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
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- 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).
