1、中文 3473 字 附录 A National Labour Law Profile:Australia University of Melbourne,Victoria,Australia and Jane Hodges 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 concern
2、ed 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 indu
3、stries 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 Ref
4、orm 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
5、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 en
6、forcement 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 pass
7、ed 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 45D45EA). The present conservative-led government is currently attempting to significantly amend the Act. In recent years, uni
8、on 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 Statis
9、tics notes that the decline in union density “partly reflects the changing full-time/part-time working patterns of Australias 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 o
10、f 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 indivi
11、dual agreements may be partly to blame for declining union membership in Australia. Contract of Employment 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
12、 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 co
13、nsiderable 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 comm
14、on 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
15、 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 ca
16、n 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 co
17、mparatively 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 not
18、ice, 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 empl
19、oyer 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 a
20、ll 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 unlik
21、ely that the contract between the original employer and employees remains on foot. Nevertheless, the parties often treat the original contract as continuing. Moreover, theWorkplace Relations Act 1996 (Cth) provides that any federal awards or certified agreements binding the original employer will bi
22、nd 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 se
23、t out in awards and statutory employment agreements. The Federal Act also permits payment of wages in lieu of notice. In cases of an employers insolvency, the Corporations Act 2001 (Cth) provides that employees are to be ranked ahead of other unsecured creditors, but not secured creditors (s 556, an
24、d see Part 5.8A). The Commonwealth has also established a scheme that provides limited protection for employees entitlements in the event of their employers insolvency ( General Employees Entitlements Scheme ). The usual remedy in cases of unjustified dismissal is the payment of damages. The amount
25、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 workers employment legitimately. This amount may be reduced
26、 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 g
27、enerally 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. Legislative Intervention The common law remedies for breach of an employment
28、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 empl
29、oyment 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 (Termina
30、tion 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
31、(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 casu
32、als 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 allegedunlawful termination, except those specifically excluded (s 170CB(3). Employees excluded from the application of the unlawful t
33、ermination 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, 30BA30BC. These statutes allow proceedings to be brought in the various State tribunals (i
34、n 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: t
35、heir 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 employees race, colour, sex, sexual preference, age, phy
36、sical 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
