NSW IRC doubts constitutionality of one IR system

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NSW IRC doubts constitutionality of one IR system

Three senior judicial members of the NSW IRC have expressed doubts about the legal constitutionality of the proposed moves by the Federal Government to move IR powers from the states to the Federal Government.

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Three senior judicial members of the NSW IRC have expressed doubts about the legal constitutionality of the proposed moves by the Federal Government to move IR powers from the states to the Federal Government.

In this case the Full Bench of the NSW IRC found in favour of the CFMEU, confirming that the NSW IRC had power to conciliate and arbitrate a dispute involving a worker employed under an AWA by Newcrest Mining.

Intervenors in the case were: Commonwealth of Australia; Attorney General for NSW; and Labor Council of NSW.

Company argument rejected

Newcrest had argued that the federal AWA laws covered the field and so there was no role for the State Commission.

However, the Full Bench stated that the federal corporations power could not be used to prevent the NSW IRC from making common rule awards or exercising its conciliation and arbitration powers. The engagement of the worker under an AWA was insufficient to exclude the power of the NSW IRC in these respects.

The relevant Commonwealth law

Central to the issues were the following sections from the Workplace Relations Act 1996 (Cth):

  • 170VQ. Effect of AWA on awards and agreements
  • 170VR. Effect of AWA on other laws
  • 170VS. AWA binds employer's successor
  • 170VT. Parties must not breach AWA
  • 170VU. Industrial action etc. by party to AWA

Full Bench comments

Some key points made by the Full Bench were:

'… Section 51(xx) [corporations power in the Constitution] does not authorise a law that goes so far as to extinguish the [NSW] Commission's jurisdiction to deal with industrial disputes by conciliation and arbitration.

… Section 170VR(1) provides that an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency. We note that the definition of "State law" in s 170VR(5) does not include a State award or State agreement.

... Section 170VR does not evince an intention to cover the field in respect of matters pertaining to the relationship between an employer and employee in circumstances where an AWA applies to the relationship.

… Section 170VR(1) provides that "Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency." Section 170VR limits the field covered to "conditions of employment".

The provisions of Pt 1 of Ch 3 of the [NSW] IR Act cannot be described as "conditions of employment specified in a State law". The proper characterisation of Pt 1 of Ch 3 is a law that provides for notifications by organisations and persons of industrial disputes and the resolution of those disputes by means of compulsory conciliation and arbitration.

...We find that the respondent has not made out its case either on the basis of the "cover the field" test or the "direct inconsistency" test that Pt 1 of Ch 3 of the Industrial Relations Act 1996 has no operation in the manner claimed by the respondent.'

CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 (21 February 2005) - Walton J Vice-President; Boland J; Staff J - 21/
 
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