WorkChoices: State IRCs will try  							‘passive resistance’, say lawyers

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WorkChoices: State IRCs will try ‘passive resistance’, say lawyers

State Industrial Relations Commissions, supported by State Governments, will try a line of ‘business as usual' or ‘passive resistance’ to the new WorkChoices legislation, two senior IR lawyers have predicted.

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State Industrial Relations Commissions, supported by State Governments, will try a line of ‘business as usual' or ‘passive resistance’ to the new WorkChoices legislation, two senior IR lawyers have predicted.

John Lunny, a Partner in the Workplace Relations Group of law firm Phillips Fox, based in Brisbane, and Damian Sloan, a Partner at Middletons, told a Law & Finance seminar on the new IR legislation today that the State IRCs would ‘jealously guard their jurisdiction’.

‘I think in Queensland there will be a campaign of civil disobedience,’ said Lunny.

Jurisdiction may not be raised

‘Companies and unions may go into the Qld IRC, with State Government support, to have IR problems resolved, on the basis that neither side will raise the issue of jurisdiction.’

Sloan agreed: ‘The State Industrial Relations Commissions are very jealous of their jurisdictions,’ he said.

‘The State Governments will act as if it is “business as usual”. It will be like consent arbitration, until someone takes them on.’

Sloan said he recently took a case to the NSW IRC over an industrial matter not applying to the federal sphere because that was not specifically mentioned in the relevant Act.

‘That approach was the status quo,’ he said. ‘But it was heard by a Full Bench with four members, not the usual three.

‘Immediately we knew something was going on.

‘The Full Bench completely overturned the existing interpretation and said the Act applied to everyone, including in the federal sphere, unless they were explicitly excluded.

‘Someone said to me afterwards: “Damian, you picked the worst possible time to take this matter to the NSW IRC”.’

Tribunals to assert jurisdiction

Sloan said he expected challenges to State IRC jurisdictions would be denied by Commissioners, who would be supported by a Full Bench. The matter would eventually be settled in the Court of Appeal and then possibly in the High Court.

He said unions or employees, and employers, could appoint the State IRC to resolve a dispute, but it would have to act as a private arbiter, ‘it would not come under their jurisdictional powers’.

Lunny said he had recently seen a draft federal agreement where the State IRC was to resolve disputes in the first instance, but any appeal would go to the Full Bench of the Federal Commission.

‘I think that is a step too far,’ he said, ‘It won’t work.’

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State Governments' reaction to Federal IR agenda
 

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