Australian labour law: Difference between revisions

Rights and duties of workers, unions and employers in Australia

Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. The main source of law is the Commonwealth (the Australian federal government) Fair Work Act 2009, while state and territory laws can add to protection, and judge-made common law provides a default set of rights. Australian labour law shares a heritage with laws across the Commonwealth of Nations, UK labour law and standards set by the International Labour Organization, the Australian legislature and courts have a built a comprehensive charter of rights at work.

History[edit]

Australia’s first federal labour rights followed the Constitution of Australia in 1901, yet the law had long regulated work in colonies, often violently suppressing labour freedom. The land of Australia was forcibly settled by British Empire migrants, who achored in Botany Bay and then declared they held possession of the eastern continent in 1780. After losing territory to the United States in the American War of Independence, Britain established a penal colony of 1400 settlers and convicts in Sydney in 1788. Before colonisation, there were around 1.2 million indigenous Australians, but contact with European settlers killed up to 80% of people through smallpox and other diseases.^[2] In the Australian frontier wars over the next century, around 115,000 native people were massacred or killed, particularly in Queensland.^[3] Indigenous Australian labour was typically organised on hunter-gathering lines, and was cooperative within and between tribes, and through trade among national groups.^[4] By contrast, British labour was primarily forced, with a constant supply of prisoners from the British Isles whose crimes were often related to poverty or trying to seek better wages. For example, in the R v Lovelass a group of five farm workers in Tolpuddle, Dorset, who had organised a trade union, were convicted under the Unlawful Societies Act 1799 and sentenced to transportation to Sydney.^[5] Mass popular support and protest meant that these five became known as the Tolpuddle martyrs, and they were eventually pardoned.^[6] The population tripled to more than a million migrants over the Australian gold rushes of 1851, and protests broke out against the government’s attempt to impose a licence fee for working to search for gold (whether or not gold was found). In 1854, when the fee was £2 for 3 months, strict and brutal enforcement led to the Eureka Stockade at Ballarat, where rebels demanded an end to the fee, democratic representation in the government, and took up arms. Though the stockade was broken, and its leaders killed or arrested and put on trial, juries acquitted all, the gold licence fee was replaced with an export duty, and miners won the right to vote in the Victorian Legislative Assembly. Yet labour rights throughout Australian colonies were scant. Laws were systematically discriminatory, particularly based on gender and race, entrenched in the White Australia policy from the Immigration Restriction Act 1901. The right to organise unions was precarious, without any positive right to take collective action for fair work, and there were no legislative rights to fair wages or job security.^[7] Instead, responding to the 1890 Australian maritime dispute, the 1892 Broken Hill miners’ strike and others, South Australia, New Zealand, New South Wales, and finally the federation sought to replace industrial conflict and strikes with a system of arbitration.^[8]

At Australia’s federation in 1901, the Constitution section 51(xxxv) empowered the making of “laws for the peace, order, and good government of the Commonwealth with respect to… conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state”.^[10] This was used to pass the Commonwealth Conciliation and Arbitration Act 1904 where a “dispute” would trigger federal jurisdiction between trade unions and employers.^[11] The Commonwealth Court of Conciliation and Arbitration (CCCA) could hear disputes, and make “awards” for fair wages and conditions across an industry if there was no agreement reached, or regulate any “industrial matters”.^[12] With…