NSW IR laws back-dated to thwart WorkChoices

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NSW IR laws back-dated to thwart WorkChoices

NSW employers hoping the WorkChoices legislation comes down before their State consent awards are deemed to be enterprise agreements under the State’ Government’s recent IR law amendments - and thus exempt from WorkChoices until they expire – are seemingly doomed to disappointment.

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NSW employers hoping the WorkChoices legislation comes down before their State consent awards are deemed to be enterprise agreements under the State’ Government’s recent IR law amendments - and thus exempt from WorkChoices until they expire – are seemingly doomed to disappointment.

NSW provision

Under the NSW amendments, the deemed enterprise agreement commences on ‘the day before’ the WorkChoices transitional provisions commence, whenever that might be.

The newly deemed enterprise agreement will have the same expiry date as the award it supersedes. The amendment also allows parties to apply to the Industrial Relations Commission to determine whether the deeming amendment applies to their award.

Will NSW amendment work?

However doubt has been cast as to whether this amendment will work.

Dick Grozier, Director of Industrial Relations at Australian Business Industrial, says that WorkChoices defines a ‘state award’ as an award, order, decision or determination of a state industrial authority, which includes consent awards.

However a ‘state employment agreement’ is an agreement between an employer and employee(s) or union(s) in force under a state industrial law which prevails over any inconsistent state award(s).

Grozier points out that enterprise agreements are ‘approved but not made’ by any order of the Commission and prevail over awards.

The question

He said the question therefore was whether the NSW Government had the power to transform one kind of industrial instrument into another.

‘As well, it does not seem likely that the Commission could make an effective determination after WorkChoices commences since the IR Act will no longer apply to these employers, and functions or powers conferred on a state tribunal by a notional agreements preserving state awards (NAPSA) or preserved state agreements (PSA) (which includes any term of employment conferred by a state industrial law) must not be exercised by that tribunal,’ Grozier said.

What NSW legislation is attempting to do

The new legislation, which passed through State Parliament on December 9, makes five amendments:

  1. permitting the IRCNSW to resolve disputes where it is empowered to by agreement of the parties
  2. removing the requirement that a full bench have a commissioner sitting on it
  3. allowing the President to make orders about particular proceedings or classes of proceeding as part of his capacity to direct the business of the Commission
  4. deeming some consent awards to be enterprise agreements operative on the day before the commencement of WorkChoices
  5. continuing the effect of the Clothing Industry (State) Award and the outworker unpaid remuneration provisions of the IR Act on constitutional corporations.

Outworker amendment

Grozier says the outworker amendment appears to be trying to take advantage of the exclusion of the operation of state industrial legislation under WorkChoices.

State industrial legislation is excluded from constitutional corporations except for matters relating to outworkers including entry for a purpose connected with outworkers.

Complicated amendments

Grozier says the relationship between the state IR Act and the federal WorkChoices legislation is very complicated and it is difficult to anticipate the actual impact of the amendments.

He said amendments one,  four (dealt with above) and five are the most important.

Dispute resolution

Regarding the amendments permitting dispute resolution through the State IRC, the amendment allows:

  • a union registered under the NSW Act and one or more employers or employer organisation registered under the NSW Act (or association of contract carriers, drivers or bailors) which are parties to a dispute to agree in writing to have the IRCNSW exercise identified powers;
    • such as conciliation, arbitration, granting a remedy such as re-instatement, varying or voiding an unfair contract, or awarding 'goodwill';
    • about any conditions of employment, industrial matter or matter concerning a contract of carriage or goodwill.

The IRC’s outcome would not be binding unless the referral agreement provided that it was.

Employers under WorkChoices

WorkChoices applies to the exclusion of the (NSW) Industrial Relations Act 1996.

The normal IRCNSW dispute, dismissal and unfair contracts provisions do not apply to employers under WorkChoices. WorkChoices also imposes a model dispute settlement procedure which requires that:

  • the parties must genuinely attempt to resolve the dispute at the workplace, and if they cannot resolve it,
  • a party may elect to use an alternative dispute resolution process ('ADR') to attempt resolution.

Alternative dispute resolution

ADR includes conferencing, mediation, assisted negotiation, neutral evaluation, case appraisal, conciliation, arbitration or some other determination of rights. It should be conducted by an agreed person.

The model procedure applies to:

  • disputes about the application of the Fair Pay and Conditions Standard (hours, rates, parental, personal and annual leave), the meal breaks standard or the public holidays standard
  • disputes between an employer and its employees about the terms of a workplace agreement made under WorkChoices, unless the agreement provides differently
  • disputes about matters arising under an award between persons bound by it (a current federal award after WorkChoices starts; a federal award applying under WorkChoices; or a state award or agreement continuing to apply to an employer under WorkChoices) but not to disputes arising under a pre-reform certified agreement which continues to apply under WorkChoices.

Mandating union involvement in dispute resolution is prohibited content for workplace agreements, as is providing a remedy for unfair dismissal.

Besides, state unions cannot enter workplace agreements, although one which obtains transitional federal registration is able to.

Grozier says it would seem difficult to provide the type of agreement required by the new IR Act amendments as part of the dispute resolution procedure in a workplace agreement or as an ongoing ‘side agreement’ without offending freedom of association provisions (i.e. forcing someone to be represented by a union).

Employers not under WorkChoices

Grozier says the amendment is not directed towards small employers (most non-constitutional corporations are small employers) but non-constitutional corporations, or employer organisations, could enter into a dispute settlement agreement with a union affecting non-constitutional corporation members.

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