NSW Commission's award-making powers in context of WorkChoices

Cases

NSW Commission's award-making powers in context of WorkChoices

The NSW Industrial Relations Court has asserted the State Commission's role in a WorkChoices environment by rejecting arguments that the WorkChoices legislation has largely closed the door on State tribunals' powers to make awards impacting on corporations.

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The NSW Industrial Relations Court has asserted the State Commission's role in a WorkChoices environment by rejecting arguments that the WorkChoices legislation has largely closed the door on State tribunals' powers to make awards impacting on corporations.

This case involved an application by the CFMEU for long service leave provisions in a new award. The employer in these proceedings sought declaratory relief blocking the making of a new award to be known as the Coal Industry (Long Service Leave) Award 2006. A Full Court of the NSW Industrial Court rejected the employer's arguments — noting that WorkChoices does not cover all aspects of employment conditions.

Issue

The issue requiring adjudication was whether the NSW Commission’s accepted jurisdiction to make an award for long service leave pursuant to s10 and s11 of the NSW Industrial Relations Act [award making power] was excluded by the operation of s16(1) [Act excludes some State and Territory laws] of the Workplace Relations Act 1996 (Cth) ('WR Act').

Award making power continues

In finding in favour of the union the Full Court stated:

'We accept that the evident purpose of s16(1)[WR Act] is to establish a legislative field concerning prescription of the rights and obligations of employees and employers (as defined) and the regulation of their workplace relations in which the WRAct is to operate to the exclusion of any State or Territory law which, subject to the exceptions in ss16(2) and (3), intrudes upon that field: Re Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd [2007] NSWIRComm 50 ...

'Further, it may be accepted that the general purpose is relevant to the interpretation of s16. However, in interpreting the section, regard must also be had to the words of the exception as they appear in ss16(2) and (3), the context in which those subsections appear in s16 and ultimately the evident purpose of the legislature in expressly including a limitation upon the exclusion of State and Territory industrial laws.

' … we do not consider that the applicants have demonstrated as a general proposition that the legislature in s16 intended to exclude the general award-making power of this Commission as to long service leave.

[no inherent conflict]

'Further, we do not accept that there is an inherent conflict between the general thrust of the WRAct to set statutory minima and the Commission’s task under s10 of the [NSW] Act to set fair and reasonable conditions of employment ...

'We reject the relevance of the treatment of NAPSAs as somehow directing the reach of ss16(2)(c) and (3)(f). First, it does not recognise that, as noted by the respondent [union], existing State awards continue to exist under the State system notwithstanding the creation of NAPSAs.

'Secondly, it does not take into account that the WRAct is confined in operation to constitutional corporations and, as such, State arbitral systems will continue.

'Thirdly, it fails to recognise the context within which the provision was enacted, namely that it was without doubt that, at least as concerns long service leave, regulation was by way of statute and arbitral awards ...

'Finally, we reject the applicants’ assertion that the content of the list of 'non-excluded matters' shows that most of them have traditionally been dealt with by statute. Not only do we disagree with the factual basis of this assertion (as our earlier analysis of the Commission’s award-making power demonstrates), we also reject the relevance of it to the interpretation of the exception …'

Endeavour Coal and others v CFMEU [2007] NSWIRComm 70 (5 April 2007)

Related

WorkChoices: State IRCs will try ‘passive resistance’, say lawyers

Obligations on employers - in addition to WorkChoices

Other legislation still relevant in the WorkChoices environment

  

 

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