THE HIGH Court has rejected a challenge to the WorkChoices Act brought by State Governments and the union movement, a decision that some believe has cemented the future of the new regime.
While the decision was widely anticipated, speculation had been mounting that some peripheral parts of the Act could be struck down. While the challenge was rejected in totality, Justices Kirby and Callinan dissented for different reasons, and would have struck down the WorkChoices Act.
“Once a constitutional Rubicon such as this is crossed, there is rarely a going back,” said Justice Kirby.
One concern was that the blanket exclusion of state laws might be dismissed, meaning (among other things) that state unfair contracts laws might continue to apply to WorkChoices Employers.
The ramifications of this decision are therefore seen to extend beyond industrial relations, to the entire balance of power between federal and state governments. Increasingly, there are fewer and fewer areas which are the sole domain of state governments and from which the Federal Government is excluded.
The High Court’s decision has been claimed a radical one by Unions NSW. It sees the end of the protection of worker’s rights under the Constitution. “This result should send a shudder through every nurse, teacher, police officer and every other state employee - your conditions are no longer safe.” said John Robertson, Unions NSW secretary.
However, the largest NSW business organisation, ABLState Chamber, claimed the decision backed its support for the Act. “WorkChoices has already won the economic argument, with increasing employment, record low disputations and falling terminations…. Increasingly employers and employees see the benefit of these reforms particularly in agreement making,” said Kevin MacDonald, CEO of ABL State Chamber.