WHS clauses okay in awards: FB of FWA

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WHS clauses okay in awards: FB of FWA

Fair Work Australia has reaffirmed that work health and safety provisions in federal Awards have a legitimate place.

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Fair Work Australia has reaffirmed that work health and safety (WHS) provisions in federal Awards have a legitimate place.

[Full text of this case: Master Builders Australia Limited [2012] FWAFB 10080 (12 December 2012)]
 
Employers had attempted to have the clauses relating to such matters as protective clothing and certain allowances excluded from awards.

Background
 
Master Builders Australia Limited and other employers sought to vary or remove what were termed ‘unlawful’ references to WHS matters in certain federal Awards.

The employers argued that these were legitimately state matters under Fair Work legislation.

The CFMEU argued that the clauses only became inoperative if there was a direct clash with state provisions.

Full Bench approves provisions
 
The Full Bench broadly agreed with the union position — noting:
‘It is clear that Division 2 of Part 1-3 of the Act does not deal with the lawfulness of the content in modern awards or any other instruments made under the Act. Its purpose is to provide interaction rules to operate in conjunction with ss.109 and 122 of The Constitution, with s.26 providing an express statement of an intention to cover a field and s.27 setting out the exceptions to that exclusivity set out in s.26.

Sections 26 to 30 are not directed to nor have the effect of enlarging or confining the matters which may lawfully be contained in a modern award. They are concerned with resolving issues relating to inconsistency of laws under s.109 of The Constitution and have nothing to do with the lawfulness or otherwise of what may be contained in a modern award ...’
The Full Bench categorised particular clauses in issue under appropriate industrial categories:
‘We are satisfied that this clause is about the type of employment, such as “shift work” …

We are satisfied that each clause is about allowances, including expenses incurred in the course of employment …

We are satisfied that the clause is incidental to minimum wages (including wage rates for junior employees) and skill-based classifications, with the restriction relating to a lack of experience (ss.139(1)(a) and 142(1)(a))…[etc]’
 
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