National IR system may take 10 years to get through High Court


National IR system may take 10 years to get through High Court

The Federal Government’s new national IR system could take 5-10 years to get through the High Court, a major conference in Sydney sponsored by the state and territory governments has been told.


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The Federal Government’s new national IR system could take 5-10 years to get through the High Court, a major conference in Sydney sponsored by the state and territory governments has been told.

Professor George Williams, of the NSW University Faculty of Law, told the ‘Fair Go or Anything Goes?’ conference that the High Court does not like to be taken for granted and has been reluctant to make wide interpretations of legislation in the past.

Problems for government

He said the constitution doesn’t specifically cover workplace relations and the government will need to turn to other heads of power to get its national system through.

‘It says it will use the corporation powers, but there are two problems with this,’ Williams said. ‘Corporation powers only address corporations, and only certain types of them. Significant numbers can’t be covered.

‘The High Court might go for a narrow interpretation, or go wide and say it covers everything.’

Professor Williams said the Commonwealth Government will be hoping for a wide view, ‘but the High Court has not gone that far up to now’.

‘It is very uncertain what the judges might say,’ he said.

Confusion likely

Professor Ron McCallum, Dean of the Faculty of Law at the University of Sydney, said that if the High Court decides on narrow grounds ‘a lot of employees would not know what system they are under’.

‘It is the mosaic effect, two systems of law,’ he said.

He speculated that there could be a ‘middle’ approach where, for example, the IR laws had to have some kind of corporate aspect, such as trading, even if they were not directly about that.

Professor McCallum said that would cut the coverage of a national system down to about 65% of employees - which would be a significant problem.

Series of cases

Professor Williams said there could be a series of cases to see ‘who is covered and who is not, which could take 5-10 years to work through’.

His view is that the powers are not wide enough for a national IR system and there will be room for state systems unless the states refer their powers.

‘In 1989 the Federal Government introduced a national corporations law, but the High Court struck it down 6-1,’ he said. ‘It is a sign that the High Court does not like to be taken for granted.

‘Maybe there can only be a national scheme with the cooperation of the states.’

Coverage of employees

He said that without that there will be limited coverage of employees.

‘Teachers and hospital workers can’t be covered in areas like redundancy,’ he said.

Professor Williams said he was a supporter of federalism, but doesn’t think a federalism system demands nine different laws on IR.

‘The main impediment re IR reform has been political,’ he said.

Attack on federalism

Professor Greg Craven of Curtin University in WA said the proposed IR changes are the biggest attack on federalism in the past 110 years.

‘The Conservative Opposition in WA is totally opposed to these IR changes because of the attack on federalism,’ he said.

‘There has been a shift in politics in Australia. We now have a conservative government determined to attack federalism.

‘Conservatives are usually suspicious of unrestrained power so they are suspicious of federalism. It is a basic abandonment of constitutional principles.’

Professor Craven said federalism divides power so that ‘no government has all of it at the same time - there is a balance of power between the states and the Federal Government.

‘This brings government closer to the people; the states make decisions closest to the people,’ he said.

Professor Craven said he suspected the government’s troubles in recent polls was ‘perhaps not about IR but about the government’s ambivalence re federalism’.

‘This is deeply hypocritical for a conservative party,’ he said.

Professor Craven said people in Sydney appear not to be fussed by the problem of federalism, ‘but in WA we are very attached to it.’

‘People are getting interested in federalism. It will decide whether collective or individual bargaining runs the system.’

Attack on conservatism

Professor Craven said the Howard Government has more in common with the Whitlam Government than previous conservative governments.

He said the government moves on a national IR system were ‘opportunistic’ because they didn’t expect to get control of the Senate.

‘It is also deeply foolish - the ALP will turn it back on them,’ he said.

He said the political system in Australia was now reversed.

‘The ALP is now trying to ‘conserve’ certain things, it is no longer the party of radical change,’ he said.

He said the High Court is not a historical friend of federalism and has some ‘capital C’ conservatives on it.

‘There is some nervousness about the use of the corporation powers,’ he said. ‘The High Court hates being taken for granted.’

Professor Craven said he had two words for the Howard Government: ‘Grow up!’

Dispute resolution

Susan Zeitz, a partner in the legal firm EMA Legal, said she thought a national system would be more efficient.

She said that in Victoria since the government ceded its IR powers to the Commonwealth the system ‘has been simpler and easier to operate in’.

Zeitz said the High Court rarely gives a complete judgement.

‘There will be a series of judgements over time before it is clear.’ A cooperative approach with the states would be better.

She said one of the problems with using the corporate powers for IR laws was that AWAs only require a dispute resolution procedure, ‘not that it proceeds to a resolution’.

‘So opportunities for resolution are likely to be seriously reduced. People will then seek alternative means, such as discrimination laws.

‘Moving to corporation powers means we could lose sight of the conciliation process, which is there for the resolution of disputes.’

National system - a good idea

Professor McCallum said he had no doubt that a national IR system would be a ‘good thing’.

‘It makes sense in this globalised economy,’ he said.

‘But the Federal Government cannot produce a national system, it can only extend coverage.

‘You can’t say “we only cover 85% of crimes, but the other 15% don’t matter so let ‘em go”.'

Industry v Enterprise

Professor McCallum said constitutional powers shape the kinds of laws the Federal Government can then exact.

He said the current system presupposes industry unions but the Howard Government is opposed to unions working outside the enterprise level.

‘Under corporation law the government can only make laws about the objects of the corporation, and these laws would eventually operate to the benefit of the corporation,’ he said.

‘Already corporations are running prisons, which governments used to do.’

Role of OHS

Professor McCallum said a lot of disputes in the future would be settled via OHS laws.

‘The Federal Government doesn’t want to take over the OHS system because they would have to take over the workers compensation system - and who would want to do that?’

He also said cooperation is a better way, and the six states should cooperate with each other more to have common IR standards.


Federal IR changes 2005

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