Labor under Kevin Rudd will be better placed than the Howard government to achieve a national industrial law under the Constitution. WorkChoices covers 85% of the workforce, while a labor model could increase that to 100%.

The federal Parliament does not have a general power over industrial relations. The closest is the power over “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. This power is not broad enough for a national industrial law. It does not apply to all disputes, nor can it be used to set minimum general conditions on matters such as unfair dismissal, superannuation or parental leave.

This explains why both the Coalition and Labor have looked beyond this power. For the former, the focus has been on the Parliament’s power over corporations. With the High Court upholding WorkChoices, this heralded a major expansion in the scope of the corporations power. This cut both ways. What the Howard government used for its law, a future Labor government can apply to the opposite effect, such as to guarantee that the employees of corporations have a right to collective bargaining.

Labor could also turn to the power over “external affairs”, as famously relied upon by Prime Minister Bob Hawke in 1983 to prevent the damming of the Franklin River in Tasmania. A rich source of international law is the work of the International Labor Organisation. The Howard government has not relied on these conventions because they tend to be consistent with principles such as collective bargaining, and thus ill-suited to a law like WorkChoices.

There is a final alternative. The Constitution says that the States can refer power to the Commonwealth, which they have done in areas such as terrorism and family law. Rudd has already put this on the table and has the support of several Labor States.

A referral or other forms of corporation or harmonisation offer a way for continuing State involvement in the drafting and enforcement of a national law. In our federal system such co-operation is often preferable to the political conflict and legal disputes brought about by seeking to override the laws of the States. This approach also has the advantages of security and simplicity. It would provide an unassailable constitutional foundation for a one-stop national law on employment that covers all workers.

George Williams is the author with Professor Andrew Stewart of Work Choices: What the High Court Said (Federation Press, 2007)