NSW IR victimisation legislation not excluded by WorkChoices law

Cases

NSW IR victimisation legislation not excluded by WorkChoices law

A Full Bench of the NSW IRC has ruled that the NSW legislative provisions against victimisation in the NSW Industrial Relations Act have not been nullified by WorkChoices legislation.

WantToReadMore

Get unlimited access to all of our content.

A Full Bench of the NSW IRC has ruled that the NSW legislative provisions against victimisation in the NSW Industrial Relations Act have not been nullified by WorkChoices legislation.

The victimisation provisions at sec 210(1)(j) and sec 213 fell directly within those legislative exceptions to the operation of s16(1) of the Federal Workplace Relations Act 1996 that expressly stated the State laws relating to OHS, workers compensation and other specified employment matters, were not excluded by WorkChoices.

The decision confirmed that the victimisation provisions have survived to the extent that they are within the category of excepted provisions in s16(3) of the Workplace Relations Act.

Minister's submission accepted

The NSW IR Minister had contended that these provisions are both clearly directed to occupational health and safety, and are directed to the same objectives and have the same material legal effect. The Full Bench agreed with this submission. The full Bench stated:

'He [the Minister] also notes, correctly in our opinion, it would be absurd for provisions contained within the [NSW] OH&S Act (ss23 & 23A) to fall within the exceptions contained within s16(2) and (3), but for ss210(1)(j) and 213 of the [IR] Act to be excluded from the exception, by virtue of the fact that the former provisions fall within a "law with health and safety in its name" and the latter are "found within the I R Act".'

The case involved a long-serving crane driver dismissed by Brolrik Pty Ltd t/as Botany Cranes & Forklift Services in August 2006.
After he was dismissed, the CFMEU lodged a victimisation claim on his behalf.

CFMEU (NSW) (o/b of Hemsworth) v Brolrik Pty Ltd t/as Botany Cranes & Forklift Services [2007] NSWIRComm 205 (21 September 2007)

Related

Other legislation still relevant in the WorkChoices environment

  

 

Post details