ANY DOUBT over the validity of the WorkChoices provisions was comprehensively settled in the High Court last week.
Mordy Bromberg, a senior counsel who represented Victoria in the High Court case, believes the decision to be enormously significant.
“Having seen the reaction of some of the judges during the running of the case, I don’t think it’s surprising that the states were unsuccessful,” Bromberg said. “What I think is surprising is the extent of the victory for the Commonwealth.
“I think most people would have expected that WorkChoices would at least suffer some damage at the edges, rather than at its core,” Bromberg said. “And that didn’t happen.”
Bromberg expects employment lawyers will be kept busy interpreting “a very complex piece of legislation”. But he said the dominant position the Federal Government now holds should prevent further litigation on WorkChoices.
“Firstly, I think that unions may be reluctant to bring litigation in circumstances where they will have other more fundamental core needs to service in a hostile environment,” he said. “And secondly … in circumstances where the Coalition controls the Senate … any interpretation that a court might make, favourable to the union position, is liable to be the subject of an amendment to the legislation.”
Greg Robertson, partner at Harmers Workplace Lawyers, was equally surprised at the extent of the Federal Government’s victory, though the essence of the decision was to be expected.
“There seemed to be a lot of people who thought perhaps that the part on unions would be invalid, even those who thought the rest of it would survive,” he said.
“[But] for lawyers it is, in one sense, not an unexpected decision. It’s a typical lawyers’ decision — very legalistic in a lot ways. But that’s they way you read the Constitution these days.”
As the High Court expressly stated that it would not rule on what made up a constitutional corporation, “that leaves some areas still uncertain,” Robertson said. “Local government is one of those, [and] a number of fairly large charities, [in] that they have trading aspects to their nature.”
This means that difficulties still exist in dealing with large charities, where their trading components are very small in terms of the overall aspect of the trading, Robertson said.
David Ey, partner and head of Piper Alderman’s employment relations division, cited other areas of uncertainty.
“What is the true scope of the ‘operational reasons’ exclusion of unfair dismissal claims; how will the ‘prohibited content’ restrictions on workplace agreements be interpreted in specific cases; and how will the ‘reasonable additional hours’ rules be interpreted?” he asked. “We can expect a steady stream of case law for some time to come.
“Some interesting things to watch will be the extent to which the Australian Industrial Relations Commission will stay involved in dispute resolution; the potential development of common law remedies for dismissal where an unfair dismissal remedy is excluded; and the way the Office of Workplace Services will interpret and police the laws on things such as applying duress to make an Australian Workplace Agreement,” Ey said.
Ey expects there will “be even more ‘fine tuning’, as the government calls it, in future”, particularly given that some employees still sit outside the reach of the WorkChoices provisions.
“The decision doesn’t take the Federal Government any further towards creating a national industrial relations system,” Ey said.
“For the time being at least, we will continue to have state industrial systems, outside of Victoria, covering employers who fall outside of Work Choices, [such as those in] partnerships, sole traders and some state government employees.”