Sue Bolton
The Queensland, Tasmanian, South Australian and Western Australian Labor governments have now joined the NSW Labor government's appeal to the High Court against the federal government's use of the corporations powers to override state industrial relations laws. Victoria is the only state that has not yet joined the High Court challenge.
NSW industrial relations minister John Della Bosca outlined the two main grounds for the appeal:
1. that the federal laws exceed the scope of the corporations powers in the constitution, and that all constitutional powers should be read in context, limiting the federal government to passing laws about interstate industrial disputes;
2. the corporations powers are not meant to allow the exploitation of individuals, but are instead meant to protect individuals from corporations.
In the January 31 Courier Mail, Queensland premier Peter Beattie stated: "There are grounds to argue that WorkChoices gives the Federal Government undue control over the normal activities of the states by subjecting employment relationships entirely to federal control." He added: "If the federal government was to succeed, it would set a precedent enabling it to interfere in almost every sphere of traditional state jurisdiction, such as town planning, environmental controls, tourism and all aspects of business and industry."
It could be a year before the High Court rules on the challenge.
Previous federal governments have used the corporations powers to override state legislation and make national industrial relations laws. In 1977, the Malcolm Fraser Coalition government used those powers to outlaw secondary boycotts by unions. In 1993, the Paul Keating Labor government used them to establish non-union collective agreements, known as enterprise flexibility agreements. Then in 1996, the John Howard government used the powers to enact aspects of the Workplace Relations Act.
Whatever the outcome of the states' High Court challenge, it is not clear which workers will be covered by the new federal industrial relations system. In his submission to the Senate inquiry into the Work Choices legislation, Professor Andrew Stewart from the Flinders University Law School said: "The new federal system proposed will apply to all commonwealth agencies, all employers in the territories, all employers in Victoria (with the partial exception of the state of Victoria itself), and in the other states, all trading, financial and foreign corporations. Employers who fall within these categories will have no choice as to whether to 'opt in' to the new federal system. Even if they are presently covered by state awards or agreements, those instruments will be deemed to be federal agreements, stripped of any 'prohibited content' and then effectively frozen so as to induce the making of new workplace agreements."
Stewart says there is also no clear definition of which employers are covered by the new federal system. The definition of "employer" hinges on how the courts interpret the term "trading corporation".
He says the prevailing view is that even not-for-profit bodies such as local councils, universities and some community organisations qualify as "trading corporations" because they have "significant trading activities". However, the scope of the new regime could be limited by the High Court adopting a more limited definition of trading corporations.
Stewart points out that another unclear area relates to the fact that many state public sector corporations provide "governmental" services. Where these have significant trading activities, they may qualify as trading corporations and hence be subject to regulation under the federal regime.
The government has repeatedly claimed that the expanded federal system would cover at least 85% of the work force. However, the Queensland government estimates that it would cover 75% of Queensland workers, and SA, WA and NSW estimate that it would cover less than 60% of workers in their states.
The important question for the union movement is how central the states' High Court challenge is to the campaign against Work Choices.
A High Court decision in favour of workers would be very welcome, but this can't be relied on, especially because the Coalition government has stacked the court with conservative judges. Further, a favourable High Court decision would apply to only some workers, with half or more still being subject to Work Choices draconian provisions.
Unions have historically shifted back and forth between state and federal awards in order to escape state or federal governments' anti-union laws.
In 1993, Jeff Kennett's Coalition government in Victoria handed over its state industrial relations system to the federal government. The union movement launched a massive campaign against the move, mobilising more than 100,000 workers onto the streets on more than one occasion.
However, the federal Labor government was up for re-election in 1993 and the party exerted huge pressure on the unions to drop their campaign in case it damaged Labor's electoral prospects. The movement wound down the campaign to focus on getting Labor re-elected and shifted their members onto federal awards to escape the Kennett government's attack.
As soon as a substantial number of union members were moved onto federal awards the union movement dropped the campaign in defence of the 350,000 Victorian workers ineligible for federal award coverage. These workers had to survive on minimum conditions, similar to those the Howard government is now trying to foist onto all workers.
Now that the Work Choices legislation has passed, unions covering state public sector workers are shifting members back to state awards. But shifting back and forth between state and federal awards is not as longer term solution, because there will always be workers left behind, and this weakens the union movement overall.
Likewise with the High Court challenge: even if the High Court rules 100% in the unions' favour, a substantial proportion of workers will not benefit because they do not have access to state industrial jurisdictions.
If the union movement drops its public campaign to make Work Choices null and void, and instead relies on the slim possibility of a win in the High Court, the movement will be pushed back.
It is not too late for the union movement to begin a nationwide campaign of industrial action and mass protests to put employers and the government on notice that unless the Work Choices legislation is withdrawn, profits will be affected. That is what is needed right now.
From 91×ÔÅÄÂÛ̳ Weekly, February 8, 2006.
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