Australia used to be part of the British colony up until the 1900s when the Australian Constitution took effect by the passing of the British Act of Parliament. Now, Australia is an independent nation with ten territories and six states, and has its own central government known as the Commonwealth government.
There are four main types of legal obligation within Australia, namely, legislation, common law, awards and collective agreements, and international standards.
This discussion will however only provide coverage on two of the four sources of legal obligation, legislation and common law in relation to a typical Australian workplace.
Legislation in relation to employment refers to law passed by both federal and state parliaments dealing with employment relationships.
The State Industrial Relations (IR) Commission deals with unincorporated employers such as sole-traders and partnerships, in five of the six states, excluding the State of Victoria. Fair Work Australia (FWA) formerly known as the Australian Industrial Relations Commission (AIRC) on the other hand deals with incorporated and federal government employers.
The reason for Victoria’s exemption in the coverage of state government law is that the State of Victoria surrendered its employment jurisdiction to the Commonwealth government in exchange for monetary assistance when the state was in debt.
Legislation plays a significant role in the Australian workplace’s regulations as it provides certainty in areas that common law is unable to provide a clear answer, in other words, legislation helps to “fill in the gaps”.
Legislation also assists in establishing new rights and obligations for employment contracts to abide by. Take for example, in the past, common law did not have any principles regarding equal opportunities, thus the parliaments then imposed that legislation to protect the Australian community and its workers.
Legislation can render contents of an employment contract as invalid if it goes against legislation provisions. This applies to parties involved in an employment relationship, governing the rights and remedies of each party in the contract.
For example, if there are no contents on workman’s compensation mentioned within a contract, and a worker gets injured during the course of work, the worker would still be eligible to apply to workman’s compensation legislation for any needed assistance and remedies.
In addition, legislation, or federal law has the power to imply terms into a contract despite parties’ intention. Parties, whom are bounded by the contract, cannot bypass the legislation provisions in an employment contract once it has been issued by the court.
However, the contract must first exist in order for legislation to imply and exercise its rights and obligations into a contract, as defined in the case of Amalgamated Collieries of Western Australia Ltd versus True (1938), which states that, “ award obligations could be imported into employment contracts… the right to payment of award wages is really a term imported by statute into the contract of employment, and imported independently of the parties”.
3.0 Common Law
In the past, the Australian common law system adopted a significant amount of its case laws from the United Kingdom being formally colonized by the British. However, only after the year 1968 did Australia developed its own common law system.
Although presently Australia’s common law system still consists of case laws imported from Britain, it is also made up of decisions made by the High Court of Australia, the Federal Court of Australia, the Supreme Courts of the states and territories, and the specialist industrial tribunal and courts. In addition, the Australian courts looked at case laws from other countries such as New Zealand and Canada, but only as reference, and are not applied directly.
Common law works on the principle of precedence....