Work Choices: How Far Does It Go?

By George Williams

The federal government's Work Choices laws could affect many thousands more workers in education, health and child care.

Queensland is in the middle of a legal tug of war. The issue is whether local councils fall under Work Choices or the state industrial system. While Workplace Relations Minister Joe Hockey has written to councils urging them to sign up to Work Choices, this is being fiercely resisted by the Queensland government and the Australian Workers Union.

The High Court has said that an incorporated body is a trading corporation when it has "substantial trading activities," that is, when its trading activities "form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation."

Most Australian businesses formed to make money through buying and selling goods and services clearly fall within this definition. This is why the Howard government based Work Choices on the corporations power and why Justice Callinan in dissent in the High Court warned: "The reach of the corporations power, as validated by the majority, has the capacity to obliterate powers of the state hitherto unquestioned."

Despite this, it is unclear whether many other organisations employing thousands of workers fall under Work Choices. These bodies that lie at the edge of the federal scheme are often non-profit corporations that are involved only incidentally in trade and commerce. Many private schools, for example, fit into this category. Even where they have education and not profit as their primary goal, they can still be a constitutional corporation if they do enough trading, such as through collecting school fees and selling memorabilia.

Australian Policy Online