'Fatally flawed' WorkChoices will collapse, says top	IR lawyer

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'Fatally flawed' WorkChoices will collapse, says top IR lawyer

The WorkChoices legislation will disintegrate under the weight of its own flaws within six to eight years, leading industrial lawyer Professor Ron McCallum has told the Law Society of NSW.

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The WorkChoices legislation will disintegrate under the weight of its own flaws within six to eight years, leading industrial lawyer Professor Ron McCallum has told the Law Society of NSW.

McCallum, who is also Dean of Law at the University of Sydney, said that in his considered judgement, 'in their current form the WorkChoices laws are not sustainable'.

'Unless they are significantly amended to soften and to simplify their operation, they are likely to be swept aside in six to eight years time,' he said.

'This may appear at first blush to be a surprising claim on my part,' McCallum said. 'After all, the WorkChoices scheme is a huge wall of law. Yet ... it is this very legal edifice which carries within itself some of the seeds of its destruction.'

McCallum said there were five reasons WorkChoices was not sustainable:

1. All of the State and Territory governments strongly oppose the WorkChoices laws.

'This state of affairs is hardly surprising,' he said 'After all, none of the governments were fully consulted, and apart from Victoria, all of the remaining States lost more than half of the employers and employees who previously were governed by State industrial law. As the general public is presently both sceptical and frightened by the diminution of their conditions of employment under WorkChoices, the State and Territory Australian Labor Party governments believe that they are on a 'winner' in strongly opposing these new laws.'

McCallum said a number of State governments have already taken steps to protect their employees from the WorkChoices avalanche, so far as they are able.

2. The prescriptive nature of the WorkChoices laws

'When laws are overly prescriptive, people usually by-pass them in one form or another,' McCallum said. 'The best example of the manner in which prescriptive measures are used in the WorkChoices laws, are the regulations which set out what matters will amount to prohibited content in workplace agreements.'

McCallum said the true motive of the Parliament in prescribing prohibited content was to diminish the role of trade unions in collective bargaining.

'However, what will happen in many instances is that far-sighted employers who are seeking innovative workplace arrangements will enter into agreements with trade unions on prohibited matters,' he said. 'Some agreements may be entered into as Common Law agreements, or made by deed poll, or enforced by the good will of the parties.

'The prescriptive nature of prohibited content, like so many other prescriptive areas of WorkChoices, will not alter the behaviour of employers, of employees and of trade unions. Rather, it will force the parties outside and beyond the Federal statute to make their own arrangements.'

3. The failure of very many employers to engage with these new laws

'Most employers wish to treat their employees in a fair and appropriate manner,' McCallum said. 'They recognise that the WorkChoices laws are unbalanced in the sense that they place managerial prerogatives above fair outcomes and tie trade unions in knots. Many employers see no need for this harsh regime and do not wish to get caught up in this legal net.'

4. A number of the WorkChoices provisions are likely to be declared invalid by the High Court

'For example, I believe that portions of Schedule 1 of the statute which enables trade unions to register as employee organisations owing to their members being employed by trading corporations, is likely to be held to be beyond power,' McCallum said. 'If I am correct, then the WorkChoices laws will need to be amended to take account of this decision which will further weaken this edifice.'

5. The collective bargaining provisions have been written without taking into account international labour law

'In my considered judgement, the failure of WorkChoices to give employees any choice whatsoever as to whether they wish to enter into collective agreements with employers, breaches the International Labour Organisation conventions 87 and 98 on freedom of association and collective bargaining,' McCallum said. 'Of even more importance, however, this failure to recognise that employees have any sort of voice in choosing whether or not to engage in collective bargaining, breaches the 1998 Declaration by the International Labour Organisation of the Fundamental Principles and Rights at Work.'

'While Australia was able to sign a so-called free trade agreement with the United States without adhering to these core labour principles, we are likely to have difficulties in the future.

'If our nation is to continue down the track of signing bilateral trade agreements, we will need to take greater account of international labour law and to bring our collective bargaining laws into line with the International Labour Organisation standards on collective bargaining.'

In his speech McCallum proposes the kind of IR system which might follow WorkChoices, which would include the right to collectively bargain, independent assessment of AWAs for fairness, an efficient forum for unfair dismissal claims and the return of the setting of the minimum wage to the AIRC if the Fair Pay Commission proves 'not up to the job', with the assistance of a independent research arm.

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