Options on the table for new national IR system

News

Options on the table for new national IR system

A leading constitutional lawyer has produced an options paper for a new workplace relations system in Australia that could see either complete domination by a Federal Government or various forms of shared responsibility with the States.

WantToReadMore

Get unlimited access to all of our content.

A leading constitutional lawyer has produced an options paper for a new workplace relations system in Australia that could see either complete domination by a Federal Government or various forms of shared responsibility with the States.

Professor George Williams, of the University of NSW, has been contracted by the NSW Government to inquire into how a ‘fair and harmonised’ national IR system could be put in place.

The inquiry follows last year’s High Court case over the constitutional validity of the WorkChoices legislation. The Court’s decision gave the Federal Government complete power over industrial relations for corporations, leaving the State systems to cover what was left.

Williams estimates that WorkChoices now covers 70% of workers in NSW, and similar proportions of workers in other States, except Victoria which ceded its IR powers to the Commonwealth in the 1990s.

Labor has promised to work towards a new national IR system in cooperation with the States if it wins the next Federal election.

Williams’ paper offers six models for a national industrial relations system:

Full Referral

States refer all power over industrial relations to the Commonwealth, but build a strong intergovernmental decision-making role that ensures that they can continue to represent the needs of their communities and are able to influence the development of the national industrial relations system.

Limited Referral

States refer defined powers to the Commonwealth, retaining other powers for themselves and include a strong intergovernmental decision-making role.

Mirror Legislation, State Enforcement

The Commonwealth enacts a model industrial relations law within one of the Territories, then in accordance with an intergovernmental agreement that legislation is adopted in each State. A strong governance model ensures that the States continue to be able to represent the needs of their communities and are able to influence the development and adjustment of the national industrial relations system. In the short to medium term, each State enforces its own laws to avoid the constitutional problems identified by the High Court.

Mirror Legislation, Federal Enforcement

A referendum proposal is developed to put an end to the power sharing problems identified by the High Court. The model has the same approach to legislation and continued shared oversight as proposed in the Mirror Legislation, State Enforcement model, but with the capacity of Commonwealth courts and enforcement bodies to carry out judicial and enforcement functions.

Common Legislation, Shared Enforcement

A Commonwealth framework law is developed that the States adopt through their own legislation, much like the consumer protection model, but with stronger governance to ensure as much consistency as possible.

State systems underpinned by national standards

The Commonwealth legislates to create a safety net of national minimum employment conditions using its external affairs power or a limited referral of State power. State systems would continue to operate, but would not be able to undermine the national standards. Bargaining would be available at both the State and Federal level. Each jurisdiction would have separate enforcement functions and judicial arrangements.

Williams said the mechanisms for achieving an integrated, cooperative national industrial relations system fall into two broad categories.

‘One relies on the preparedness of the States to refer at least some portion of their legislative power to the Commonwealth. Referral of a power to the Commonwealth gives the Commonwealth a new head of constitutional power, on the basis of which it can make laws,’ he said. ‘The downside is that State power to influence the shape of the national system may be diminished.

‘The other rests on the capacity of the States and the Commonwealth to pass and maintain interlocking or mirror legislation. Such systems can require a high level of cooperation and good will amongst the parties to ensure a lasting settlement.

‘The benefit however is that all parties may be more able to make a legitimate, ongoing contribution to the development of the system.’

The paper also sets out five principles for a national system, saying that it must be:

  • fair
  • efficient
  • universally accessible
  • adaptive, and
  • cooperative

Williams has called for responses to the issues paper, and asks that they address any or all of eight questions, which can be found on the last page of the paper. He has also asked industry organisations to respond regarding their particular needs regarding a national IR system.

The closing date for submissions is Friday, 12 October, 2007.

Related

No switching between State and Federal IR schemes, says Gillard

Rudd's new IR system tramples over unions

 

 

Post details