澳大利亚劳工法

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 Jane Hodges Last update: in 2002 In this page l General Legal Framework l Labour Legislation l Contract of Employment l Hours of Work l Paid Leave and Other Leave Entitlements l Maternity Leave and Maternity Protection l Minimum Age and Protection of Young Workers l Equality l Wages l Regulation of Trade Unions and Employer Organisations l Collective Bargaining and Agreements l Workers’ Representation in the Enterprise l Strikes and Lock-Outs l Settlement of Individual Labour Disputes l Web Links l Bibliography   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. l Commonwealth Constitution l Commonwealth Attorney-General’s Window on the Law (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. l Australian Industrial Relations Commission l Federal Court of Australia l Employment Advocate l Australian Bureau of Statistics l Public Service Act1999 (Cth); Trade Practices Act 1974 (Cth); Workplace Relations Act 1996 (Cth) l 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 [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). ? Workplace Relations Regulations 1996 (Cth) ? Proposed amendments to the Workplace Relations Act 1996 (Cth): or ? 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.