[10] Introduced in 2008, the Act was explained as creating 'a national workplace relations system that is fair to working people, flexible for business and promotes productivity and economic growth'.

[9] This policy was formalised in April 2007 through Forward with Fairness, detailing 'Labor's plan for fairer and more productive Australian workplaces.

[14] A senior member of the Fair Work Commission acknowledged in 2014 that Australia's workplace laws are complex, often requiring specialist legal advice.

[18] Collective bargaining is a mechanism which allows employees, employers and representational parties to express their objectives with respect to work.

[26] The BOOT involves the Fair Work Commission assessing a proposed agreement and ensuring it provides conditions more favourable than current legal minimum entitlements.

The BOOT is different to its predecessor, the 'no disadvantage test' which allowed passing of a collective agreement provided it would not result in conditions less favourable to those otherwise applicable.

The Industrial Relations Minister Christian Porter in 2020 introduced legislation designed to weaken the BOOT, but withdrew it in March 2021 in the face of opposition from independent crossbenchers.

[28] The legislation would have allowed the Fair Work Commission significant discretion to approve an agreement that places workers on conditions less favourable than they otherwise would be entitled.

[34] However, Section 229 of the Act states it may not be necessary to comply with the notice requirements should the Fair Work Commission be 'satisfied that it is appropriate in all the circumstances to do so'.

[34]If the party does not respond appropriately to the written notice, the Fair Work Commission can make a bargaining order.

[35] Should the relevant party continue to ignore the good-faith requirements following this order, the Fair Work Commission can issue a serious breach declaration.

[37] The Act stipulates that employers must take all reasonable steps to notify employees of their right to a bargaining agent not later than 14 days after the notification time of the agreement.

It is not sufficient merely to claim adverse action on the basis of possessing a protected characteristic and then facing adverse action, as demonstrated in Philip v State of NSW, where an individual applied for a position in the New South Wales police force, and during interviews had been recorded in file notes as having limited English skills, an accent, and was difficult to understand.

The individuals refusal of employment was found not to constitute a breach of the general protections provision as the decision was not exclusively based on a lack of English, but also an 'abrasive' attitude.

[53] This led to both federal and state parliaments having the power to legislate with respect to industrial relations, leading to a 'dual system' that had 'unnecessary complexity and technicality'.

[55] The Australian Constitution provides no direct power for the Commonwealth Parliament to make laws with respect to industrial relations.