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BOOK REVIEW
| Andrew Stewart and George Williams, Work Choices: What the High Court Said, Federation Press, Sydney, 2007. pp. x + 190. $29.95 paper.
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| This book's title is an accurate description of its major theme: an informed account of the decision arrived at by the High Court in relation to the challenges of the Work Choices legislation. However, in doing so the authors provide an excellent and highly readable discussion of the developments from the 1980s that paved the way for Work Choices. In some respects, for reasons outlined below, this may be the strongest contribution of the book to a better understanding of contemporary industrial relations. |
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The book consists of 13 chapters, and is broken into three parts. The first of these is the 'Background', the second 'The Decision' and the third, 'The Implications'. |
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Part 1 consists of five chapters. The first is a lively introduction that sets the scene in terms of issues and broad outcomes. The second chapter analyses the Australian federal system, together with the landmark High Court decisions that have eroded the State's powers in terms of legislation and income. States have become dependent on Commonwealth grants for their operations, a contrary situation from that 'intended by many if not most of the framers [of the Constitution] that in the new nation the States would be the dominant partner'. |
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Chapter 3 explores labour relations and the Constitution. Though dealing with highly technical legal issues, this is a clearly written chapter and will be easily understood by the non-lawyer. It is an excellent and parsimonious synthesis of Constitutional developments in labour relations and the growth of federal encroachment. |
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The Work Choices legislation forms the substance of chapter 4. As well as providing the content, substance and distinctive features of the legislation, it also provides an account of the evolution of decentralism in the federal system since the 1980s. This chapter is useful reading for anyone wishing to understand the metamorphosis of the federal system from one of rigidity, uniformity and consistency to one of workplace relations. |
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Part 2 of the book consists of six chapters devoted to large extracts of the High Court decision concerning, respectively, the interpretation of the Constitution, the scope of the corporations power, the relationship between the corporations power and the industrial arbitration power, the exclusion of State laws, the making of laws through regulations, and other issues. Each chapter canvasses the views of the High Court majority (Gleeson C.J., Gummow, Hayne, Heydon and Crennan J.J.) and the separate dissenting views of Kirby J. and Callinan J. |
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There is no doubt that the authors have selected the most appropriate text from the judgements for their purpose. These texts suggest that the art of writing is far from a dead one when it comes to the High Court. I found the judgements exhibiting English at its best. That said, this part of the book is disappointing. To those of a legal bent, the judgements in their totality will be a necessity. To non-lawyers, the texts are far too discursive and in need of summary and part-explanation. Of the 100 pages in the second part, 94 pages consist of direct quotations from the judgements. Non-lawyers, at least, may have been better served by a synthesis of the majority and dissenting views on the matters in hand. |
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Part 3 is forward looking and seeks to analyse the implications for industrial relations as well as for federalism. The authors suggest that it would be simplistic the think that the judgement, which in its most stringent interpretation could reduce State parliaments to little more than debating societies, will spell the end of a hybrid system of industrial relations. They see that a number of unsettled, or poorly settled, constitutional issues may tip the scales away from centralism. One of these is the notion of a 'trading corporation'. There was no challenge to the established view that a 'trading corporation is one that has significant or substantial trading activities'. This has come to mean that charities, local councils, schools or sports clubs that generate as little as ten per cent of their revenue through trading activities (tuck shops and the like) can be treated in law as trading corporations. In this case, Justice Hayne hinted that this 'activities' test may have gone too far. The suggestion of some other definition may be taken up in the future and, if successful, would have significant consequences for the division of industrial powers between the States and the Commonwealth. |
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What ever the final outcome in terms of the division of industrial powers (if there ever is finality in these matters!), Steward and Williams do not see a return to a federal system based predominantly upon the industrial power of section 51(35) of the Constitution. This power relies on the existence of an interstate industrial dispute, and requires the establishment of a tribunal system to adjudicate on matters that the Commonwealth itself cannot deal with. The innovative use of the corporations power, not to mention the capacity to use the external affairs power more purposively, mean that Commonwealth governments may bypass the restrictions of the industrial power. Whatever the hue of government, it is likely that they will resile themselves to being third party interveners in tribunal hearings, rather than more directly seeking outcomes in line with their philosophy and ideology. |
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| University of Western Australia |
DAVID H. PLOWMAN | |
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