Future directions for workplace bargaining and aged care under a post 2005 Howard government

Abstract

ON THE 1ST OF JULY 2005, the Howard Government took control of both the House of Representatives and the Senate and substantial reform of the nation?s industrial relations framework is likely to proceed. In order to understand the implications of the proposed industrial relations (IR) reform agenda on aged care, it is necessary to briefly revisit the past. Historically, the ability of the Commonwealth Parliament to regulate industrial relations was construed in the context of Section 51 (xxxv) of the Australian Constitution Act 1900 (Cwlth) that enabled the Commonwealth to make laws concerning ?conciliation and arbitration and the prevention and settlement of industrial disputes extending beyond the limits of any one state?. Since 1904, the Commonwealth, with the states following shortly thereafter, established a regime of industrial tribunals responsible for third party independent conciliation and arbitration, overseeing a system of legally binding industrial awards covering wages and employment conditions. This system, in the words of one of its chief architects, Justice Higgins, ? . . . would substitute for the rude and barbarous processes of strike and lock-out?1 (page 2). By 1991, Australian wages policy gradually shifted from centralised arbitration, elevating workplace agreements to the status of government policy on both sides of politics.2 This process accelerated labour market deregulation, shifting industrial relations and human resource issues to the enterprise level.3 The shift towards workplace agreements post 1990?s was underpinned by a bold reinterpretation of Section 51 (xx) of the Constitution Act that enabled the Commonwealth to regulate the affairs of ?trading or financial corporations formed within the limits of the Commonwealth?, thus, by definition, including regulating employee relations of corporations. The use by the Commonwealth of these powers has extended the jurisdiction of the Australian Industrial Relations Commission (AIRC) to include the making and approving of certified agreements made by constitutional corporations or in settlement of an industrial dispute. Other types of employers such as sole traders, churches and charities, partnerships and unincorporated associations remained covered by state industrial jurisdictions. (On these powers of the Commonwealth, see State of