Govt source rejects claim part-heard matters will lapse

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Govt source rejects claim part-heard matters will lapse

Claims that part-heard matters before State IR Commissions cannot continue to completion because the WorkChoices legislation has abolished the right for them to be dealt with have been rejected by Federal Government advisers.

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Claims that part-heard matters before State IR Commissions cannot continue to completion because the WorkChoices legislation has abolished the right for them to be dealt with have been rejected by Federal Government advisers.

The claim

The claim that the matters currently before State Commissions would ‘die’ was made by a leading industrial lawyer at a seminar in Sydney late last month.

Damian Sloan from Middletons argued that Federal Government claims that WorkChoices would allow current matters to be completed (but ban new ones from being heard) was wrong because the regulation that would allow this was contradictory to the Act.

He said there was a long-standing judicial convention that regulations could not contradict the parent Act and that a regulation could not ‘reignite’ a power extinguished in the Act.

Government's position

However WorkplaceInfo understands that the Government’s position is that the contradiction between the Act and the regulation is irrelevant.

The argument is that WorkChoices has not ‘extinguished’ the State IR Commissions’ powers to hear such matters.

‘The Federal Government can’t stop the States from doing anything in their IR courts,’ WorkplaceInfo was told.

‘So, since the powers were not abolished by WorkChoices, the regulation is not in contradiction to the Act.

‘However the Federal Government has the right to over-ride what they do. So we are choosing to over-ride the State powers to the extent that new matters cannot be heard but existing ones can.’

Amendment to existing legislation was preferred path

The source said that one of the reasons the new legislation was formed by massive amendments to the old Workplace Relations Act, rather than writing a completely new Act, is that doing so would have involved abolishing the AIRC and then reinstating it.

There were other similar technical reasons for not writing a new Act, as well as the claim that a new Act would have taken longer to write than amending the existing one.

High Court challenge

The source is also confident that WorkChoices will withstand the High Court Challenge by the States.

‘Our advice is that there might be a few changes at the edges, but the corporations power will hold,’ he said. ‘And the States have the same advice’.

NSW agreements ploy

The source also said the NSW Government’s ploy of deeming State consent awards to be State agreements - and thus exempt from WorkChoices – would succeed.

However he pointed out that workers under such agreements have lost access to State minimum wage case adjustments.

‘They may have lost more than they gained,’ he said.

Mastering practicalities of WorkChoices: conference

Law and Finance will present 'Mastering the Practicalities of the New Industrial Relations Legislation' on 14th – 16th June 2006 at the Stamford Plaza Melbourne in June.

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NSW IR laws back-dated to thwart WorkChoices

NSW challenges WorkChoices in High Court, makes deal with unions  

 

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