HON GIZ WATSON (North Metropolitan) [3.58 pm]: The Employment Dispute Resolution Bill 2007 develops the role of the WA Industrial Relations Commission in the provision of dispute resolution and mediation services. Parties to employment disputes will have the opportunity through this bill to avail themselves of the WAIRC’s extensive experience in industrial dispute resolution. I understand the intent of the bill is to expand state law that has expressly been made inoperable by the federal WorkChoices legislation. 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, and by the Northern Territory and the Australian Capital Territory. The case was heard from 4 May 2006 to 11 May 2006. Challenges from the Australian Workers’ Union, Unions NSW and other unions were heard at the same time as the challenges from the states and territories. A decision was handed down on 14 November 2006. The court decided 5-2 in favour of the validity of the legislation, with Justices Kirby and Callinan dissenting. This left the states with jurisdiction over sole traders and partnerships. The Employment Dispute Resolution Bill develops the role of the Western Australian Industrial Relations Commission in the provision of dispute resolution and mediation services. It essentially allows the WAIRC to act as a mediator in industrial relations disputes. This means that even if one is employed under a federal collective agreement, one can still use the WAIRC to mediate. I understand that New South Wales and Queensland have already legislated in a similar way. This promises to be an informal, easily accessible, expedient and efficient process.
I understand that there is still the possibility that the federal act might override the Western Australian legislation—perhaps also the New South Wales and Queensland legislation—on the grounds that commonwealth law prevails and that no state act can interfere with the operation of a federal act. I also understand that the New South Wales legislation and the Queensland legislation have not yet been tested in courts—although they may have recently; I made these notes some time ago. It is unclear whether they are valid. I repeat that although the state laws have not been tested in court, I am confident that they will hold up to legal challenges, and I am satisfied that the constitutional implications have been considered by the Western Australian government in the drafting of this bill.
Traditionally there have been a range of methods available for the resolution of disputes over the terms and conditions of employment agreements. These include grievance procedures, mediation, negotiation, conciliation and arbitration. The new avenue for the WAIRC will only be available if both parties to the dispute are in agreement. This is a valid proposal and it will enhance access to speedy dispute resolution mechanisms. This is often needed in workplace disputes.
I will share with members some information I received while considering this bill. I sought advice from the Employment Law Centre of WA (Inc), which is a community legal centre based in Inglewood. It is the only community legal centre in WA that focuses specifically on employment law. I received a letter from Toni Emmanuel, principal solicitor at the centre, outlining the views of the Employment Law Centre on this matter. It states —
As discussed a few weeks ago, ELC supports the amendments contained in the proposed State industrial relations reforms. ELC expects that these amendments would prove beneficial for many of its clients, particularly those who were disadvantaged by the introduction of the Work Choices amendments.
In particular, it is ELC’s view that the following proposed amendments [referring to all three industrial relations bills before the house] would provide substantial benefit for ordinary working Western Australians:
- mediation of employment related claims in the Magistrates Court by Western Australian Industrial Relations Commission (WAIRC) Commissioners;
- reinstatement of protections for children which were removed by the Work Choices amendments (for example, that employers of children must comply with a comparable State award notwithstanding the operation of any workplace agreement which would purport to remove such protections);
- requirement that children employed as independent contractors still be entitled to benefits under a comparable State award;
- children (including those who are employed as independent contractors) employed by constitutional corporations to be able to apply to the WAIRC in relation to unfair dismissal and denial of contractual benefit claims (with the latter claims being able to be retrospective to 27 March 2006);
- limits on unpaid trial work performed by children (to not more than 7 hours per day per calendar year);
- procedural ease in transferring a claim mistakenly made under the Children and Community Services Act 2004 (WA) on the basis that the employer is a constitutional corporation to a claim made under the Industrial Relations Act 1979 (WA);
- provision of a process for conciliating and resolving workplace bullying in the Occupational Safety and Health Tribunal;
- reinstatement of a process for conciliation and resolving denial of contractual benefit claims for those employed by constitutional corporations;
- alternative dispute resolution conducted by the WAIRC by agreement of the parties; and
- removal of the salary cap in relation to unfair dismissal and denial of contractual benefit claims
That is the feedback I received from the Employment Law Centre. The Greens (WA) enthusiastically support this package of three bills that seeks to redress the imbalance created by the federal WorkChoices legislation. I again make the comment that it has taken a very long time for these bills to reach the Legislative Council; the Greens (WA) would have enthusiastically supported the bills many years ago.