Analysis of Law-Making Powers: Commonwealth vs. State in Business Law

This report provides an analysis of the crucial relationship between the law-making powers of the Commonwealth and the States in Australia, as defined by the Australian Constitution Act 1900. It explores the distribution of power, particularly focusing on Section 51, and its impact on various organizations, individuals, and parties. The report details how the Commonwealth and State powers influence employment laws and labor relations, highlighting the role of the Fair Work Act and related amendments. It also discusses the challenges arising from this balance of power, such as potential duplication of regulations, compliance complexities, and public confusion. Despite these issues, the report emphasizes the importance of this balance in protecting employee rights and addressing key issues within the country. The report references key legislations, amendments, and case law, such as the Fair Work Amendment Bills and the Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited case, providing a comprehensive overview of the legal landscape.

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Business Law Assignment

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There is a crucial relationship between the law making power of the Commonwealth and
the State which affects different organisations, individuals and parties operating in the
country. This power is distributed by the Australian Constitution as per the provisions given
in the Australia Constitution Act 1900. Section 51 of the Act specifies the key powers of the
Commonwealth along with the State to form policies in the residual areas and recognition
the State constitutions (Harris, 2013). The objective of this distribution of power is focused
on ensuring that conflict did not arise between the parties in relation to formation of new
laws and policies. Based on these distributions of powers, the State continues to serve as
the primary mechanism of government in Australia. In the case of employment laws, this
distribution of powers plays a significant role while governing the relationship between
corporations and their employees.
However, there has been a gradual shift in the powers given to the Commonwealth which is
achieved through various amendments by the Federal government (Doeker, 2012). There
are six States and two Territories in Australia, and although these Territories are self-
governing, however, the Commonwealth has the right to provide policies which can
override any laws implemented by the Territory. The Commonwealth Constitution is
responsible for modifying the referendum under which many major amendments can be
passed through using the electors in a majority of States and Territories. As per the balance
of powers, the Head of Commonwealth is the Prime Minister who holds office for no longer
than three years. The labour relations policies are complicated in Australia based on the
actions of the Federal system in order to function alongside the State-based legislative
schemes which are implemented by the government (Johnstone et al., 2012).

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The sources of labour law are balanced between the policies given by the Commonwealth
and the State. The terms and conditions included in an employment contract are governed
by policies provided by both the Commonwealth and the State. Co-existence between the
schemes implemented by the Federal and State government are supplemented by the
common law and bodies such as AIRC (Australian Industrial Relations Commission). The
Workplace Relations Act 1996 (Cth) provide three methods which can be used by employers
in order to fix the terms and conditions of the employment (Macdonald and Charlesworth,
2013). Recent amendments which are proposed in the Fair Work Amendment (Family and
Domestic Violence Leave) Bill 2018 (Cth) are passed by the Commonwealth which is focused
on addressing family related issued by the family.
These amendments are imposed by the Commonwealth which is targeted on reducing
domestic violence issues by proving leave to employees. Another key amendment is the Fair
Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 which provides
that fair commission should be given to the employees despite minor procedural and
technical errors. A recent judgement of Darren Lacey and Chris Kandelaars v Murrays
Australia Pty Limited; Andrew Cullen [2017] FWC 3136 highlighted that the State courts are
bound by the guidelines issued by the Commonwealth in order to change the role of
workplace bullying and determining whether these laws are sufficient to protect victims
(PCC, 2017).
There are various issues which arise due to the balance between the law-making powers of
the Commonwealth and the State. Although the historical federalism has continued to
‘work’ in Australia, however, there are specific growing concerns regarding critics who have
argued that it leads to duplication of policies and regulations between the State and Federal

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levels of government. It also leads to compliance with multiple jurisdictions which resulted
in increasing the overall costs. It is also a major contributor in the public confusion regarding
which level of government is responsible for what services and whether there are any
overlapping responsibilities (Florey, 2012). Another issue is tendency of the government to
shift their blame for the failure of policies on different level of jurisdiction which creates
challenges for the public. All these factors resulted in questioning whether the balance
regarding the law-making powers of the State and the Commonwealth is justified or not.
However, the balance between the law making power of the Commonwealth and the State
ensures that key issues relating to protection of employees rights are formulated which
address major issues in the country (Loveland, 2018). Therefore, it resulted in benefiting the
employees operating in the country and ensuring that their rights are not violated by the
employers.

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References
Doeker, G. (2012) The treaty-making power in the Commonwealth of Australia. Springer.
Florey, K. (2012) State Law, US Power, Foreign Disputes: Understanding the Extraterritorial
Effects of State Law in the Wake of Morrison v. National Australia Bank. BuL Rev., 92, p.535.
Harris, B. (2013) a new constitution for Australia. Abingdon: Routledge.
Johnstone, R., McCrystal, S., Nossar, I., Quinlan, M., Rawling, M. and Riley, J. (2012) Beyond
employment: the legal regulation of work relationships. Alexandria: The Federation Press.
Loveland, I.D. (2018) Constitutional Law. Abingdon: Routledge.
Macdonald, F. and Charlesworth, S. (2013) Equal pay under the Fair Work Act 2009 (Cth):
mainstreamed or marginalised. UNSWLJ, 36, p.563.
PCC. (2017) Changing the role of a workplace bully was sufficient to protect victims. [Online]
Available at: https://www.pcclawyers.com.au/news-centre/recent-cases/346-changing-the-
role-of-a-workplace-bully-was-sufficient-to-protect-victims [Accessed 9th January 2018].