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Employment Law Explain the constitutional basis for the Fair Work Act 2009 (Cth) with reference to the Australian Constitution and discuss the relationship with Australian common law, with reference to the National Employment Standards. The Fair Work Act, 2009 is a labour welfare legislation aimed at improving the relations between employees and employers so that productive workplace relations can be formulated which would further help in promoting national economic prosperity and promoting amicable relations between the Australians (Chapman, 2009). In this regard, it is submitted that the Fair Work Act, 2009 has been an extension of the process of amendments which also came under a lot of fire recently with the recent amendments which are popularly known as Work Choices Act and the amendments were brought forth in 2005. The amendments brought forth in the Work choices Act were criticized as being against the interests of the employees and workers and in favour of the employers and businesses (Riley, 2010). There was a lot of debate about the constitutionality of the Work Choices Act and it was alleged that the provisions of the Work Choices act were contrary to the Constitution of Commonwealth of Australia. The reason why this submission is being made is because the constitutional basis for the Fair Work Act, 2009 (Chapman, 2009) is same as that of Fair Choices Act, 2005.To develop a better understanding of the constitutional basis of the Fair Work Act, 2009, it is important to discuss the landmark case of New South Wales vs Commonwealth 1 wherein the constitutionality of the Work Choices Act 2005 was discussed and adjudicated upon by the Hon’ble High court of Australia.
New South Wales vs Commonwealth  HCA 52.
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The basic point of contention in the instant case was the expansion of federal powers regarding the labour welfare legislation in the form of Work Choices Act, 2005. The major point of contention was the purported elimination of the State Territory jurisdiction to legislate upon the labour welfare legislation and such powers were to be shifted to the federal parliament. Various states of the Commonwealth of Australia and major trade unions of the Commonwealth of Australia were parties to the aforementioned case in which the major points of contention stated above were debated and adjudicated upon (Lucev, 2009). The Commonwealth of Australia contended that the Commonwealth and federal parliament was well within its powers as per the Constitution of commonwealth of Australia. The Government’s thrust was in the argument that it was well within its powers to legislate upon any topic or law which created, altered the provisions pertaining to the conduct of employees of corporations, laws pertaining to business functions and various corporation’s activities and relationships. The Government is also empowered to legislate upon issues protecting the corporations from various kinds of loss or damage. These powers are derived from (WASF, 2009)Section 51 (xx) of the Commonwealth of Australia constitution Act 2. The provisions of the aforementioned section of the Constitution of Australia are often known as “Corporation Powers” and they bestow upon the Commonwealth and Federal parliament to legislate upon topics pertaining to foreign corporations, trading and financial corporations and this contention of the Commonwealth of Australia was upheld by the Hon’ble High Court of the Commonwealth of Australia vide a majority judgement in favour of the commonwealth government. Accordingly, it can be stated that the constitutional basis of the Fair Work Act, 2009 is section 51 (xx) (WASF, 2009) of the Commonwealth of Australia Constitution. In this regard, it 2
Section 51 (xx) of the Constitution of commonwealth of Australia.
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is pertinent to note that there has been a significant change in the fair Work Act, 2009...
References: Chapman, A. (2009). Protections in Relation to Dismissal: From the Workplace Relations Act to the Fair Work Act. UNSW Law Journal , 746-771. Johnstone, R., & Quinlan, M. (2005). The OHS Regulatory Challenges Posed By Agency Workers: Evidence from Australia. National Research Centre for OHS Regulation , 2-33. LSCSA. (n.d.). Fair Work Act 2009 . Retrieved December 1, 2010, from Legal Services Commission of South Australia: http://www.lawhandbook.sa.gov.au/ch16s03s01.php Lucev, T. (2009). Explaining aspects of the Fair Work Act 2009. Australian Human Resources Institute – Human Resources and Industrial Relations Special Interest Group (WA) , 1-28. Pickering, M. (2010, April 15). Employment Law - Unfair dismissals under the Fair Work Act - Common Law Contracts. Retrieved December 1, 2010, from QLAC Lawyers Pty Ltd: http://www.laclawyers.com.au/document/Employment-Law-__-Unfair-dismissals-under-the-FairWork-Act-__-Common-Law-Contracts.aspx Riley, J. (2010). Transfer of Business under the Fair Work Act. Sydney Law School Legal Studies Research Paper , 2-12. WASF. (2009, May). WA Sports Federation Understanding the Fair Work Act 2009. Retrieved December 1, 2010, from WA Sports Federation: http://www.wasportsfed.asn.au/downloads/Understanding%20the%20Fair%20Work%20Act.pdf
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Table of Cases 1. Swift Placements Pty Ltd v WorkCover Authority of New South Wales
(2000) 96 IR 69, Retrieved from National Centre for OHS Regulation website: http://ohs.anu.edu.au/publications/pdf/wp%2038%20%20Johnstone%20and%20Quinlan.pdf 2. New South Wales vs Commonwealth  HCA 52, Retrieved
December 1 from Austlii website: http://www.austlii.edu.au/au/special/industrial/workchoices.html
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