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Excerpt from this article first published in Human Resources Magazine, Issue 139 - 16 October
2007
The Australian Industrial Relations Commission (“the Commission”) recently granted an application by Tri Distributors Australia Pty Ltd (“the Employer”) to transfer from a NAPSA to a federal award because the NAPSA was in breach of the industry code and guidelines.
The Employer operates within the building and construction industry. Its employees were previously covered by the pre-reform state award - Rubber and Plastic Industry Award - State 2003 (“the NAPSA”). Successful tender for Federal Government projects and continuance of major infrastructure projects is dependant upon compliance with the National Code of Practice for the Construction Industry (“the Code”) and the Australian Government Implementation Guidelines - June 2006 (“the Guidelines”). The Employer was notified by the Department of Employment and Workplace Relations that the NAPSA was not compliant with the Code and Guidelines and that compliance would be achieved if the Employer became bound by the Rubber, Plastic and Cable Making Industry - General - Award 1998 (Transitional) (“the Federal Award”).
The Employer made an application under section 558 of the Workplace Relations Act 1996 (“the Act”) to transfer from the NAPSA to the Federal Award.
In granting the application, the Commission took into account that a valid majority of the employees who would be bound by the Federal Award supported the application, that the Federal Award was appropriate to regulate the terms and conditions of the employment of those employees. With reference to the Act, the Employer successfully submitted that it would cease to be bound by the NAPSA when the Commission grants the application making them bound by the Federal Award.
Employers who intend to tender for government work need to consider whether the industrial instrument regulating the employment of its employees is compliant with the Code and Guidelines.
Where a federal award is more appropriate for employees, employers may consider applying to the Commission to transfer from a NAPSA to a federal award.
Sharlene Wellard
Senior Associate
