Awards and Enterprise Agreements in NSW and Commonwealth Industrial Relations Systems
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 03/1997 by Honor Figgis
- This paper begins with summaries of the systems of awards and enterprise agreements in New South Wales and the Commonwealth. It then looks at how federal and state awards and agreements are likely to interact, with some legal analysis. The paper also discusses some factors that influence whether industrial parties end up in the Commonwealth or the New South Wales systems. The New South Wales Industrial Relations Act 1996 retains a strong conciliation and arbitration system, with awards as its central feature. Enterprise agreements can be made with unions or directly with employees (pp 3-8).
- The Commonwealth Workplace Relations Act 1996 has reduced the scope of the conciliation and arbitration system. The Act provides for awards, certified agreements (usually collective agreements with unions), and Australian Workplace Agreements (agreements which may be made with individual employees or groups of employees). The Act encourages certified and workplace agreements, and restricts the scope and coverage of awards (pp 8-16).
- In general, federal awards and agreements continue to prevail over New South Wales awards and agreements. However, there are significant exceptions in the federal Act that protect some elements of the State systems from being overridden by the federal system (pp 16-24). For example, the federal Australian Industrial Relations Commission cannot now make an award if the employees whose wages and conditions are the subject of the dispute are covered by a NSW award or enterprise agreement, unless the Commission considers that a federal award would be in the public interest.
- Federal awards will prevail over NSW awards, but they may be displaced by NSW enterprise agreements. Federal certified agreements will prevail over New South Wales awards and enterprise agreements to the extent of any inconsistency, with some limited exceptions. Australian Workplace Agreements will completely exclude the operation of New South Wales awards and enterprise agreements, again with some limited exceptions (pp 16-24).
- There are several mechanisms in Commonwealth and New South Wales legislation to prevent and minimise conflicts between the federal and NSW industrial relations systems (pp 24-29). Despite these provisions, the two systems do not sit easily together, and the complexity of the relationship between the systems will almost certainly lead to litigation to determine how the systems will work together.
- As a result of a combination of factors, there is likely to be increased interest by unions and employees in moving to, or remaining in, the New South Wales industrial relations system. These factors include the increased scope of operation that the federal Act affords to the NSW system; the barriers erected by the federal Act to prevent parties covered by State awards or agreements moving into the federal jurisdiction; and the greater protection offered to employees by the NSW legislation (pp 28-30).