The High Court today rejected a challenge from the Construction, Forestry, Mining and Energy Union to the Federal government’s simplification of industrial awards in the Workplace Relations Act.
The decision was supported by 4 judges (Gleeson, Hayne, Gummow and Callinan) and opposed by 3 (Kirby, McHugh and Gaudron).
Except for Gummow, the majority judges were appointed by the Howard government. The minority judges were all appointed by the Hawke or Keating governments.
The decision upholds those sections of the Workplace Relations Act which allow for “award stripping”. Thousands of industrial awards have been cut down to 20 allowable matters. The decision allows the government to continue limiting award conditions.
A stinging dissenting judgement was issued by Mr. Justice Michael Kirby who said:
“The decision of this Court, in my opinion, breaks nearly a century of previously unbroken constitutional authority. It upholds, under the conciliation and arbitration power, direct alteration by the Parliament of an existing award made by the process of conciliation and arbitration in the settlement of an interstate industrial dispute. It allows the Parliament to change the internal balances and compromises within an award, which, in this instance, has the effect of benefiting one side in the industrial relationship. Were Parliament allowed to do so, such a change could as easily have the effect of benefiting the other side. The altered award is no longer the outcome of the constitutionally permissible process. It is now simply the product of federal legislation. The size or justice of the change is not the proper concern of this Court. But the novel enhancement of the legislative power of the Parliament is. This decision involves a radical enlargement of the federal legislative power under s 51(xxxv) of the Constitution. That enlargement will not go unnoticed. Respectfully, I dissent.”