Howard Govt IR laws would force individual workers to High Court to challenge 'fairness test' rulings

04 June, 2007 ‘Tell ‘em they’re dreaming’ — would surely be the response of Darryl Kerrigan the character played by Michael Caton in the famous Australian film ‘The Castle’ to revelations that workers will be forced to go to the High Court to challenge a compensation ruling under the new ‘fairness test’.

Legal advice obtained by the ACTU has confirmed that the only way a worker can question a ruling on their AWA individual contract under the Howard Government’s new ‘fairness test’ would be to lodge an appeal to the High Court. 

ACTU Secretary Greg Combet said:

“This is ridiculous and shows how rushed, ill-considered and unfair the Government’s WorkChoices industrial relations laws really are. 

“Anyone running a case in the High Court can expect to pay up to $25,000 in legal costs.  But this is the only option open to workers under the Howard Government’s Workchoices IR laws if they want more compensation for losing penalty rates, shift allowances, overtime loadings or other award conditions under an AWA individual contract,” said Mr. Combet.

“Changes to the Government’s WorkChoices industrial relations laws currently before Parliament require the Howard Government’s new ‘Workplace Authority’ to rule whether each new AWA individual contract signed since May 7 this year passes the Government’s new so-called ‘fairness test.’

“The Government has employed 600 new officials to administer the changes and scrutinise the 1,000 AWA individual contracts that are being registered every day under the new IR laws.

“However, legal advice obtained by the ACTU shows the Government’s WorkChoices laws provide no practical mechanism for workers to appeal against a decision of the Workplace Authority:

The only theoretical possibility for an employee aggrieved by a decision of the Workplace Authority Director that finds that an AWA individual contracts satisfies the fairness test is to make an application to the High Court for a Writ  of Mandamus or other prerogative writ under Section 75(v) of the Constitution. (Advice by legal firm, Maurice Blackburn Cashman)

“Unions are also very concerned that the Howard Government’s amendments to the WorkChoices laws allow the Workplace Authority to conduct the ‘fairness test’ in secret,” said Mr Combet.

“There is no obligation in the new laws for the Workplace Authority to contact employees to check whether they are satisfied with the compensation they receive for the loss of penalty rates, overtime loadings, rest breaks and other award conditions,” Mr Combet said.

“What this means is that workers who are worried they have not been fully compensated for losing their award conditions have no right to give or receive information from the Workplace Authority — absurdly, their only option is to lodge an expensive appeal to the High Court.

“The Federal Government’s IR laws strip Australian workers of even their most basic rights in the workplace.  The only way to fix these laws is to get rid of them,” said Mr Combet.

Contact Details
Ian Wilson
Ph: 0408 513 849
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