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NSW IRC has power to reinstate employees covered by a federal award

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 99, 7 March 2006

A Full Bench of the New South Wales Industrial Relations Commission (IRC) has held that it has the power to settle an industrial dispute by ordering the reinstatement of an employee covered by an award or certified agreement of the Australian Industrial Relations Commission (AIRC).

The decision in Union NSW v Carter Holt Harvey Wood Products Pty Limited overturned a previous decision of a Full Bench of the IRC Moore v Newcastle City Council re Civic Theatre Newcastle (1997).

The decision, however, may be of limited application. Amendments to the Federal Workplace Relations Act 1996 (Work Choices) due to commence in about late March this year remove the power of the IRC to settle disputes between unions and constitutional corporations.

Background

Mr Safanek was terminated by Carter Holt Harvey after he repeatedly refused to give the name of an employee he had reported for riding on the tines of a forklift. Carter Holt Harvey and the company’s employees were bound by a federal award and certified agreement.

Mr Safenek’s union, the CFMEU, made, and later withdrew, an unfair dismissal application to the AIRC. Unions New South Wales filed a dispute with the IRC. It stated that its reason for doing so was that Carter Holt Harvey’s assertion that Mr Safanek had an obligation under the Occupational Health and Safety Act 2000 was misconceived. Mr Safanek stated that he feared for the safety of him and his family if he revealed the name.

The New South Wales Industrial Relations Act already permits the IRC to order the reinstatement of employees when dealing with an industrial dispute between an employer and a union (an individual employee cannot notify an industrial dispute to the IRC). The IRC need not consider whether the dismissal was harsh, unjust or unreasonable. It must be satisfied, however, that there is a genuine dispute that arose from or caused the termination of the individual employee.

The Full Bench relied on an earlier Western Australian decision in determining that Moore was incorrectly decided and held that the New South Wales Industrial Relations Act should be presumed to apply to all employees unless a contrary intention is shown.

The IRC also found that there was no inconsistency between the notice of termination provisions of the federal award or certified agreement and the power to make orders to settle industrial disputes in the New South Wales IR Act. Neither the federal award nor certified agreement was a complete statement of the parties’ rights in respect of termination of employment.

There was also no inconsistency between the dispute settlement procedures of the federal award or certified agreement and the New South Wales Industrial Relations Act.

HR Tip

Following the impending coming into effect of Work Choices, the New South Wales Industrial Relations Act will have no application to constitutional corporations.

The Federal Workplace Relations Act does not give the AIRC power to deal with an industrial dispute by making an award or order reinstating a dismissed employee. This position will not change following the coming into effect of Work Choices.

The above decision does have relevance for non-constitutional corporation employers. Providing a union can show that an employee’s termination is the subject of a genuine industrial dispute by, for example, showing that the union’s members have or are prepared to take industrial action on behalf of the dismissed employee, a union may seek the reinstatement of a dismissed employee before the IRC.

Gordon Jervis
Senior Associate
Australian Business Lawyers