Academic journal article The Economic and Labour Relations Review : ELRR

The Coalition and Voluntary Industrial Agreements: Some Constitutional Questions

Academic journal article The Economic and Labour Relations Review : ELRR

The Coalition and Voluntary Industrial Agreements: Some Constitutional Questions

Article excerpt

1. Introduction

This article is directed at a consideration of the constitutionality of the Coalition's industrial aagreements policy. It does not concern itself with the correctness or otherwise of the industrial agreement policy as matters of industrial relations. It should be noted at the outset that the article is based upon certain assumptions, some concerning policy contents. For example, it is assumed that the policy in its final form will be aimed broadly at re-directing Australia's industrial relations system from one primarily based upon compulsory arbitration, to one centering on voluntary agreements between employers and employees.

Further assumptions are made about certain legal aspects of the implementation of the policy. First, and centrally, it is assumed that the policy will need to be effected by the passage of Commonwealth legislation. Secondly, such an Act will necessarily deal at least with certain key regulatory matters. These would include the status of 'voluntary' and 'enterprise' agreements in law generally; the relationship of such agreements with any remaining award system which might continue to exist at Commonwealth level; the relationship of agreements with State (as opposed to Commonwealth) industrial laws and awards; and agreement registration.

Of course, the key question in considering the constitutionality of the Coalition policy is whether the Constitution authorizes the enactment of such legislation by the Commonwealth Parliament. This in turn raises a number of issues. First, one must consider whether there is any available head of power in the Constitution under which the Commonwealth may legislate. Secondly, one must assess whether, even if such a head of power exists, it is of such a nature that, were it resorted to, serious legislative and regulatory gaps would nevertheless arise. Finally, one must determine whether other major complications of a constitutional nature might arise.

2. Constitutional Heads of Power

Real difficulties attend the enactment of industrial agreement legislation by the Parliament of the Commonwealth. Put simply, there is no fully satisfactory head of power for the passage of such legislation. This section reviews the potential heads of power.

2.1 Section 51 (35)--conciliation and arbitration power No detailed consideration will be given to this power, as it is generally (and rightly) conceded that it would not justify the enactment of comprehensive industrial agreement legislation. In general terms, the power is one which of its nature looks to laws which deal with aggregated industrial interests, whereas the policy of the Coalition looks to the legislative individualisation of precisely those interests. The conciliation and arbitration power simply would be inapt for industrial agreement legislation.

More specifically, two very obvious problems would attend the use of section 51 (35) for the enactment of this type of legislation. First, it would be extremely difficult to characterise a law with respect to voluntary industrial agreements as a law with respect to 'conciliation' and 'arbitration'. Secondly, it could be difficult to make out the element of 'inter-stateness' which is an indispensable element of a law made under section 51 (35). The effect is that a Coalition government would have to look elsewhere in the Constitution for an appropriate head of power.

2.2 Section 51 (20)--corporations power

The corporations power has been immensely expanded by the High Court over the last twenty years, and attained its greatest extent in Tasmania v. Commonwealth (the Dams case) ((1983) 46 A.L.R. 625). The question in the present context is whether it would extend so far as to substantially justify a law concerning voluntary industrial agreements? The immediate issue is whether section 51 (20) would allow the Commonwealth to enact a law concerning employment agreements entered into between a corporation and its employees. …

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