States could still refer IR powers to the Commonwealth, says Smith

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States could still refer IR powers to the Commonwealth, says Smith

Once the Howard Government’s national IR legislation is passed and High Court challenges dealt with, the Federal Labor Opposition will meet with the States to discuss whether they then refer their powers to the Commonwealth, Shadow IR Minister Stephen Smith has told WorkplaceInfo.

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Once the Howard Government’s national IR legislation is passed and High Court challenges dealt with, the Federal Labor Opposition will meet with the States to discuss whether they then refer their powers to the Commonwealth, Shadow IR Minister Stephen Smith has told WorkplaceInfo. 

Possible scenarios

In an exclusive interview Smith said: ‘I think once we see where the dust settles post legislation and the High Court, the sensible thing is for us to sit down with our State colleges and have a conversation about where we think the lay of the land is.’ 

‘There would be in theory a number of options, including a reference of powers for a unitary system or a reference of powers for what [NSW IR Minister John] Della Bosca refers to as a harmonised system and I describe as a uniform Commonwealth-State system,’ he said.

‘Another suggestion is an opt-in system which would enable particular registered organisations, employers or employees, to opt into one system or the other, which is not unlike what we have at the moment.’ 

'Dog's breakfast' if Howard wins

Smith said if John Howard gets his way with a national system it would be ‘a dog’s breakfast’.

He said there would be a mix of systems, with some employees under the new Federal system, some on collective agreements that continue past its introduction, and others, such as state public servants, in a third system. 

‘It is not going to be a unitary system,’ Smith said. ‘It is going to be a dog’s breakfast.  

‘There will be a mixture of jurisdictions. The employees of unincorporated associations won’t be covered by the Commonwealth.  

‘If you wanted to actually sit down and say, OK, we think there are some economic or social gains to be made by having one system rather than half a dozen, the sensible way to try to effect that would be to sit down with the States and say “why don’t you think about referring powers to us so that we can have one system?” 

‘John Howard didn’t do that, the States found out [about plans for a national IR system] when he went on TV on a Sunday morning in February of this year and then three months later he had a conversation with them at COAG.’ 

Cooperative approach

Smith said in the old days every Territory and State had a Commissioner for Corporate affairs and a State or Territory based office.  

‘The Commonwealth said to the States, “what about referring powers and we will be the regulator?”, and the States said “what about if we have a uniform cooperative scheme?”

‘For a number of years we had the National Companies and Securities Commission and what was known as the uniform Commonwealth-State scheme.

‘And as the outlying States in particular became satisfied and happy with the provision of service we then moved to where we are now, which is the national regulator ASIC.  

‘That makes modern day sense as did the move from a state based economy to a national and international economy.’ 

Asked if he would support such a scheme in IR, Smith said: ‘No, I am saying if you wanted to go down that road the sensible way of proceeding is to sit down and have a conversation and you might end up with a reference of powers or a uniform Commonwealth-State system.  

‘Or you might end up with the States saying “We don’t actually think that there is anything much to be gained in economic or social efficiency terms so we will stick by ourselves”.’ 

Constitutional basis and fairness

Smith said if Federal Government wanted to institute or enforce a national IR system against the wishes of the States then the sensible thing would be to rely upon both its corporations and the external affairs powers. 

‘That would give you greater coverage, but the last thing this Government wants to do is rely upon the external affairs power because that requires a modest recognition of and attachment  to ILO conventions. 

‘That means you’ve got to underpin that approach with the same fundamental principles that the States would require and we would require – in other words underpinned by fairness, a strong independent umpire, minimum standards, rights to collective bargaining, capacity to associate and the right to join and be active in a trade union, and not allow individual agreements to undermine collective bargaining or undermine the individual rights of Australian employees. 

‘Whichever way it goes, either by having a conversation with the Premiers or relying on the external affairs powers, they are things Howard doesn’t want to touch with a barge pole.’ 

ACCI welcomes report Beazley won’t abolish AWAs  

Meanwhile a leading employer group has again come out in support of AWAs. 

It is untenable for any prospective government in Australia to have a policy of abolishing AWAs, the Australian Chamber of Commerce and Industry (ACCI) has declared, because they are now ‘freely used and well accepted’. 

ACCI was responding to media reports that Opposition Leader Kim Beazley had said a future Labor Government would only ensure AWAs did not undercut award conditions.

The statement was ‘cautiously welcomed’ by ACCI, which said the Federal Opposition needed to establish a workable system of AWAs – ‘not one where individual bargaining is given technical support but is in reality undermined by union intervention or unworkable conditions and red tape’. 

ACCI said the systems of individual bargaining in WA and Qld was ‘no model’ as State individual agreements there had been rendered al most non-existent. 

It said union officials have taken an ideological view opposing AWAs because they do not like the individual character of an AWA and the individual bargaining service that is involved in their negotiation.

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