20 Years Ago

Matthew Robinson, Partner

This article was written by a human, not an AI Bot pretending to know.

20 years ago today was 27 March 2006 and the commencement date of the infamous WorkChoices. This is a day etched into every industrial relations practitioner’s brain (perhaps those of a certain vintage!) and a day that fundamentally changed the industrial relations landscape in the country. I would argue that it represented the biggest change since the Harvester judgment in 1907. Whilst the legislation did not stand the test of time, being the subject of substantial amendments and ultimate repeal on 1 July 2009, it shifted the landscape from which there was no going back.

All throughout the previous week, I had been dashing through the halls of the beautifully restored sandstone New South Wales Industrial Relations Commission from one Award variation case to the next. The New South Wales state institutions were battening down the hatches for the tidal wave about to hit them and the State’s working conditions. On 27 March 2006, WorkChoices came to life and filled us with bizarre new acronyms from APFC, AFPCS, APCS, FMW, OEA, NAPSAs, PSAs and new institutions and concepts such as Workplace Ombudsman, prohibited content, protected award conditions, preserved award terms and the old chestnut of termination “for genuine operational reasons or for reasons that include genuine operational reasons”. I’ve lost count how many times I’ve typed these acronyms and words. The proud state-based industrial relations commissions largely went silent but for legacy matters. No more “s106” unfair contract claims.

WorkChoices moved Australian industrial relations out from a complex web of State based systems running alongside a Commonwealth jurisdiction- the outlier being Victoria, which had referred its IR powers in the 1990s. Business and unions often “manufactured” interstate disputes to obtain access to the AIRC Awards. There were Common Rule Awards, Roping in Awards, as well as State Awards and IR Acts- rates of pay and working conditions changed for businesses depending on where their labour was based. WorkChoices largely wiped that system out and replaced our industrial landscape with the constitutional foundation not via the conciliation & arbitration power but via the corporations power. The High Court decision of NSW v Commonwealth [2006] HCA 52 solidified this position and paved the way for future Commonwealth industrial legislation to provide almost uniform governance across Australian workplaces. Minimum working conditions in Hobart could be the same as those in Coolangatta.

WorkChoices was a massive overreach by the Howard government who introduced it without any real election mandate to justify the need for change and for it to take such a political risk. I mastered those laws but hated its structures. WorkChoices appeared to be disconnected to how Australians felt about their workplace laws and directly impacted job security. It lit a fire in the Union movement who rallied around a common cause producing successful attack advertisements that would provide a handy blueprint for future opposition to a proposed Minerals Resources Rent Tax. WorkChoices was meant to be a gift to business. But ultimately it led to the Howard government being wiped out by the “Kevin 07” wave and the long standing Prime Minister not only being removed from government but also removed from Parliament by an ex-ABC journalist by claiming his seat of Bennelong. As a band aid solution the Rudd Government introduced amendments to WorkChoices in February 2008 via the aptly named Forward with Fairness legislation- we colloquially nicknamed it WorkChoices Diet©.

By mid-2009 WorkChoices had been put to rest- with the then Opposition Leader Tony Abbott claiming in 2010 that "Work Choices is dead, it's buried, it's cremated" -despite the incongruous notion of undertaking cremation after a burial. The Fair Work Act 2009 (Cth) was born on 1 July 2009 and introduced us to new acronyms such as NES, IFAs, FWA & FWO. Bright and shiny Modern Awards began on 1 January 2010 after an amazing effort by the AIRC. These Modern Awards replaced thousands of historic Awards and wiped away countless hours of conciliations, arbitrated cases and deals done in cigarette smoke filled hallways of many State based industrial commissions.

The Fair Work Act 2009 (Cth) owes its legacy, in no small part, to that brutal day on 27 March 2006. The day when the country’s industrial relations systems emerged from a series of quasi-colonial patchwork laws and towards a national system. Not all macroeconomic reforms are positive, but sometimes they can lead to positive things. Over the 16 years since the introduction of the Fair Work Act 2009 (Cth) we have seen a huge array of changes in our society driven by technology, epidemic and opportunistic exploitation. These changes, in addition to the change of the political winds, have generated a dizzying array of technical amendments to the legislation that make it diƯicult for all of us to keep track of. Looking back, the working arrangements for casuals became a rope in a tug of war, knives sharpened ferociously for wage theft, Job Keeper rorts, enterprise bargaining got bogged down in overly technical matters and then sprang back to life. The High Court common law test for employees v independent contractors sits at odds with responsive amendments to statute. Adverse action cases grow like weeds in a paddock, WFH, SJSP, right to disconnect, fixed-term contract prohibitions, pay secrecy, regulated workers on digital labour platforms, along with a host of other changes. And unsurprisingly to no-one, there are more scandals and criminality within the building industry! Twenty years on from WorkChoices we have, with a few minor exceptions, a national industrial relations system. The once young and slender Fair Work Act 2009 (Cth) has now developed a middle aged spread of legal complexity. WorkChoices ended as a failed political venture but its legacy lives on. To borrow from Paul McCartney & John Lennon:

It was 20 years ago today, Sergeant Pepper taught the band to play

Happy Birthday WorkChoices (well kind of)!