Explain the constitutional basis for the Fair Work Act 2009 (

 
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 Commonwealth1
 1 New South Wales vs Commonwealth [2006] HCA 52.
wherein the constitutionality of the Work Choices Act 2005 was discussed and adjudicated upon
by the Hon’ble High court of Australia.
Employment Law 3
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 Act2
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
. 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.
 2 Section 51 (xx) of the Constitution of commonwealth of Australia.
Employment Law 4
is pertinent to note that there has been a significant change in the fair Work Act, 2009 when
compared to the earlier labour welfare legislations in place in the Commonwealth of Australia, as
earlier common law contracts pertaining to labour contracts were allowed in the commonwealth
of Australia. With advent of the Fair Work Act, 2009 even though common law contracts are
allowed, the same are abolished in case of individual statutory contracts. Even in cases wherein
the common law contracts are allowed, the terms and conditions offered in the common law
contracts cannot be less beneficial than the terms and conditions that are guaranteed under the
National Employment Standards.
The National Employment Standards as per the Fair Work Act, 2009 establish a
minimum or basic safety net for welfare of the workers and employees so that the employees are
guaranteed the minimum set of safeguards and in this regard, the Fair Work Act, 2009 has been
remarkable. The most remarkable feature of this statute has been the scope of the statute because
it applies to the Constitutional Corporations and these corp