IR referral Bill should not go ahead, says Ridout

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IR referral Bill should not go ahead, says Ridout

A major employer organisation has told a Senate Committee that the Bill which would facilitate the states referring their IR powers to the Commonwealth should not proceed because it leaves too much power in the hands of the states.

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A major employer organisation has told a Senate Committee that the Bill which would facilitate the states referring their IR powers to the Commonwealth should not proceed because it leaves too much power in the hands of the states.
 
Ai Group chief executive Heather Ridout said the history of the Workplace Relations Act 1996 and WorkChoices indicated that there would need to be amendments to the Fair Work Act 2009 as it is bedded in.
 
However, the powers that the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 left with the states meant that such necessary amendments could be blocked or delayed.
 
Amendments will be needed
 
‘Most employers and employees are already covered by the workplace relations system,’ Ridout said.
 
‘These employers and employees need workplace relations laws which can be readily amended if problems arise.’
 
‘We are particularly concerned about the agreement apparently reached between the Federal, State and Territory Governments that if even one state or Territory believes that an amendment undermines the fundamental workplace relations principles then that amendment will not proceed unless it is endorsed by a two-thirds majority of States and Territories.’
 
‘The fundamental workplace relations principles are extremely broad and virtually any proposed amendment, to address problems that might arise for business, could be regarded by one or more states as, for example, undermining union rights or employment protections.’
 
More cumbersome
 
‘We are very concerned that, under the Bill and its related Inter-Governmental Agreement, the cost of including non-corporate employers and their employees in the national workplace relations system could be a far more cumbersome and inflexible system for all employers and employees than the one currently in place.’
 
Ridout said Ai Group is concerned that the Bill, when considered in conjunction with the Inter Governmental Agreement, could lead to:
  • state governments having an effective power of veto over amendments to the Fair Work Act
  • state governments being able to pressure the Commonwealth into amending the Fair Work Act
  • state governments being able to pressure the Commonwealth into not proceeding with important amendments to the Fair Work Act to address any problems that arise over the months and years ahead
  • delays in necessary amendments being made to the Fair Work Act due to the processes agreed upon between the federal and state governments
  • one or more state governments terminating their amendment references, thereby creating different versions of the national workplace relations system for different groups of employers and employees.
 
Power to the states
 
‘The Bill appears to take significant power away from the Federal Government and give it to the states not just in respect of laws applying to sole traders, partnerships and other non-corporate employers but for all employers,’ Ridout said.
 
‘Such a power shift could end up being a major problem for business if problems arise with the legislation and vital amendments cannot be made.’
 
Ridout said a further and related area of concern relates to the definition of excluded subject matter in s30A and s30K of the Bill.
 
‘It is important that the definition of excluded subject matter in the Bill align with the definition of “non-excluded subject matter" in s.27 of the Fair Work Act,’ she said.
 
‘These definitions are important because they relate to the interaction between State laws and federal laws, modern awards and enterprise agreements.’
 
Prefer less scope for states
 
‘As the Committee was informed during its inquiry into the Fair Work Bill, we would have preferred that s.27 of the Fair Work Act provide less scope for the States to make laws about IR matters. That section is now in place and we are monitoring how it operates in practice.’
 
‘However, the proposed definitions in sections 30A and 30K of the Bill give States increased powers in respect of training arrangements, long service leave, public holidays and claims for enforcement of contracts of employment.’
 
‘The proposed lack of consistency between s.27 of the Fair Work Act 2009 and sections 30A and 30K creates uncertainty and potentially an increased regulatory burden for employers.’
 
‘We submit that it is not appropriate to give States increased powers in the proposed areas and, accordingly, to undermine the provisions of the Fair Work Act, modern awards and enterprise agreements relating to these matters.’
 
Not proceed
 
‘If we are asked the question as to whether we want the legislation to proceed, based on our understanding of the package, our view is that we would rather it not proceed.’
 
Ridout said Ai Group would prefer a complete referral of powers from the states to the Commonwealth.
 
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