copyright  |  disclaimer  |  privacy policy  |  print ready

« back

Disputing a Commission's powers of jurisdiction

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 84, 12 July 2005

In CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23, the Full Bench of the NSW Industrial Relations Commission (NSW IRC) considered whether it had the jurisdiction to hear and determine an industrial dispute in relation to an employee employed under an AWA.

Newcrest operates the Cadia Hill Gold Mine. Its employees are employed under AWAs. Newcrest issued a final written warning against one of its employees under an AWA. The employee requested the CFMEU represent him under the Fair Treatment Procedure in the AWA. His request was denied.

The CFMEU notified an industrial dispute to the NSW IRC under the NSW Industrial Relations Act 1996 seeking its assistance in resolving the issue. However, Newcrest did not accept the NSW IRC’s jurisdiction to exercise any powers in relation to the dispute. Newcrest submitted that the AWA as an instrument made under the Federal Workplace Relations Act which exhaustively regulated all matters pertaining to the employment relationship and therefore precluded the NSW IRC from hearing and determining any industrial dispute about the employment of the employee.

The Full Bench of the NSW IRC determined that whilst an AWA could not prevent the NSW IRC from exercising its jurisdiction to prevent or settle an industrial dispute about the issuing of the warning. An AWA however has the legal effect of prevailing over any order or award made by the NSW IRC to settle the dispute to the extent there is any inconsistency with the AWA. Effectively, this limited the NSW IRC’s jurisdiction to conciliating the dispute including making a recommendation.

HR Tips

• To preclude employees seeking to preclude a Federal or State industrial tribunal resolving matters concerning the employment of an employee under an AWA, you should ensure that the AWA is drafted carefully to say this.
• Be prepared for the risk that a union will seek to represent employees who are under AWAs in Federal or State industrial tribunals.
  

Michael Seck
Senior Associate
Australian Business Lawyers