High Court challenge to award stripping

Last week the Construction, Forestry, Mining and Energy Union (CFMEU) 
challenged the constitutionality of the Howard Government's stripping of 
awards in the High Court.

A Full Bench heard what is a test case of the constitutional validity of 
the award simplification process which was a key aspect of the Workplace 
Relations Act introduced in 1997.

Under the Act the Industrial Relations Commission (IRC) was required to 
remove any provisions which did not fit within a specified list of 20 
"allowable matters".

The remaining "allowable matters" were basically restricted to wages, hours 
of work, various leave entitlements and superannuation.

The stripping back of awards has resulted in the loss of many important 
working conditions and trade union rights.

The coal mining companies were among the first employers to use the new 
laws and have the mining industry award stripped.

Amongst those clauses removed were those providing for job security for 
coal miners: preference in employment for retrenched mineworkers, seniority 
on retrenchment (last on, first off), the right to a job when the coal 
owners are recruiting again and preference in employment to unionists.

When Justice Boulton of the IRC stripped the award (July 1998) he said that 
his decision was not based on the merits of the particular clauses of the 
award, he was simply applying the legislation in removing them.

In other words, he was not arbitrating (the customary method of determining 
award provisions) but merely doing what was required by Parliament.

Richard Kenzie QC, appearing for the CFMEU, argued in the Court that the 
Constitution only gave the Parliament the power to set up a mechanism for 
the resolution of disputes by conciliation and arbitration — but not to 
compel a Federal arbitrator to include or exclude particular provisions in 
awards.

Section 51 (xxxv) of the Constitution gives Parliament the power to make 
laws with respect to "Conciliation and arbitration for the prevention and 
settlement of industrial disputes extending beyond the limits of any one 
State".

"It's an interesting power; it's different to all the other powers in the 
Constitution because it doesn't give the Parliament the power to do 
something — it only gives them the power to ask someone else to do it for 
them", CFMEU legal officer Tony Slevin said.

The CFMEU is arguing that the Workplace Relations Act seeks to regulate 
conditions of employment by direct legislation.

The union's case is in the name of the union and one of its members Garry 
Barnes, a 42-year-old out-of-work mineworker from Clermont in Central 
Queensland.

He was retrenched by Rio Tinto on July 20, 1998, one of the first to be 
retrenched after the award had been stripped.

Mr Barnes was also one of the first employed at the mine. He was entitled 
to the benefits of the job security provisions of the award. When he 
started at the mine in 1982 he was told he would have a job for the rest of 
his life.

After the laws were changed the company moved to retrench Mr Barnes, 
claiming the need to be competitive in a depressed coal market.

He was left without a job and with few prospects for further employment.

Under the previous laws he would at least receive preference for employment 
if the industry picked up again.

The CFMEU is arguing that Mr Barnes should never have been sacked. The 
Parliament took away his rights to job security when it had no power to do 
so.

Since the award was varied there have been over 2,000 redundancies in the 
coal industry. Those dismissed have been left on the scrap heap, their 
rights to be re-employed have been taken away by the award changes.

In 1920 the Waterside Workers' Federation ran an important case where the 
High Court decided that the Constitution did not allow the Parliament to 
regulate wages and conditions.

The Court said in that case that "it is clear that this power does not 
authorise the conditions of employment by direct legislation, e.g. to 
prescribe by Act of Parliament the minimum rate of wage to [be] paid or the 
maximum number of hours to be worked".

The CFMEU case has important ramifications far beyond the coal industry. If 
the union is successful, then the IRC will have to revisit all of its 
awards and re-insert those provisions that have been removed.

Those workers who directly rely on the award for their wages and working 
conditions would not be the only ones to benefit from a win in the High 
Court.

All individual contracts (Australian Workplace Agreements) and enterprise 
agreements would have to be revisited as the award standard against which 
the "no disadvantage" test applies would be raised.

A win would be a big setback for the Howard/Reith Government's second wave 
legislation which is currently before Parliament. It seeks to remove 
superannuation, long service leave, jury service and skills based 
classification structures from awards.