Has award stripping thwarted a unitary system?


Has award stripping thwarted a unitary system?

The existence of state IR jurisdictions in the future could solely depend on whether they continue to provide common rule awards, a Queensland barrister has told a conference of IR delegates.


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The existence of state IR jurisdictions in the future could solely depend on whether they continue to provide common rule awards, a Queensland barrister has told a conference of IR delegates.

Speaking at the National IR Society conference on the Gold Coast last weekend, Andrew Herbert said that if it was not for award stripping at the federal level, he believed we would not have a state system now - apart from in NSW.

And if award stripping was reversed, he predicted, there would not be a state system within five years. 'The day has now arrived for the consolidation of all jurisdictions into one stream,' he said.

Herbert said the balance between the state and federal IR jurisdictions had shifted dramatically in the 1980s, when the High Court redrew the definition of an industrial dispute, allowing Federal awards to cover many more areas of potential industrial coverage.

With a sympathetic Labor Government in power federally, state unions had surrendered their authority to their federal counterparts, and an overwhelming number of applications for the making of federal awards were passed. The trend was not so obvious in NSW - because state unions there were relatively strong - or Victoria, which never had a great number of state awards.

He said industrial changes made by former Victorian Premier Jeff Kennett in the early 1990s, seen to be extremely prejudicial to the workers (see 99/2000), caused 'a wholesale abandonment by the union movement of the state jurisdiction in Victoria, rivalled in recent times only by the ongoing evacuation of the entire country of Afghanistan, whilst the US apparently prepares to remove that country from the maps of the world'.

The newly-installed coalition Government in Queensland learnt from this mistake in 1995-6, he said, and enacted 'a precise mirror, as near as was possible, to the prevailing Federal legislation of the day, so as to remove the attraction on the part of any of the industrial parties to escape from the Queensland state jurisdiction'.

While that Government did not survive a full term, and the incoming Howard Government changed laws federally, Herbert questioned why that Queensland Government would bother hanging on to its legislation when it was only a shadow of the federal laws.

The federal changes meant that system 'did not appear to be the safe harbour it was thought to be' earlier and, as a result, 'that flight to Federal awards ground to a shuddering halt'. Herbert said there had not been an application made under s111(1)(g) of the federal Workplace Relations Act - an application for federal award coverage in new areas within the state - for the past two to three years.

Anecdotal evidence suggested 'very strongly that some parties now consider the Australian IR jurisdiction is very much an inferior jurisdiction in which to seek or maintain award coverage, relative to state jurisdictions'. Areas which were not already covered by federal awards were under no present danger of applications for their removal, he said.

Lessons from history

Herbert said there was a clear lesson for legislators who sought to change the standards and principles governing the functioning of state or federal IR systems. 'If you cannot control your borders, restricting the access of one party or another to the remedies which they can obtain outside your particular jurisdiction may simply only mean that the persons whose interests you are seeking to safeguard will lose out entirely. . .'

The Victorian system's abolition was 'a clear and extreme example' of the effect of an attempt to deregulate the system to the intended advantage of employers and in favour of a system based on market forces.

He said this raised the 'vexed question' as to whether the will of a legislator in whatever jurisdiction could be given effect to, as long as 'industrial asylum seekers and refugees' could flood across borders. He said in Queensland, SA and WA, the very existence of state jurisdictions in the future 'may ultimately solely depend upon the capacity of [those] jurisdictions to provide common rule awards'.

This would apply if a federal Government introduced a legislative regime which provided substantial advantages to unions over and above those available under the respective state jurisdictions.

'Past history instructs us that federal unions who see advantages in the federal jurisdiction have the will and the capacity to abandon state jurisdictions in large numbers and seek their fortunes in a federal gold rush,' he said.

Herbert said the looming federal election raised the question as to whether any justification existed for maintaining separate industrial jurisdictions. In his view, close cooperation between the jurisdictions meant the day had arrived to have a single stream.

He said the main argument for preserving the state systems had centred around jurisdictional limits on the AIRC to entertain certain types of applications, like common rule awards, and to grant relief in the resolution of intrastate disputes.

But with cooperation which saw the adoption of consistent corporations law throughout all the states and the commonwealth, despite the federal government's constitutional inability to enact such legislation in its own right, a 'totally seamless' industrial jurisdiction could be delivered to a single tribunal 'with the stroke of seven pens'.

He said this tribunal should be federal, for consistency's sake, and should operate along the lines of the Family Court, which was a Federal Court but operated via 'reasonably autonomous' state registries. He said adapting this model to the IR system meant it would be possible to accommodate 'parish pump' considerations, by drawing a bench from state members when specific local considerations arose, and to have cross-border benches for 'big ticket' items and issues of national consistency.

He said to maintain all industrial parties within a 'reasonably consistent' framework meant state and federal governments would have to pay a price from time to time - surrendering 'extreme points of view which do not have general consensus support'.

'Regulation, deregulation and reregulation may then be matters which are introduced with more thought and consultation, and with less emphasis on a political knee-jerk reaction to the perceived extreme policies of the next preceding government of that jurisdiction,' Herbert said.

He said while he realised he was dealing with 'powerful politics' and 'a more powerful lethargy' in suggesting such changes, the governments of Australia should realise there were no such thing as a 'federal employer' or 'federal employee' and nor were there 'federal industries' or 'federal workplaces'.





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