The Fair Work Bill based on the Corporations power is the dominance of corporate law over labour law.
The High Court in the ‘WorkChoices’ decision held the Australian Constitution’s Corporations power allowed the Howard government legally the power to reduce the role of unions and to effectively extinguish workers rights and the IR systems created by State governments. The Rudd government has used the Corporations power for the FWB.
What has not been done is to use as well the traditional Constitutional Labour power section 51 (xxxv) to settle and prevent industrial disputes used for over 100 years for the conciliation and arbitration system and the making of federal awards. I add also the foreign affairs power to implement UN and ILO Conventions.
The government did not have a mandate to reject reliance on the Labour power and not include all of the powers formerly with the AIRC for Fair Work Australia FWA.
I adopt the arguments of Professor Ron McCallum that ‘industrial relations laws based on upon the corporations power alone will be centred around corporations to the detriment of flesh and blood persons who interact with corporations’.
They ‘could not for long maintain the balance between employers and employees’ because ‘inevitably they will fasten upon the economic needs of corporations and their employees will be viewed as but one aspect of the productive process in our globalised society’.
Instead of using ‘all the powers’ available as ALP policy traditionally supports, the government relies almost exclusively on the Corporations Power which deals with the rights and obligations of trading corporations.
Undue reliance upon the Corporations Power puts both employment rights and equitable workplace outcomes subordinate to the interests of corporations. This is not a balanced approach to labour law legislation.
This is an historical departure from the creation of independent tribunals to resolve industrial disputes through conciliation and arbitration, which provide rights to unions as representatives of workers, in recognition of inequality of power in the workplace.
The award system created by these tribunals did, said former High Court Justice Michael Kirby, ‘profoundly affect the conditions of employment, and hence of ordinary life, of millions of Australians’. In his dissenting judgement in the ‘WorkChoices’ case, he found that the Howard Government’s laws were unconstitutional and with great insight said that would lead to unfairness.
‘If the Federal Parliament can directly enact provisions that generically fall within the description of laws with respect to the subject of industrial disputes, such issues are likely to be decided by unilateral determination according to political, sectional or exclusively economic factors focused on the propounded subject of the power, namely the corporation, that is, the employer in the posited industrial dispute. ‘
The risk is that FWA, unlike the AIRC that had discretion to solve disputes, is not as an independent tribunal that has the power to provide a guarantee of a fair hearing and the charter to balance the power of the employer in the workplace.
I do not make a submission about but support union and ACTU concerns over the creation of the ‘modern’ safety-net. The consequences of political direction by the DPM under the Corporations power are clear, as the AIRC (and Fair Work Australia in 2010) has not determined the National Employment Standards (NES) or the award modernisation process. They have been politically determined without recourse to normal AIRC processes on merit.
The NES were legislated following an enquiry by a committee of the DPM’s Department that took submissions on a draft prepared by the Department. No significant changes were made to the draft despite submissions by unions that some of the standards were inadequate in content and unenforceable and could by no means be described as rights.
The same complaint can be levelled about award modernisation, as the AIRC explained, because it was acting on the basis of a Ministerial Request, its task was to apply the request, not to determine the issue independently.
I support union concern over the deregulation of awards by political decree.
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