Corporations Powers. ~ Can the State regulate the employer employee relationship?

1. In 2001 the states referred their corporations powers to the Commonwealth by engaging section 51(xxxvii).


   (xxxvii)  matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; 


2. All States and Territories created their own Corporations (Commonwealth Powers) Act 2001 and referred their corporations powers to the Commonwealth so uniform corporations laws could apply throughout the Commonwealth.


3. In 2015 the High Court case known as the 'Queensland Rail Case' provided the following outcome. That corporations with more than 5% of their business in trading were deemed to be Constitutional Trading Corporations for the purposes of section 51(xx) of the Constitution, and therefore those trading corporations fell under a national scheme of arbitration. My understanding of this is that the employer-employee relationship (Which is private in nature) was governed by the Federal scheme of corporations laws as requested by the States in 2001 via s51(xxxvii). The High Court also made the following ruling in the Queensland Rail case, that the Qld Act imposing State arbitration laws on Qld Rail were inoperable by virtue of s109 of the Constitution, I believe the State health Directions also fall into this category.


4. Now we find the State attempting to govern the private employer-employee relationship via State WorkPlace Safety laws. Work Safety laws do not extend to the health of the employee, they only have the power to regulate the workplace itself, you never have to go to the doctors in your life as this relationship is voluntary and by consent and like the Health laws of the State, they only have a power to regulate the Health Department and the services provided, and to regulate the practitioners who provide such services but fail to have the power to regulate the patient. This is equally true for the employer employee relationship which can only be governed by the Commonwealth scheme.


As you can see below a body corporate that is incorporated in Australia or a State is to be taken to be incorporated in Australia and therefore comes under the Commonwealth scheme and not State.



CORPORATIONS ACT 1989 No. 109 of 1989 - SECT 76

Incorporated in Australia

76. (1) A body corporate that is a company, or is incorporated by or under a
law of the Commonwealth, is incorporated in Australia.

(2) A body corporate incorporated in, or by or under a law of, a State or
Territory is incorporated in Australia. 

Each state has it own Corporations Powers Act referring its powers to the Commonwealth to which the Corporations Act 2001, the Fair Work Act etc were written for the uniform operation of corporations laws throughout the Commonwealth.