As prime minister, Beazley will have two options.
First, he could revert to the law in place prior to WorkChoices. This would be unacceptable. That law also had its problems and it would be a mistake to turn back the clock. To do so would miss an historic opportunity to improve our system of workplace laws.
The second option is to enact a new law that would achieve a fairer balance between the rights of workers and of employers and protect the right to collective bargaining.
Labor will have a number of constitutional avenues it can use to achieve this. Indeed, it will be better placed than the Howard Government to achieve its vision of what a national industrial law should look like.
The Federal Parliament can pass laws in the 40 different areas listed in section 51 of the constitution. However, it does not have a general power over industrial relations. The closest is the power over “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state”.
As the Howard Government and Keating Government before it found, this power is too inflexible to provide a broad enough foundation for a national industrial law. It does not apply to all disputes, nor can it be used to set up minimum general conditions on matters such as unfair dismissal, superannuation or parental leave.
This explains why both the Coalition and Labor have looked beyond this power. For the former, the focus has been on the power over “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”.
If the High Court upholds WorkChoices, this may herald a major expansion in the scope of the power. This will cut both ways. What the Howard Government might use for its own industrial laws, a future Labor government could apply for industrial laws to the opposite effect.
Even if the corporations power allows a national industrial law, it is silent on the content of the law. Just as the Howard Government has relied on the corporations power to set out the conditions of employees working for corporations in Australia, so might a Labor government use the power to set out a different set of conditions.
Labor could also turn to the power over “external affairs”, as famously relied upon by Prime Minister Bob Hawke in 1983 to prevent the damming of the Franklin River in Tasmania. The High Court found for Hawke that the Federal Parliament can pass laws that implement obligations Australia has assumed under international law.
A rich source of international law is the work of the International Labor Organisation. The Howard Government has not relied on these conventions because they tend to be consistent with principles such as collective bargaining, and thus ill-suited to a law like WorkChoices.
However, there is nothing to stop a Labor government using the power for a law that will apply to all employees, whether or not they work for a corporation. The possibilities can be seen in the Keating Government's industrial law changes of 1993 and 1994. They imposed obligations on employers as to minimum wages, equal pay, termination of employment, discrimination in employment and parental leave.
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