REARGUARD OFFENSIVE

NSW Moves to Counteract WorkChoices

The NSW Government has passed a law to take unfair dismissal actions out of the industrial relations area and to beef up the powers of the Industrial Relations Commission – with the aim of undermining the federal WorkChoices reforms.

The Industrial Relations Further Amendment Act 2006, already in operation, aims to exploit an important exemption loophole in WorkChoices. The new federal legislation expressly says that many State laws are no longer applicable to those employers, especially ‘constitutional corporations’, who come under WorkChoices. But State OHS laws and Workers Compensation laws are notable exceptions to this provision.

As a result of this exemption, the NSW Government has embarked on a campaign of legal manoeuvring that will have the effect of delaying the transition to a national industrial relations system causing instability and uncertainty in the area of employment.

The new law amends three crucial NSW statutes – the Industrial Relations Act 1996, the Occupational Health and Safety Act 2000 and the Workers Compensation Act 1987 – principally to preserve some State unfair dismissal actions. It transfers the laws relating to OHS and workers compensation related dismissals from the Industrial Relations Act to the OHS Act and the Workers Compensation Act.

 

OHS Dismissals

The NSW Industrial Court has been given the power to reinstate employees in cases involving unlawful termination under the OHS Act.

This would cover those cases where an employee claims that they have been dismissed for making an OHS complaint or having a representative or some other OHS role or function. An action for reinstatement could be made to the Industrial Court even if the employer is convicted and fined for the unlawful dismissal under s 23 of the OHS Act.

 

Workers Compensation Dismissals

The ‘injured employee’ provisions of the Industrial Relations Act have been transferred to the Workers Compensation Act and have been expanded to cover all ‘workers’ as defined in the Workers Compensation Act.

This refers to the State law that prohibits the termination of an employee because of a compensable injury within 6 months of the injury (or within the period of accident pay in the relevant award, agreement or NAPSA if longer). It also covers the State law that says an employee who is lawfully terminated because of their injury has a right of return within 2 years of the termination if fit to resume work.

These State laws are preserved by the new amendments, regardless of whether the employer is covered by WorkChoices or not.

 

Dispute Resolution

The powers of the NSW Industrial Relations Commission to resolve disputes between parties covered by WorkChoices have been strengthened.

This means the IRC will be able to offer alternative dispute resolution services where the parties are bound by a federal workplace agreement. If the agreement does not provide for a dispute resolution mechanism, the IRC will be able to conduct dispute resolution in accordance with the federal model dispute resolution process.

 

Tribunal Cooperation

The amendments provide for the IRC to have the power to exercise functions conferred upon it under the industrial relations laws of other States. Joint proceedings with other State industrial relations tribunals will be possible.

This could lead to States (especially those inclined to work against the consolidation of a truly national system under WorkChoices) joining together for joint hearings of State wage and test claims.

 

Other Amendments

NSW has moved in the new laws to shore up its laws relating to outworkers and sub-contractors.

The provisions of the Clothing Trades (State) Award continue to apply to constitutional corporations employing outworkers, particularly as regards records, disclosure, registration and the giving out of work.

The law that prohibits the making of false sub-contractor declarations to a contractor has been extended.

 

Conclusion

Employers will rightly see the NSW move as creating confusion and instability. Legitimate actions under the federal Workplace Relations Act will expose employers to prosecution under State law, requiring the time and cost of defending proceedings. Small businesses in particular may be hit hard with State-sanctioned unfair dismissal claims. Those employers who are in transition to the new federal system could well face a barrage of actions sponsored by unions keen to undermine the national system.

Employers and employees alike will be forgiven for asking whether these rearguard tactics – legitimised by the NSW Government – will do anything to create jobs for workers in NSW.

 

 

Contact the Employers Hotline™ on (02) 9264 2000 if you need to know more.