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Monday, 4 November 1996
Page: 5025


Senator COONEY(6.00 p.m.) —I have one question following what Senator O'Brien and Senator Jacinta Collins have said in regard to the concept of the part the unions will play and the part that the commission will play in the system. The part that the commission seems to be playing in the scheme, as suggested through the amendments we are talking about, and the use of the word `maintained', is that somehow the commission itself, without the unions, will be able to do it.

Senator Murray has said that that could be initiated by small business, and I think Senator Collins and Senator O'Brien dealt with that. What adds some weight to the way this side of the chamber looks at how the commission is to work under the new system is the deletion of the present section 90AA in the act, which uses similar words to those used in 88A and 88B. The present 90AA(2) reads:

In performing these functions, the commission must:

(a) ensure, so far as it can, that the system of awards provides for a secure, relevant and consistent wages and conditions of employment: and

Under the present act, what that would seem to mean is that, when the commission has the opportunity, as it would if there was a dispute, it ought to do these things.

The words `so far as it can' limit what the commission can do. They limit it, I would suggest, to the present constitutional limits that are put on it. For some reason, when you go to 88B—I know we have not come to that yet but it is related to 88A, and how you read 88A—the words `so far as it can' have dropped out and you use the expression `must ensure'. When you move from one piece of legislation to another and you purposely leave out certain words, then I would have thought a court and a commission ought to take note of that.

I was wondering how a court would treat the leaving out of the words `so far as it can' that are in the present act. I would have thought that what they would say is that the whole thrust of 88A, taken with 88B and the fact that 99A(2) is repealed, means that this particular piece of legislation is set up on the basis that the commission itself has somehow the constitutional ability to set minimum wages and standards on its own, which would be a very interesting development in constitutional law.