A clear example where WorkChoices is not repealed by the Fair Work bill is the centralised national take-over of the State’s industrial relations systems covering all trading corporations.
There was no choice for businesses or unions to be able to use or remain in the State jurisdictions. Many companies had good reasons in their own interests to use a State jurisdiction.
Ever since the earlier paper for centralised IR power by then Minister Reith did not proceed, no detailed policy examination of the merits pro and con of the compulsion for the National system has been produced either by the Howard or Rudd government.
There is no substantial criticisms of the role or practices of the industrial umpires in the State systems. There is just the chant of ‘uniformity’.
There was always the ability for employers to go national. The ACCC paper recommending against the national system arguing for competitiveness between the systems was ignored.
I am opposed to more power in Sydney and Melbourne for national employer and union leaders. A centralised system in practice ignores employers and unions in the States.
Senators who represent their States should not easily accept the continuation of the centralised WorkChoices takeover.
Why not with the FWB at least give employers and unions a choice of which system they want? This is particularly the case where both parties want to use arbitration that is denied in the FWB.
Furthermore, although I am not familiar with the negotiations, I question the extent of the co-operation with the States over the FWB. The DPM, I am told, promised but did not deliver an intergovernmental agreement with the States and produce a draft of the FWB to them. This means that those corporate entities (including some State Owned Corporations) involuntarily taken up into the National system from the State systems will remain there. This will lead to legal uncertainty.
The Rudd government is working on the assumption that the States will hand over their remaining jurisdiction in the private sector, which is employees employed by sole traders and partnerships. This will destroy the viability of the State systems long term and the end of federalism. So be it, but I advocate that a strong national IR system is strong in the regions as well.
The FWB does not resolve the legal complexities of what is a ‘trading corporation’, especially for some government and community organisations. I know one case where a lawyer was dismissed unfairly from an Aboriginal Legal Rights Centre and it has taken four years of legal arguments and expense to arrive at the common sense view that such community organisations are not trading corporations and the individual is entitled to the State unfair dismissal hearing.
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