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Excerpt from this article first published in Human Resources Magazine, Issue 120 - 23 January 2007
In a landmark decision handed down last November (2006) the NSW Industrial Relations Commission has made a new state award which is binding on constitutional corporations notwithstanding the introduction of the Work Choices legislation on 27 March 2006.
The new state award made by the Commission arises out of an application by the Transport Workers Union for an award imposing driver fatigue management obligations on employers and others in the road transport industry that operate wholly or partly in NSW. The award requires an employer to prepare a Safe Driving Plan for long distance heavy vehicle trips. The award also requires employers in the transport industry to provide basic health and safety training to all drivers and to implement a workplace drug and alcohol policy for drivers.
During the case, a legal controversy arose concerning the Commission’s ability to impose award obligations on those employers covered by the Federal Government’s Work Choices legislation. In short, the transport industry’s legal team argued that Work Choices abolished the power of state industrial tribunals to impose award obligations on employers that were corporations.
The Commission noted that although Work Choices was designed to override some state and territory industrial laws, it did not override state and territory laws dealing with occupational health and safety. The Commission ultimately concluded that it had power to make awards binding on corporate employers where the subject matter of the award relates to occupational health and safety.
It will be interesting to see whether the Federal Government seeks to amend the Work Choices legislation to close off the opportunities for state industrial tribunals to regulate health and safety through awards. After all, one of the Federal Government’s key motivations for introducing the Work Choices legislation was the creation of a single national system of industrial relations for all corporate employers. It is clear from the Commission’s decision that, at least for the moment, corporate employers are not necessarily beyond the reach of state industrial tribunals.
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