Does FW Act supersede state employment law?

Cases

Does FW Act supersede state employment law?

WA's Industrial Relations Act 1979 was not superseded by the Fair Work Act in relation to claims against private companies, the Commission has ruled.

WantToReadMore

Get unlimited access to all of our content.

An employer has failed in its argument that the Fair Work Act superseded the Industrial Relations Act 1979 (WA); accordingly, its argument that the state legislation did not apply to the enforcement of a contract of employment also failed.

Darryl Anglesey brought a claim before the Western Australian Industrial Relations Commission to enforce his contract of employment with Timberglen Pty Ltd. 

However, the employer argued that the Western Australian Industrial Relations Commission did not have the jurisdiction to hear and determine such claims because the advent of the Fair Work Act 2009 (Cth) superseded the Industrial Relations Act 1979 WA

Legal argument


Timberglen pointed specifically to s26 of the Fair Work Act which states that it is intended to apply “to the exclusion” of all State and Territory industrial laws. The section goes on to define an “industrial law” as being a State/Territory Act that applies to employment and has among its main purposes the establishment or enforcement of the terms or conditions of employment.

A further subsection of the Fair Work Act then explicitly names the Industrial Relations Act 1979 of Western Australia as a law that is excluded. 

It was then pointed out by Timberglen that s27 of the Fair Work Act has a long list of laws and regulations that are specifically not exempt from that Act.

And the Industrial Relations Act 1979 WA is not among them. 

“Timberglen Pty Ltd argues that it would be a strange result if… [the]… federal Parliament intended to oust State legislation that provided for the establishment or enforcement of terms and conditions of employment… but also intended to allow State legislation which provided for claims for the enforcement of contracts of employment… to operate,” Commissioner D J Matthews said, summarising the employer’s arguments. 

Ruling: a good argument… but wrong


However, the  Commissioner did not accept the employer’s submission. “The argument is interesting and was well put but, in my view, fails.”

The Commissioner noted that no argument was advanced that the WA act did not give the WA Industrial Relations Commission the jurisdiction to hear and determine claims for the enforcement of employment contracts. Federal Parliament “must” have known that the WA Commission had that power when it passed the Fair Work Act, it was added. 

Having excluded the operation of the WA Act,  the federal Parliament then “expressly ruled [it] back in” the Commissioner said – although no authority was advanced to support this reasoning. A distinction was then drawn between the phrase “enforcement of terms and conditions of employment” as used in s26 of the Fair Work Act and the phrase "enforcement of contracts of employment" as used in s27.

Commissioner Matthews then added that it was “unnecessary to decide for present purpose what is the intended difference.” 

The Commissioner then held that the WA Industrial Relations Commission had jurisdiction to hear the claim. 

Darryl Wayne Anglesey -v- Timberglen Pty Ltd [2017] WAIRC 364 (22 June 2017)
 
Post details