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Excerpt from this article first published in Human Resources Magazine, Issue 127 - 10 July 2007
The federal legislation recognises that state laws about a number of matters, including workers compensation, occupational health and safety, child employment and long service leave, apply to federal system employers. What is subject to debate, is whether state awards that deal with any of those matters apply to federal system employers.
The debate has been fuelled by a number of recent decisions of the NSW Commission that place obligations on federal system employers to provide conditions of employment set by state awards.
In one recent case, the NSW Commission determined that it had the jurisdiction to make an award imposing safety obligations on employers in the transport industry, including federal system employers. The Transport Industry - Mutual Responsibility for Road Safety (State) Award was made as a result of that case.
In another recent matter, the NSW Commission adjourned an application, by the Construction Forestry Mining and Energy Union to make a new state award that would apply to federal system employers in the coal industry pending the outcome of a Federal Court appeal. The NSW Commission had earlier determined that it had the jurisdiction to make such an award. The proposed award deals with long service leave entitlements.
In accordance with the requirements of the NSW Industrial Relations (Child Employment) Act (the Act) the NSW Commission recently established a set of principles which must be applied to determine whether a federal system employer has provided a child with pay and conditions that do not result in a net detriment when compared to the pay and conditions that the employee would have been entitled to receive under NSW legislation, including the relevant state award.
Under the Act, federal system employers must ensure that employees under the age of 18 years receive pay and conditions that do not result in a net detriment when compared to the pay and conditions that the employee would have been entitled to under NSW legislation, including the relevant state award.
Employers will need to make themselves aware of developments in the law in this area.
Sharlene Wellard Adam Moulton
Senior Associate Lawyer
