Before the commencement of WorkChoices the Commonwealth relied on the conciliation and arbitration power (section 51(xxxv) of the Constitution) which provides that the Commonwealth may make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." .
Court decisions may be required to establish whether an organisation falls under this definition; areas of contention include local government and incorporated associations that undertake some trading activities, such as not-for-profit organisations.