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Workplace Relations Amendment (Work Choices) Act 2005
This guide contains links to parliamentary resources relating to passage
of the Workplace Relations Amendment (Work Choices) Act 2005.
Summary and current status
Regulations
High Court challenge and commentary
State responses
Legislative documents
Parliamentary consideration
Parliamentary Library publications
Key government documents
Papers on the constitutionality of a national employment
law
Summary and current status
The Bill for this Act was introduced into the House of Representatives
on 2 November 2005, standing orders were suspended on 10 November (that
is, consideration of the Bill was ‘guillotined’), and the Bill
was passed by the House on the same day.
The Senate referred the Bill to a Committee after its introduction into
the House, and a report
was tabled out of session on 22 November.
The Bill was introduced into the Senate on 10 November 2005, urgency was
declared on 1 December (that is, consideration of the Bill was ‘guillotined’),
and the Bill was passed with amendments on 2 December
2005.
The House of Representatives considered the amendments on 7 December,
and accepted them.
The Act was given Royal Assent by the Governor-General
on 14 December 2005, and is available on the ComLaw website in its final
form as Act
of Parliament No. 153 of 2005. An outline of the commencement dates
for parts of the Act was given by Mr Andrews on 7
December 2005; the bulk of the Act came into force on 27 March
2006 [proclamation].
Latest
version of the Workplace Relations Act 1996.
Regulations under the Work Choices
Act were made on 17 March 2006 [media
release]:
On 18 April 2006 the Minister announced that amendments would be made
to the recordkeeping requirements in the regulations (media
release). The amendments were registered on 4 June 2006: Workplace
Relations Amendment Regulations 2006 (No. 2).
On 21 September 2006 further amendments were made to the Workplace Relations
Regulations 2006 by the Workplace
Relations Amendment Regulations 2006 (No. 3). These amendments extended
the deadline for implementation of record-keeping requirements to March
2007, and sought to ensure that workers taking sick leave would not be
penalised. Brad Norington, ‘Howard
IR shift protects sickies’, The Australian, 22 September
2006, p. 1.
On 13 November 2006 the Minister announced that further amendments would
be made to both the Act and the Regulations; these would deal with redundancy
pay, leave entitlements, stand-down arrangements, cashing-out of leave,
and record keeping requirements (media
release). These proposals were included in the significant Government
Amendments proposed on 28 November 2006 to the Workplace Relations
Legislation Amendment (Independent Contractors) Bill 2006 (Supplementary
Explanatory Memorandum). The Bill had previously been considered by
a Senate
Committee which reported on 25 August; the amendments were thus not
subject to Committee scrutiny.
High Court challenge and commentary:
The constitutional validity of the Workplace Relations Amendment (Work
Choices) Act 2005 was challenged in the High Court of Australia by
the states of New South Wales, Queensland, South Australia, Tasmania,
Victoria and Western Australia, as well as by the Northern Territory and
the Australian Capital Territory. Directions hearings were held on 8
February, 9
March and 12
April 2006 [transcripts]. The case itself was heard on 4–11
May 2006. Challenges by the Australian Workers Union, Unions NSW and other
unions were heard at the same time as the challenge by the states and
territories. A decision
on these challenges was handed down on 14 November 2006, with the Court
deciding 5–2 in favour of the validity of the legislation (Justices
Kirby and Callinan dissenting).
Directions hearings on a separate challenge by the Seamens Union and
others were heard on 12
April and 17
May 2006 [transcripts]; this challenge was postponed pending the outcome
of the main challenge to Work Choices.
High Court hearing transcripts:
4
May 2006
5
May 2006
8
May 2006
9
May 2006
10
May 2006
11
May 2006
17
May 2006
High Court judgment: [2006]
HCA 52 (14 November 2006)
Commentary on the cases’s importance for Australian
federalism:
Chris Merritt, ‘Federalism
on notice’, The Australian, 20–21 May 2006,
p. 27.
The Workplace Relations Case - Implications for the States (NSW
Parliamentary Library, November 2006)
State responses
New South Wales passed the Industrial
Relations Amendment Act 2006 and the Public
Sector Employment Legislation Amendment Act 2006 (assent to both Acts
on 13 March 2006) to extend ‘the powers of the IRC to adjudicate
on common law contracts between bosses and workers’ (Australian,
8 March 2006) and to quarantine state-sector workers from coverage by
Work Choices by making them the direct employees of the Government rather
than of individual statutory corporations [Second
reading speech, 7 March 2006]. The Industrial Relations (Child
Employment) Act 2006 sets minimum conditions of employment for under-18-year-olds.
The Industrial Relations Further Amendment Act 2006 relocates
injured workers’ reinstatement provisions from the Industrial
Relations Act 1996 to the Workers Compensation Act 1987,
making it clear that the Work Choices Act (Cth) does not apply [Second
reading speech, 14 November 2006].
On 7 December 2006 South Australia passed a Statutes
Amendment (Public Sector Employment) Act 2006 to move employees of
government-owned corporations out of the reach of the federal legislation.
The Queensland Industrial Relations Commission released its Final
Report, Inquiry into the impact of Work Choices on Queensland workplaces,
employees and employers, on 6 February 2007.
Estimates hearings, 2006
The Work Choices Act was discussed in Senate estimates hearings on 29
May and 30
May 2006 [transcripts].
Legislative documents
Summary of the Bill: This Bill amends the Workplace
Relations Act 1996 in relation to: creation of a national workplace
relations system, including the establishment of the Australian Fair Pay
Commission (AFPC) which will set and adjust minimum and award classification
wages, minimum conditions of employment; direct bargaining between employers
and employees; the role of the Australian Industrial Relations Commission,
particularly in relation to regulation of industrial action; a simplified
system of awards; transmission of business rules; protection of key award
conditions in bargaining processes; dispute settlement procedures; extension
of the compliance regime; transitional arrangements; and provides for
the renumbering of the Act (this summary is from the Senate
Bills List entry)
Parliamentary consideration
House of Representatives
Debates (Hansard)
26
May 2005: ministerial statement by the Prime Minister
2 November
2005: introduction and Second Reading (pp. 1–19)
3 November
2005: Second Reading (pp. 3–47, 68–9; PDF pp. 19–63,
84–5), questions (pp. 47–55 passim; PDF pp. 63–71),
Matter of Public Importance debate (pp. 59–66; PDF pp. 75–82)
7 November
2005: questions (pp. 16–24 passim; PDF pp. 32–40),
motion (pp. 25–7; PDF pp. 41–3), Second Reading (pp. 53–97;
PDF pp. 69–113)
8 November
2005: questions (pp.1–10 passim; PDF pp. 17–26),
motion (pp. 11–15; PDF pp. 27–31), Second Reading (pp. 29–79;
PDF pp. 45–95)
9 November
2005: Second Reading (pp. 10–45, 68–101; PDF pp. 26–61,
84–117), questions (pp. 46–52 passim; PDF pp. 62–8),
adjournment (pp. 101–5 passim; PDF pp.117–21)
10
November 2005: Second Reading, consideration in detail, Third Reading,
motion for committee inquiry (pp. 1–38; PDF pp. 17–54),
questions (pp. 62–8 passim; PDF pp. 78–84), Matter
of Public Importance debate (pp. 73–80; PDF p. 89–96), adjournment
(pp. 83–87, 110–14 passim; PDF 99–103, 126–33)
5
December 2005: message from the Senate returning the Bill with amendments
7 December
2005: consideration and approval of Senate amendments, motion to
refer to a committee (pp. 8–71; PDF pp. 26–89)
Votes and Proceedings
2
November 2005: introduction and Second Reading (pp. 711–20;
PDF pp. 1–10)
3
November 2005: Second Reading, questions, Matter of Public Importance
debate (pp. 732–4; PDF pp. 2–4)
7
November 2005: motion (pp. 740–3; PDF pp. 2–5), Second
Reading (pp. 745–6 ; PDF pp. 7–8)
8
November 2005: motion (pp. 749–50; PDF pp. 1–2), Second
Reading (pp. 752–3 ; PDF pp. 4–5)
9
November 2005: Second Reading (pp. 756–7, 759; PDF pp. 2–3,
5)
10
November 2005: Second Reading, consideration in detail, Third Reading,
motion for committee inquiry (pp. 763–73; PDF pp. 1–11),
Matter of Public Importance debate (p. 776; PDF p. 14)
5
December 2005: message from the Senate returning the Bill with amendments
7
December 2005: consideration and approval of Senate amendments,
motion to refer to a committee (pp. 853–9;PDF pp. 5–11)
Senate
Debates (Hansard)
12
October 2005: referral to Committee (pp. 112–29; PDF pp. 126–143)
8
November 2005: a motion to extend the Committee inquiry was defeated
(pp. 42–50; PDF pp. 56–64)
9
November 2005: questions (pp. 42–50 passim, PDF pp.
56–64), motion to take note of answers (pp. 52–6 ; PDF pp.
66–70), adjournment (pp. 93–5; PDF pp. 107–9)
10
November 2005: introduction and Second Reading (pp. 107–12;
PDF pp. 121–6); also questions (pp. 47–51; PDF pp. 61–5),
motion to take note of answers (pp. 58–62; PDF pp. 72–6)
28
November 2005: Second Reading (pp. 6–15, 54–81; PDF
pp. 20–29, 68–95); also a question (p. 18–20; PDF
pp. 32–4)
29
November 2005: Second Reading (pp. 1–14, 54–83; PDF
pp. 13–26, 66–95); also questions (pp. 14–21; PDF
pp. 26–33 passim)
30
November 2005: Second Reading (pp. 5–33, 84–93; PDF
pp. 19–47, 98–107); also questions (pp. 35–7, 44–50;
PDF 49–50, 58–63 passim)
1
December 2005: declaration of urgency, Second Reading, committee
stage (pp. 1–38, 71–126; PDF pp. 15–52, 85–140)
2
December 2005 committee stage, Third Reading (pp. 1–144; PDF
pp. 13–156)
Journals
12
October 2005: referral to Committee (pp. 1275–6; PDF pp. 17–18)
8
November 2005: a motion to extend the Committee inquiry was defeated
(pp. 1361–2; PDF pp. 15–16)
9
November 2005: motion to take note of answers (p. 1374; PDF p. 8)
10
November 2005: motion to take note of answers (p. 1402; PDF p. 18),
introduction and Second Reading (pp. 1405–6; PDF pp. 21–2)
28
November 2005: Second Reading (pp. 1415, 1433; PDF pp. 3, 21), tabling
of Committee report (p. 1421; PDF p. 9)
29
November 2005: Second Reading (pp. 1438, 1449; PDF pp. 4, 15)
30
November 2005: Second Reading (pp. 1454, 1462; PDF pp. 4, 12)
1
December 2005: urgency moved, Second Reading, committee stage, motion
to refer amendments to a Committee defeated (pp. 1467–70, 1471,
1475–89; PDF pp. 3–6, 7, 11–25)
2
December 2005: committee stage, Third Reading (pp. 1493–1626;
PDF pp. 3–136)
Employment, Workplace Relations and Education
Committee
Inquiry
into Workplace Relations Amendment (Work Choices) Bill 2005
Submissions
received
Transcripts of committee hearings: 14,
15,
16,
17,
18
November
Report,
released on 22 November 2005
Report on Workplace
Agreements, tabled 31 October 2005
Parliamentary Library publications
Key government documents
N.B. For a full list of key documents, see the Parliamentary
Library chronology
Papers on the constitutionality of a national employment
law
In date order; some of these articles are available to Parliament House
users only.
- Gonzalo Villalta Puig, ‘Constitutionality
of Workchoices’, Law Society Journal, vol. 44, no.
1, February 2006, pp. 64-7
- Louise Clegg, The
New Era of Uniform Industrial Relations: How Far Does the Corporations
Power Extend?, Constitutional Law Conference, Sydney, 24 February
2006
- A. Gray, ‘Precedent
and Policy: Australian Industrial Relations Reform in the 21st Century
Using the Corporations Power’, Deakin Law Review, vol.
10, no. 2, 2005, pp. 440–59
- R. McCallum, ‘The
Australian Constitution and the Shaping of Our Federal and State Labour
Laws’, Deakin Law Review, vol. 10, no. 2, 2005, pp.
460–9
- G. Williams, ‘The
Constitution and a National Industrial Relations Regime’,
Deakin Law Review, vol. 10, no. 2, 2005, pp. 498–510
- A. Stewart, ‘Workplace
relations: the revolution begins here’, New Matilda,
1 June 2005
- L. Johns, ‘National
IR system is logical’, HR Monthly, April 2005, pp.
36–7
- D. McCann, ‘First head revisited:
a single industrial relations system under the trade and commerce power’,
Sydney Law Review, 26(1), March 2004, pp. 75–106
- G. Williams, ‘The
first step to a national industrial relations regime? Workplace Relations
Amendment (Termination of Employment) Bill 2002’, Australian
Journal of Labour Law, 2003, 16(1), May 2003, pp. 94–8
- G. Williams, Submission
to the Senate Employment, Workplace Relations & Education Committee
Inquiry into the Provisions of the Workplace Relations Amendment (Termination
of Employment Bill) 2002, 6 February 2003
- N. Williams and A. Gotting, ‘The
interrelationship between the industrial power and other heads of power
in Australian industrial law’, Australian Bar Review,
20(3), February 2001, pp. 264–82
- S. Eichenbaum, ‘What
chance a single industrial relations system in Australia?’,
Law Institute Journal, 76(6) July 2002, pp. 66–9
- P. Lane, ‘Commonwealth
control of corporate industrial relations’, Australian Law Journal,
vol. 75(11), November 2001, pp. 670–2
- A. Stewart, ‘Federal
labour law and new uses for the corporations power’, Australian
Journal of Labour Law, 14(2) September 2001, pp. 145–68
- W. J. Ford, ‘Using
the corporations power to regulate industrial relations’, Employment
Law Bulletin, 6(9) January 2001, pp. 70–7
- W. J. Ford, ‘Reconstructing
Australian labour law: a constitutional perspective’, Australian
Journal of Labour Law, 10(1), March 1997, pp. 1–30
- W. J. Ford, ‘The
Constitution and the reform of Australian industrial relations’,
Australian Journal of Labour Law, 7(2) August 1994, pp. 105–31
- S. E. K. Hulme, ‘A constitutional basis for the federal coalition’s
industrial relations policy—and related matters’, Economic and Labour
Relations Review, 4(1), June 1993, pp. 62–76
- A. Stewart, ‘Federal regulation and the use of powers other than the
industrial power’ in ACIRRT Monograph No. 9, A New Province for Legalism:
Legal Issues and the Deregulation of Industrial Relations, Proceedings
of a Conference, 30 April 1993
- G. Lindell, ‘The
corporations and races powers’, Federal Law Review, 14(3),
March 1984, pp. 219–52
- D. Rose, ‘Comment
on the corporations power and the races power’, Federal Law Review,
14(3), March 1984, pp. 253-7
- J. O’Donovan, ‘Can
the contract of employment be regulated through the corporations power?’,
Australian Law Journal, 51(5), May 1977, pp. 234–46
For more general information, see the Parliamentary Library’s Employment
Law page, Industrial Relations
page, or the December
2005 issue [Informit users only] of the Journal of Australian
Political Economy (a special issue on the impact of the Work Choices
legislation).
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