National Labour Law Profile: Australia
Contributed by: Colin Fenwick, Senior Lecturer, Centre for Employment and Labour Relations Law School, University of Melbourne, Victoria, Australia and
Last update: in 2002
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
(a) Overview
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.
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 [2001] 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).
Federal Termination of Employment Legislation
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).
State Termination of Employment Legislation
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).
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).
8. Equality
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).
9. Wages
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 [2002] 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 [2002] 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.
At the State level, individual disputes may be resolved in either
the State’s specialist industrial tribunal (see Part 2 above) or
in the common law courts of general jurisdiction.
15. Web Links
16. Bibliography
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)
Looseleaf Reporters
- 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)
Journals
- Australian Journal of Labour Law, Journal of Industrial
Relations, Labour and Industry, Journal of
Occupational Health and Safety – Australia and New Zealand
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