NSW challenges WorkChoices in High Court, makes deal with unions

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NSW challenges WorkChoices in High Court, makes deal with unions

The NSW Government today filed a writ with the High Court challenging the constitutional validity of the new federal WorkChoices IR laws, and is making a deal with unions to protect current wages and conditions.

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The NSW Government today filed a writ with the High Court challenging the constitutional validity of the new federal WorkChoices IR laws, and is making a deal with unions to protect current wages and conditions.

It has entered into a pact with the NSW trade union movement to ‘honour all wages, salary and conditions agreements, regardless of the federal legislation’.

And the NSW Government will change the system to allow the State IRC to conciliate and arbitrate disputes that arise from common law contractual agreements entered into by unions and employers.

Circumventing WorkChoices

This indicates that unions are already planning to circumvent the WorkChoices federal IR system by making common law agreements with employers - something some IR law experts have urged employers to avoid.

The Minister for Industrial Relations, John Della Bosca and the NSW Solicitor-General Michael Sexton SC filed the writ, which argues that the Commonwealth has exceeded its powers under the Australian Constitution.

Case will argue' invalid takeover'

Other State governments are expected to submit similar writs shortly.

‘The case we will put before the High Court will demonstrate that the Howard Government has misused its authority in conducting a hostile takeover of powers that are constitutionally vested in the States,’ Della Bosca said.

‘The State Government is mounting this challenge to protect workers and their families, small business owners and farmers who will all suffer if this unconstitutional law is allowed to stand.’

Challenge to use of regulations

The NSW Government will also contest the unprecedentedly broad regulation making powers set out in the WorkChoices Act, specifically those that permit the Minister to make regulations that would modify the effect of the legislation.

The legal team spearheading the NSW Government’s challenge will be Solicitor-General, Michael Sexton SC, Bret Walker SC, along with industrial barrister Ingmar Taylor and corporations law barrister Jeremy Kirk.

Minimise impact in NSW - legislation proposed

The NSW Government is also formulating a broad series of administrative, regulatory and legislative measures to minimise the impact of WorkChoices on NSW employees and businesses.

Public sector

‘The Government has received advice that close to half the public sector will not be covered by WorkChoices, unless the State refers its powers,’ Della Bosca said.

‘The Labor Government will not jeopardise vital frontline services by condemning nurses, police, firefighters and other personnel to the Commonwealth’s unfair and conflict-ridden workplace model.’

Della Bosca said the Public Employment Office had been instructed to investigate strategies to protect the rest of the public sector from coverage by WorkChoices.

Pact with unions

‘The NSW Government will also enter into a memorandum of understanding with Unions NSW that commits to a continued co-operative approach to industrial relations, including a commitment to honour all wages, salary and conditions agreements, regardless of the federal legislation,’ he said.

Della Bosca said the NSW Government is also finalising changes to its procurement policies to ensure that companies that tender for work with the NSW Government ‘treat their employees with the fairness that has been a feature of Australian life for a century’.

Preserving the award system, retaining the NSW Commission

He said the Government is planning a new industrial relations legislative agenda early next year.

NSWIRC to be given wider powers

‘The NSW Government has provided in principle approval to expand the jurisdiction of the NSW Industrial Relations Commission to conciliate and arbitrate disputes that arise from common law contractual agreements entered into by unions and employers,’ Della Bosca said.

‘This will allow employers and unions continued access to the successful and popular NSW Industrial Relations Commission, to resolve disputes quickly and efficiently.’

The High Court challenge is expected to be heard during the first half of 2006.

Meanwhile - AIRC not proceeding with National Wage Case

Meanwhile the AIRC has delayed the national wage case for employees moving under WorkChoices from State Awards to transitional Federal Agreements until the Fair Pay Commission has made its first wage determination, expected in the spring of next year.

Details of the NSW High Court challenge

The following is a summary (provided by NSW Government) of the NSW High Court challenge to WorkChoices:

The Federal Government’s WorkChoices legislation relies, to an unprecedented scale, on the power in the Constitution to make laws in relation to trading and financial corporations.

Since federation in 1901, Commonwealth industrial relations legislation has been made on the basis of the specific industrial power in the Constitution which recognises that industrial relations is an area of shared power between the States and the Commonwealth.

Under that power, the Commonwealth is limited to making laws for the conciliation and arbitration of interstate industrial disputes.

The Commonwealth is attempting to use the corporations power to overcome the limitations on federal power set out in the industrial disputes power.

It does so by providing that the Act applies to all employers who are corporations and to their employees, regardless of which industrial relations system they operate under currently.

The NSW challenge to the WorkChoices legislation turns largely on the interpretation of the corporations power.

The statement of claim identifies the operative provisions of the Act and argues that the application of all these provisions is invalid insofar as it relies on the corporations power of the Commonwealth because it exceeds the legitimate scope of that power.

It also identifies the broad regulation making power attached to the provisions of the Act that identify which state laws are overridden by WorkChoices.

These similarly exceed the scope of the corporations power. The arguments to be made include the following:

  • That the provisions deal with activities other than the trading or financial activities of corporations;
  • That the provisions deal with the employment of persons, which is an aspect of the internal management of corporations that is intimately connected with the formation of those corporations, and the Commonwealth does not have power to deal with the formation of corporations;
  • That the various constitutional powers to make laws for different matters should be read in context, in particular that the Commonwealth’s power to legislate for industrial relations appears to have been limited to dealing with interstate disputes;
  • That the provisions seeking to regulate the internal affairs of unions have little or no connection to the corporations power.

The operative provisions will also be challenged to the extent that they rely on other powers in the Constitution, such as the powers to make laws for the territories and with respect to interstate trade and commerce.

It will be argued that the provisions deal with issues only peripherally related to those powers. Further arguments may also be developed.

Related

Take care with common law contracts, employers warned

Federal IR changes 2005

 

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