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News News Fariness test appeal lengthy and expensive
Parties wanting to challenge agreements approved by the Workplace Authority under the new fairness test would have to go to the High Court, according to legal advice to the ACTU from Maurice Blackburn Cashman. MBC's Josh Bornstein told Workplace Express that a High Court challenge under s75(v) of the Constitution was the only "theoretical but not very practical option" for reviewing decisions by the WA Director.

Applicants could not challenge the merits of the decision but would have to prove jurisdictional error by the WA Director, and would have to pay an estimated $15,000 to $25,000, with the possibility of a similar amount in an adverse costs award, he said.

In any event, the Court was likely to order the Workplace Authority Director to make a new decision, which could include the approval of the AWA even if it was the subject of a successful challenge, he said.

The fairness test legislation does not entitle parties to be provided with reasons for a decision, making a legal challenge even more difficult. The Authority's decisions are to be made behind closed doors with no right for parties to have a hearing or make submissions, Bornstein said.

The High Court was the only option because the legislation provides no avenue of appeal and decisions under the Workplace Relations Act are excluded from review under the Administrative Decisions (Judicial Review) Act, he said.

It was highly unlikely that any lawyer would advise an employee to proceed with such a case, Bornstein said.

"A 16-year-old who signed an AWA is not going to go to the High Court," he said.

Workplace Relations Minister Joe Hockey, speaking on ABC Radio's AM program this morning, labelled the advice "another political trick" from Labor Party and the unions, saying the Government was "putting in place the same mechanism that existed for the no-disadvantage test, which was around for 10 years".

If workers had a problem with the approval of an agreement, they could talk to the Workplace Authority, he said.
 
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