Federal and State awards with similar coverage can apply to an employer

Cases

Federal and State awards with similar coverage can apply to an employer

Although a Federal award will override any directly clashing State award, it did not follow that both a Federal award and a State award could not apply to a group of employees at one workplace - as long as the State award provided coverage of some classifications that was different from the Federal award.

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11/03

 

Although a Federal award will override any directly clashing State award, it did not follow that both a Federal award and a State award could not apply to a group of employees at one workplace - as long as the State award provided coverage of some classifications that was different from the Federal award. 

This was the essence of the ruling of a Full Bench of the AIRC in a matter involving award coverage for certain labour-hire employees.

Application by labour-hire firm

The employer, Select, submitted that the State award proposed by the AMWU(WA) would overlap to a large extent with the terms of the existing Select Federal award and that would be undesirable.

Conclusions

The Full Bench ruled against the employer:

'...while it is desirable that overlapping be minimised, because of the prevalence of State common rule awards, often employers are covered by awards in more than one jurisdiction under the existing legislative arrangements.

'In this case it does not automatically follow that because a Federal award applies to Select's operations there is no room for the application of a State award.

'The scope of the Select award is limited by reference to the scope of the eligibility rule of the AWU. While we are unaware of the limits on the State Commission's jurisdiction in the AMWU(WA) application, there is the potential for the range of classifications covered by any new State award to be greater than the range covered by the Select award.

'To the extent that classifications covered by a State award are not covered by a Federal award there is of course no overlap.

'It appears that the State Commission has not yet had the opportunity to consider whether, in light of the existence of the Select award, if made the new award should apply to Select. If it is decided that a new award should be made and that it should apply to Select, a further question would arise as to whether the area of employment covered by the Select award should be excluded from the new award's scope.

'While we are unaware, except in a general sense, of the discretionary considerations which the State Commission will bring to bear in hearing the AMWU(WA) application, we assume that the avoidance of unnecessary overlapping of awards and jurisdictions will be given due weight.'

The Full Bench considered the current application to be premature and so declined the application.

See: Select Industrial v AMWU WA branch. PR940339 - FB of AIRC - Giudice P, McCarthy DP and Smith C - 11 November 2003.

 

 

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