the other Legislation Amendment Bill 1996 (AGPS, August 1996)
- M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990)
- CCH, Australian Labour Law Reporter (4 volumes)
- CCH, Australia and New Zealand Equal Opportunity Law and Practice (2 volumes)
- Butterworths, Industrial Law – Federal
- CCH, Australian Occupational Health and Safety Law (4 volumes)
Australian Journal of Labour Law, Journal of Industrial Relations, Labour and Industry, Journal of Occupational Health and Safety – Australia and New Zealand