Reviewability of Employment Decisions Under Australia's Hybrid Workplace Law
Australian Journal of Administrative Law, 16 4: 196-199, 2009
Posted: 12 Jun 2015
Date Written: 2009
From the perspective of administrative law, the question of the reviewability of employment decisions has typically come in one of two forms. One is public sector employment. Here, by definition, governments make decisions affecting individuals. Here, the central issue is the degree to which traditional administrative law review should apply or whether particular public sector employment boards and review processes should be the extent of an aggrieved employee’s options. Thus, for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) exempts Australian Public Service personnel decision-makers from the general obligation to give reasons (Sch 2 Items (u)-(y)).
The second is within traditional collective labour law, as personified in the specialist Industrial Relations Commissions and their arbitral powers to resolve disputes through making awards. Here, although the power was not judicial, the focus of reviewability was really on a kind of appeal right. That is, of the ability of a matter to be argued, beyond a rehearing before a commission Full Bench, into the court hierarchy, through prerogative writs and arguments about jurisdictional error overcoming the ouster clauses otherwise giving finality to award orders (eg, Workplace Relations Act 1996 (Cth), s 150). Section 563(b) of the Fair Work Act 2009 (Cth) explicitly envisages Federal Court jurisdiction in writs of prohibition and mandamus or injunction applications against officials of Fair Work Australia, the successor to the Australian Industrial Relations Commission. However, since the reforms begun in 1993, and accelerated in 1996, the statutory focus of private employment law in particular has been not on awards, and not necessarily even on collective arrangements, but on agreements made by the parties under statute, subject to some minimum standards.
JEL Classification: K00
Suggested Citation: Suggested Citation