National IR system by 2010 – but states can opt out: report

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National IR system by 2010 – but states can opt out: report

A major new report recommends a uniform national industrial relations system for Australia by the beginning of 2010 – but one the states can opt out of, or join in different ways.

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A major new report recommends a uniform national industrial relations system for Australia by the beginning of 2010 – but one the states can opt out of, or join in different ways.

 

The proposed system also allows for the states and territories to specifically exclude areas from the national IR law, such as control over state public sector employees.

At least one major employers’ body is opposed to such a convoluted ‘voluntary’ system, but it may be the only practical way of overcoming the political difficulties of each state and ultimately achieving a coordinated national system.

Since the report was commissioned by the NSW State Government and provides maximum flexibility for the states, it sets ground rules for a national workplace system before the Federal Government can reveal its own plans for a unified system that would inevitably put the national government in a stronger position.

States fear new ‘WorkChoices’

It is the states saying: ‘We will support a national IR system, but only on our terms.’ The States obviously fear having a new ‘WorkChoices’ system imposed on them by a federal government in the future if they have no control over the national system.

The Federal Government will now be responding to the states’ proposal in the knowledge that its chance to deal with all-Labor State governments will not last long and that it must strike a deal while it can.

The report, by Professor George Williams, the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales, was released today.

It recommends there should be an intergovernmental agreement between the Commonwealth and all states and territories that wish to participate setting out:

  • a process and timetable for bringing about the national law
  • a requirement that the text of the law be approved by all participating governments, along with the option for any government that does not approve the text to opt out of the scheme.

Ministerial Council

To oversee the functioning of the national IR system the report recommends the establishing of a Ministerial Council to oversee the development, implementation and maintenance of a new national industrial relations system.

It says the chair of the Ministerial Council should be rotated, with the Commonwealth Minister chairing every second year and the states and territories chairing in the alternate years as agreed between them.

The report says states wishing to participate in the new national system should have a choice of two mechanisms to ensure that the new law applies in their jurisdiction.

They will be able to either:

  • enact legislation that provides for a text-based referral to the Commonwealth of the exact terms of the national law
  • enact uniform legislation in exactly the same terms as the national law.

Key recommendations

Significant recommendations in the report include:

Other than trivial changes, all amendments to the national law should require the consent of a two thirds majority of the Ministerial Council, including a majority of the states. The national law should provide that amendments not approved in accordance with this requirement will have no effect.

States and territories should be able to specify exclusions from the national law (for example, some states may wish to retain public sector employment under State law).

Three types of exclusions should be possible:

  • general exclusions applying to all states and territories written into the text of the law at the time of its drafting
  • jurisdiction-specific exclusions applying only to one or more states or territories written into the text of the law at the time of its drafting
  • later exclusions of a general or jurisdiction-specific nature made by amendment to the national law by the process set out above.

Over time, states and territories should be able to include any of their prior exclusions in the national law.

The regulations that support the new national law should require the agreement of all the participating jurisdictions. Subsequent amendments to the regulations should be made by the Commonwealth but be disallowable by a majority of the jurisdictions.

National Commission

A national commission, tribunal or other like body might be established as follows:

  • it would be composed of divisions within each state and territory
  • each division might be constituted by the transfer of the personnel of the current state or territory industrial relations commission or like body
  • subsequent appointments to each division might be made 50% by the Commonwealth and 50% by the relevant State or territory
  • each division would be vested with power under the national law
  • each division would be vested with power by the relevant state or territory with regard to excluded matters within that jurisdiction.

Inspection and other compliance work might be contracted out to state and territory agencies. These agencies could be authorised to enforce both the national law and any state based exclusions.

Judicial supervision of the system should be undertaken by the Federal Court in jurisdictions that choose text-based referral, or by the state court systems in states with uniform legislation.

Given the possibility of divergence in judicial decision making over time in those jurisdictions which have adopted uniform legislation, it is recommended that the Ministerial Council support a proposal for a referendum to amend the Constitution to enable the states to confer judicial power and enforcement functions on the Commonwealth.

The new national law should be drafted in plain English and be as succinct as possible. It should set clear objectives and contain broad guidelines for administration and enforcement by tribunals, agencies, courts and other bodies.

Timeline

The timeline for achieving these goals should be as follows:

Step 1 by March 2008 – states, territories and the Commonwealth agree on the governmental and other structures to provide the architecture of the scheme.

Step 2 by June 2008 – states, territories and the Commonwealth agree on the principles, core content and general exclusions that will constitute the drafting instructions for the national law.

Step 3 by December 2008 – national law drafted.

Step 4 by June 2009 – national law enacted, states enact referral or uniform legislation, states and territories enact legislation for any jurisdiction-specific exclusions and reform of institutions commences.

Step 5 January 2010 – new national law comes into force.


Related


NSW looking at new 'harmonised' national IR system

Employer body backs 'full referral' of State IR powers

Gillard on IR reform

 

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