Australian labour law

Australian labour law consists of a complicated combination of Commonwealth laws, state laws, and common law inherited from the United Kingdom as adapted and developed by Australian courts. It has had a unique development that distinguishes it from other English-speaking jurisdictions. This page focuses on the Commonwealth labour laws.

In Australia, any field that the Constitution does not give the Commonwealth power to make laws about is assumed to be a field the states can make laws about. In labour law, the result is a dual structure, where some employment issues and relationships are governed by Commonwealth laws, and others are governed by state laws or the common law.

It was originally thought that the Commonwealth's power to make laws about labour law was extremely narrow, and only to be that power provided by section 51(xxxv) of the Constitution, which gives the Commonwealth power to make laws "in relation to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state".

Based on this constitutional power, the Commonwealth Conciliation and Arbitration Act 1904 sought to introduce the rule of law in industrial relations in Australia and, besides other things, established the Commonwealth Court of Conciliation and Arbitration. Its functions were the hearing and the arbitration of industrial disputes, and to make awards. It also had the judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law.

In disputes involving a company in a single state either, a union or industrial organisation will rope them into a federal award by arguing that they are part of an industry in which a dispute extending beyond the limits of any one state exist. (This can be done by finding another company which did similar work and serving them with a log of claims concurrently or by virtue of a company's membership of a peak industry body.) Alternatively, if the company was not covered by a federal Award it would be covered by the various States' industrial relations systems, and disputes are conciliated or arbitrated by the state industrial relations commissions which would create an industry rule Award.

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