Tristar ruling sets scene for 'real' national IR scheme: ACCI

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Tristar ruling sets scene for 'real' national IR scheme: ACCI

A major employer organisation has called for the States and the Commonwealth to work towards a 'complete' national IR system after the Federal Court ruling last week in the Tristar matter that State Industrial Commission could not deal with issues affecting corporations.

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A major employer organisation has called for the States and the Commonwealth to work towards a 'complete' national IR system after the Federal Court ruling last week in the Tristar matter that State Industrial Commission could not deal with issues affecting corporations.

The Federal Court ruling effectively closes down a NSW IRC hearing on the causes and resolution of the Tristar dispute and, in particular, whether the employees actually had any work to do.

Tristar has been accused of leaving more than 30 long serving employees idle in an attempt to avoid massive redundancy payments of six figure sums for each worker.

After the company's Managing Director, Cheng Hong, was called to the Commission last month to give evidence, the company went to the Federal Court to have the inquiry ruled invalid.

State laws ruled invalid

The Court has ruled that State industrial relations laws affecting a corporation are invalid unless those laws are specifically allowed for under Commonwealth law (WorkChoices).

The Australian Chamber of Commerce and Industry (ACCI) has welcomed the decision, saying it 'moves Australia a step closer to a national industrial relations system'.

Peter Hendy, ACCI Chief Executive, said the Federal Court had ruled that State industrial relations laws cannot validly operate except where the national laws permit.

'The Court made this decision by applying s109 of the Australian Constitution which declares validly made Commonwealth law to override inconsistent State law,' he said.

'Accept reality' says ACCI

ACCI called for two responses by governments following the decision:

  • State governments should accept the reality of national industrial relations powers and stop making industrial relations laws or exercise industrial relations powers that purport to affect companies and their employees, but which are now likely to be invalid. Continuing to do this misleads employers about the true state of law.
  • The Commonwealth and state governments should establish mechanisms for a constructive dialogue on how further intergovernmental agreements can be made to complete the national industrial relations system - similar to the agreements operating between the Commonwealth and Victorian government.

'Blow to open investigation'

However NSW IR Minister, John Della Bosca, said the Federal Court ruling was 'a blow to fair and open workplace investigations in NSW'.

He said the NSW Industrial Relations Commission was making real progress in getting to the bottom of the dispute.

'Only last month, the company's Managing Director revealed crucial information about the involvement of the Federal Workplace Relations Minister, [Joe Hockey],' Della Bosca said. 'Cheng Hong alleged Joe Hockey had requested management dismiss the workers, pay out their redundancies and re-employ them on individual contracts, at a meeting in January.

'The company then advised Mr Hockey they would not do this as they considered it illegal.'

Golden opportunity lost

Della Bosca said the NSW IRC had been tasked with examining the adequacy of NSW laws and the Commonwealth's WorkChoices system and make recommendations to improve their operation.

'With the Federal Court ruling NSW had no jurisdiction to hear the matter, a golden opportunity has been lost,' he said.

'WorkChoices is so dysfunctional and unworkable it requires the Minister to get directly involved with negotiations with management over disputes,' the Minister said.

Political stunt

However, Hockey said the clear facts are that the NSW Commission does not have the power to inquire into such Federal matters, and the inquiry had been a 'political stunt'.

'It never offered practical assistance to Tristar workers,' he said. 'In fact, instead of actually assisting the workers the Inquiry had the opposite effect by taking the focus off the real matter at hand, ensuring the rights and obligations of Tristar workers are met.'

Hockey said the current Federal Court action by the Office of Workplace Services was the correct place to enforce the rights of Tristar workers.

'If it is found that Tristar acted illegally, the Federal Court can order the payment of any monies that are due to workers and impose penalties on Tristar,' he said.

Breaches by Tristar to be considered

In a separate matter, the Full Bench of the AIRC has ruled that an earlier decision to terminate the Tristar collective agreement from February at the request of the company should be sent back for further consideration.

The Full Bench said that the original decision had not properly considered alleged breaches of the agreement by the company, and whether it would therefore be in the public interest to terminate it.

The redundancy section of the agreement was due to expire next February, but if the agreement is not terminated then they continue to apply until 12 months after the agreement is terminated.

Related

Tristar wins in Federal Court but under AIRC cloud

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

Commission warns Hockey over Tristar 'circus' comment

OWS hits Tristar with massive redundancy court action

Della Bosca moves to thwart WorkChoices OHS loophole


  

 

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