The Guardian June 21, 2000

Union loses court challenge to award stripping

The Construction Forestry Mining and Energy Union (CFMEU) has vowed to 
intensify its political and on-the-job campaign for industrial justice 
following a Full Bench of the High Court ruling against the union's 
constitutional challenge to the Howard Government's award-stripping 
provisions of the Workplace Relations Act. The decision was by the narrow 
margin of four to three.

CFMEU Mining and Energy Divison General President Tony Maher described it 
as "controversial", with the High Court judges contradicting each other in 
their judgements.

"We will continue to fight", said Mr Maher.

"We will defend our conditions on the job and we will intensify our 
political campaign to reverse these rotten laws which rob workers of rights 
and conditions and victimise many of those who are prepared to fight for 

Under the Coalition Government's Workplace Relations Act all award 
provisions except for 20 specified "allowable matters" are to be stripped 
and became unenforcable.

The Australian Industrial Relations Commission was obliged to strip the 
non-allowable award matters from union awards which govern legally 
enforcable wages and working conditions.

The only way unions could ensure the continuation of these former award 
provisions was to renegotiate them with employers in enterprise agreements.

Important matters stripped

The provisions stripped from awards included such important matters as rest 
periods, occupational health and safety, rostered days off, limits on 
maximum hours or the spread of hours, restrictions on the use of casual and 
contract labour, consultation over workplace change, preference to 
unionists and hiring and firing rules such as "last-on, first off".

The question of seniority is of considerable importance to the Mining 
Division of the CFMEU because of the cyclical nature of the industry and 
the large number of mineworkers who are being retrenched.

The Government was obviously worried about the Court outcome, it was 
exploring ways of using corporations law to get around an unfavourable 

Justices Mary Gaudron, Michael Kirby and Michael McHugh found the award-
stripping laws in breach of the Constitution.

"This decision involves a radical enlargement of the Federal legislative 
power under ... the Constitution. That enlargement will not go unnoticed", 
said Justice Kirby.

Up until this decision it was widely accepted that the Federal Government 
could not directly set wages and conditions under the conciliation and 
arbitration powers of the Constitution.

That is why such matters were delegated to the Industrial Relations 
Commission as an "independent umpire".

The decision has, not surprisingly, pleased the employers and Workplace 
Relations Minister Peter Reith, but it might one day come back to haunt 
them with the enforcement of decent wages and conditions by a progressive 

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