WORKplace relations LEGISLATION

AGS provided significant input to the development, implementation and legal defence of the Work Choices amendments to the Workplace Relations Act. Our involvement in the project began in 2000, when AGS’s Richard Harding was outposted for 12 months to the then Department of Employment, Workplace Relations and Small Business, to lead a team preparing policy discussion papers on a corporations power based workplace relations system for Australia.

The scope of our involvement in this major reform increased dramatically during 2005–2006. From June 2005, two further AGS lawyers (Jenny Burnett with Sam Rosewarne, and later Helen Chisholm) worked with a large team of lawyers from the Department of Employment and Workplace Relations and a lawyer from each of seven private law firms to develop drafting instructions for the Workplace Relations Amendment (Work Choices) Bill 2005, and subsequently to work with the Office of Parliamentary Counsel in drafting the Bill. This AGS team’s advice centred on the constitutional issues that arose in the development of the Bill (in consultation with AGS’s Chief General Counsel, Henry Burmester AO QC).

Jenny Burnett remained outposted at the Department after the Bill was drafted, where she assisted with the development of the Independent Contractors Bill 2006 and the defence of the High Court challenge to the amended Workplace Relations Act. She has also provided advice on the interpretation of the amended Act and the new regulations.

In the period leading up to and following the commencement of the main provisions of the Work Choices legislation in March 2006, AGS lawyers delivered numerous general and agency-specific information sessions for AGS clients on the impact of the amendments on Commonwealth employers. The principal presenters for these sessions, which were held in all capital cities, were Richard Harding, Rodger Prince and Craig Rawson. From March 2006 a further team of lawyers from various AGS offices (including Leah Edwards, Nick Gouliaditis, Baden Powell, Jim Heard and Deborah Bennett) provided advice on workplace agreements to more than 30 Australian Government agencies.

Over six days in May 2006, the High Court heard several challenges to the constitutional validity of the amendments made to the Workplace Relations Act by the Workplace Relations Amendment (Work Choices) Act 2005. Proceedings were brought against the Commonwealth by all states except Tasmania, and by two groups of unions; in addition the Attorneys-General for Tasmania, the ACT and the Northern Territory intervened in the proceedings. A record total of 39 counsel appeared for the parties. The case has been described by some commentators as the most significant constitutional law case in Australia since the Engineers’ case in 1920.

AGS lawyers, including David Bennett, Andrew Buckland and Cathy Dowsett, acted for the Commonwealth in the litigation. Andrew headed this AGS team, which instructed six counsel including the Commonwealth Solicitor-General and AGS’s Chief General Counsel.

The High Court, by a 5–2 majority, upheld the validity of the amendments.

Jenny Burnett continues to be outposted to the Department of Education, Employment and Workplace Relations. Following the change of government in 2007 she advised the Department on the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (which was passed by the Parliament on 19 March 2008). Jenny Burnett and Nick Gouliaditis are now assisting the Department to prepare the main legislation to implement the Government's Forward with Fairness policy, which is expected to be introduced into the Parliament later in 2008.